State Of Washington, Resp. v. Marvell M. Miller, App. ( 2016 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 5? ~
STATE OF WASHINGTON
DIVISION ONE
Respondent,
No. 73491-1-1
v.
UNPUBLISHED OPINION
MARVELL MICHAEL MILLER
Appellant. FILED: August 1,2016
Dwyer, J. — Marvell Miller pled guilty to two counts of residential burglary
and two counts of unlawful possession of a firearm. At his sentencing hearing,
Miller was ordered to register as a felony firearm offender. Miller now appeals,
arguing that the felony firearm offender registration statute is unconstitutionally
vague, that the prosecutor violated the plea agreement, and that the sentencing
court abused its discretion in requiring that he register as a felony firearm
offender. Finding that Miller's contentions have no merit, we affirm.
I
On April 13, 2015, Miller pled guilty to two counts of residential burglary
and two counts of unlawful possession of a firearm. Miller twice committed
residential burglary by stealing from two residences. Miller twice committed
unlawful possession of a firearm by possessing a handgun on his person and five
additional firearms in his car, contravening an order that barred him from
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possessing a firearm. Miller admitted that he carried the loaded handgun on his
person during the burglaries in case he encountered any residents. The firearms
in Miller's car included three assault rifles, a shotgun, and another handgun. All
of the firearms were later identified as stolen.
As part of his plea agreement, Miller stipulated to the facts as set forth in
the determination of probable cause and the prosecuting attorney case summary.
The State agreed not to file other charges arising out of the two burglaries. The
plea agreement further indicated that the sentencing court "may" require that
Miller register as a felony firearm offender pursuant to RCW 9.41.330.
At Miller's sentencing hearing, the prosecutor informed the court that it
was required to determine whether to order Miller to register as a felony firearm
offender pursuant to RCW 9.41.330 and further informed the court as to the
pertinent statutory factors and the locations in the record of information pertinent
to those factors.
At the conclusion of the sentencing hearing, the court ordered Miller to
register as a felony firearm offender. This order was included in the judgment
and sentence.
Miller now appeals.
II
Miller contends that RCW 9.41.330 is unconstitutionally vague and that
the order imposing the registration requirement should be vacated. We disagree.
Thirteen years ago, our Supreme Court held that "the due process
considerations that underlie the void-for-vagueness doctrine have no application
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in the context of sentencing guidelines." State v. Baldwin, 150 Wash. 2d 448, 459,
78 P.3d 1005 (2003). Because "nothing in these [sentencing] guideline statutes
requires a certain outcome, the statutes create no constitutionally protectable
liberty interest." Baldwin, 150 Wash. 2d at 461. As with the sentencing guideline
statutes at issue in Baldwin, the statute herein grants a court discretion in
determining whether to impose the registration requirement on felony firearm
offenders. See RCW 9.41.330. Our Supreme Court has never indicated a need
to revisit its holding in Baldwin. The Baldwin decision controls our analysis. The
sentencing statute at issue is not subject to a facial void for vagueness
challenge. Miller's claim fails.
Ill
Miller next contends that the State violated the plea agreement by its
actions at the sentencing hearing. We disagree.
To determine whether the State breached a plea agreement, a reviewing
court applies an objective standard. State v. Jerde, 93 Wash. App. 774, 780, 970
P.2d 781 (1999). The test is whether the prosecutor contradicts, by words or
conduct, the terms of the plea agreement. Jerde, 93 Wash. App. at 780. Once a
plea bargain has been entered into, the defendant has a right analogous to a
contract right to have the terms of the agreement fulfilled. State v. Arko, 52 Wn.
App. 130, 134, 758 P.2d 522 (1988). We will not add terms to the plea bargain
that were not agreed to by the parties. Arko, 52 Wash. App. at 135.
The plea agreement herein read, in pertinent part, as follows:
This offense[,] counts II &IV[,] is a felony firearm offense as defined
by RCW 9.41.010, including any felony committed while armed with
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a firearm, and the judge may impose a requirement that I register
with the sheriff in the County where I reside, for a period of four
years from sentencing or from my release from confinement for this
offense, whichever is later, in compliance with RCW 9.41.333.
At the sentencing hearing, the prosecutor informed the court as follows:
[Prosecutor]: [B]ecause this is a firearm offense as
appropriately defined, the court must consider whether to impose a
firearm registration requirement under RCW 9.41.330. This is a
fairly new statute so I can forward a copy for Your Honor.
[Court]: Thank you.
[Prosecutor]: The factors for the court to consider in
determining the actual—the firearm offender registration is not a
part of the plea agreement in this case but it is a required—required
by the legislature that the court consider whether or not to impose
it.
Iwould suggest for the court to look at the defendant's
criminal history as is required under (2)(a) and look at evidence of
the defendant's propensity for violence (inaudible) endanger
persons under 2(c). With respect to that factor, Iwould ask the
court to note in the certification that the defendant acknowledged
that he carried the pistol that was found on his body with him during
the burglaries to protect himself from possible harms that he may
encounter.111
Miller first asserts that the State violated the plea agreement by informing
the court that it must consider RCW 9.41.330, explaining the factors to consider,
1 RCW 9.41.330 reads as follows:
(1) On or after July 28, 2013, whenever a defendant in this state is convicted of a
felony firearm offense or found not guilty by reason of insanity of any felony
firearm offense, the court must consider whether to impose a requirement that
the person comply with the registration requirements of RCW 9.41.333 and may,
in its discretion, impose such a requirement.
(2) In determining whether to require the person to register, the court
shall consider all relevant factors including, but not limited to:
(a) The person's criminal history;
(b) Whether the person has previously been found not guilty by
reason ofinsanity ofany offense in this state orelsewhere; and
(c) Evidence of the person's propensity for violence that would
likely endanger persons.
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and directing the court to the locations in the record that would inform the court's
analysis.
"The prosecutor, as an officer of the court, is obliged to participate in the
sentencing proceedings, candidly answer[] the court's questions . . . and hold[]
back no relevant information." State v. Sledge, 133 Wash. 2d 828, 840, 947 P.2d
1199 (1997) (citing RCW 9.94A.460). This information necessarily includes
relevant statutes, factors, and locations in the record that would assist the court
in its task. Thus, the State could not agree in the first instance to withhold
mention of RCW 9.41.330 from the court.
Further, Miller's contention effectively asks us to add language to the plea
bargain indicating that the State would remain neutral on the issue of registration.
The plea agreement herein mentioned only the possibility that the court "may"
require that Miller register as a felony firearm offender. Thus, the plea
agreement was silent as to whether the State would advocate that the court
should order Miller to register. We will not add terms to the plea bargain reached
by the parties. See Arko, 52 Wash. App. at 134 (rejecting defendant's request for
"the court to imply an additional term to that bargain which was not expressed in
the bargain itself).2
2Miller also cites to Santobello v. New York. 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d
477 M971V State v. Williams. 103Wn. App. 231, 11 P.3d 878 (2000), and Jerde, 93 Wash. App.
774 as supporting his contention that the State undercut the plea agreement. These citations
are inapposite. Unlike here, each of the cases cited by Miller involved plea agreements with
express terms that the prosecutor later undercut, either inadvertently or on its own initiative.
Santobello, 404 U.S. at 262; Williams, 103 Wash. App. at 239; Jerde, 93 Wash. App. at 782. As
discussed above this plea agreement was silent on the issue of whether the State would take a
position on the issue of registration. Nor, for that matter, is there any evidence in the record that
the State advocated that a registration requirement should be imposed.
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No. 73491-1-1/6
RCW 9.41.330(1) mandates that the court make a determination as to
whether to impose the felony firearm offender registration requirement. Thus, the
State, honoring its duty of candor to the court, did not act improperly by bringing
the registration statute, the relevant factors, and the record to the court's
attention. See State v. Talley, 134 Wash. 2d 176, 949 P.2d 358 (1998); State v.
Sledge, 133 Wash. 2d 828, 947 P.2d 1199 (1997); SJate^LVanBuren, 112Wn.
App. 585, 49 P.3d 966 (2002).
The State's actions in informing the court of the registration statute, the
relevant factors, and the pertinent locations in the record where information could
be found were proper and did not constitute a breach of the plea agreement.
IV
Miller next contends that the sentencing court abused its discretion in
imposing the registration requirement by failing to articulate a consideration of
each enumerated factor. We disagree.
We review discretionary decisions for abuse of discretion. State v. Miller,
159 Wash. App. 911, 918, 247 P.3d 457 (2011). Asentencing court abuses its
discretion only where the sentencing court's decision is "'manifestly
unreasonable, or exercised on untenable grounds, orfor untenable reasons.'"
Miller, 159 Wash. App. at 918 (quoting State ex rel. Carroll v. Junker, 79 Wash. 2d 12,
26, 482 P.2d 775 (1971)). "A decision is based on untenable grounds or made
for untenable reasons if it rests on facts unsupported in the record or was
reached by applying the wrong legal standard." State v. Rohrich, 149 Wash. 2d
647, 654, 71 P.3d 638 (2003) (internal quotation marks omitted).
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Under RCW 9.41.330, the court "must consider whether to impose" the
registration requirement and, in doing so, the court "shall consider all relevant
factors including, but not limited to" three suggested factors. RCW 9.41.330(1),
(2). By including the "including, but not limited to" language in the statutory
provision, the legislature afforded courts latitude in their registration
determinations. RCW 9.41.330(1); see State ex rel. Graham v. Northshore Sch.
Dist. No. 417, 99 Wash. 2d 232, 238, 662 P.2d 38 (1983) ("The Legislature
specifically used the terms 'including, but not limited to'. . . and thus did not limit
the discretion afforded [to the decision maker]."). RCW 9.41.330 does not dictate
that a sentencing court must explicitly articulate its consideration of each factor
when determining whether to impose the registration requirement.
Herein, the sentencing court considered relevant factors in reaching
its determination. The court's judgment and sentence reads as follows:
This offense is a felony firearm offense (defined in RCW 9.41.010).
Having considered relevant factors, including criminal history,
propensity for violence endangering persons, and any prior NGI
findings, the Court requires that the defendant register as a firearm
offender.
Moreover, at the sentencing hearing, the court specifically articulated its
consideration oftwo ofthe suggested factors, detailing its concern over Miller's
criminal history3 and noting that there was no suggestion that Miller had been
found guilty by reason of insanity.
3At the time of his plea, Miller had been convicted of four juvenile court offenses, second
degree burglary in 2009, and third degree assault, criminal trespass, and harassment in 2011.
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No. 73491-1-1/8
The court also expressed its concern over the number and type of
firearms possessed by Miller and the manner in which he possessed them,
stating:
I am concerned just with the presence and number of weapons
which were recovered. Not only the one on your person and
according to the search there was a loaded magazine and the
weapon, no rounds in the chamber but still a loaded handgun and
then three rifles, a pistol, a shotgun and a Sig Sauer. I'm
concerned about those.[4]
The number of guns that were illegally possessed by the defendant is
plainly a relevant consideration. Moreover, the court's reference to Miller's
possession of a loaded firearm while committing his burglaries, to guard against
the happenstance of encountering a resident, was, indeed, a comment on Miller's
propensity for violence. Miller would have had no need to possess a loaded gun
unless he was open to firing it at such a resident.
The sentencing court properly considered relevant factors in making its
determination. It did not abuse its discretion in requiring Miller to register as a
felony firearm offender.
V
In his appellate briefing, Miller requests that no costs associated with his
appeal be assessed against him. The State did not respond to this request. We
exercise our discretion and do not impose appellate costs. RAP 14.2; State v.
«Miller cites Statev. Rupe, 101 Wash. 2d 664, 683 P.2d 571 (1984), for the proposition that
the number of firearms in his possession should not be part ofthe court's consideration in
determining his propensity for violence. However, Rupe's guns were lawfully possessed. Ruge,
101 Wash. 2d at 706-07. Miller committed crimes by possessing his numerous firearms.
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No. 73491-1-1/9
Sinclair, 192 Wash. App. 380, 388, 367 P.3d 612 (2016), review denied, No. 92796-
1 (Wash. June 29, 2016).
Affirmed.
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We concur:
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