Judge rejects Probst guilty plea

January 26, 2007 

The plea agreement was signed, the crime freely admitted.

Gary Probst, Washington’s deposed drive-school king, uttered the magic words. How did he plead to the charge of first-degree theft?

“Guilty, your honor.”

The next step looked automatic: Thurston County Superior Court Judge Richard Strophy was poised to sign the order and set a sentencing date – except he didn’t.

Instead, Strophy rejected the plea agreement at the last moment Thursday, unconvinced that theft and tax evasion were the same thing.

In the process, he handed Probst a tiny victory: a two-week delay that could lead to an amended plea or a trial.

Hairline cracks shot through a pillar of the state’s multitiered case against Probst. His 41 driving schools around the state closed recently, but a guilty finding on the theft charge would put a felony on his record, officially barring him from teaching driving or owning a driving school for the next decade.

Suddenly that prospect was fading. Assistant attorney general Scott Marlow was stunned. Even Probst’s attorney, Rick Klessig, was taken aback. The lawyers crafted the plea agreement days earlier.

That didn’t matter to Strophy, who peered at it with a quizzical eye.

The charges revolved around cars purchased for Probst’s now-defunct driving schools. State prosecutors demonstrated that Probst bought the cars while posing as an Oregon resident, thus avoiding $14,052 in sales and use taxes. Probst admitted it.

“I purchased and licensed vehicles out of state in order to avoid sales tax,” his statement said.

For Strophy, it wasn’t enough.

“Was he collecting the tax and not remitting it, or not paying taxes?” he asked.

“Not paying taxes,” Marlow replied.

“My question is how that constitutes theft,” the judge said. “This is the first time in over 20 years on the bench I’ve ever seen tax evasion framed as theft.”

Marlow tried again, saying Probst fraudulently claimed to be an out-of-state resident to skirt the taxes on the cars. The judge returned to his original question.

“How is that theft? I’m not taking anything,” Strophy said.

“You’re retaining something that belongs to someone else,” Marlow replied.

Strophy stared at Marlow for a moment, then turned to Probst’s attorney. “Well, Mr. Klessig, I’ve done your job for you,” Strophy said. “Apparently, you’re willing to plead guilty to a crime that I have serious doubt exists.”

Klessig, stuck, quietly said he had reviewed the law before accepting the plea agreement – but that he could do it again.

“I hate to be a sticky wicket,” Strophy said.

With their plea agreement knocked sideways, the attorneys left temporarily, pondering ways to satisfy the judge.

Probst sat quietly on a courtroom bench, reading. This was only one of his legal battles.

In October, the state forced him to surrender ownership of all his driving schools. The state’s terms, included revocation of his teaching license and a 10-year ban on school ownership. All the schools closed, but four are in the process of reopening with new owners.

The attorneys returned. Strophy set a new hearing date: Feb. 8. Marlow and Klessig said they would research the case law again. Strophy said that if attorneys could resolve their arguments, a plea agreement could work.

“That’s if you anticipate no probing questions from the court,” he added as the attorneys gathered their files.

“We weren’t anticipating probing questions this time, your honor,” Marlow replied, smiling.

Sean Robinson: 253-597-8486

sean.robinson@thenewstribune.com

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