State Of Washington v. Heath Landon McMillian ( 2021 )

Filed
Washington State
Court of Appeals
Division Two
February 12, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 53247-6-II
Respondent,
v.
HEATH LANDON MCMILLIAN, UNPUBLISHED OPINION
Appellant.
CRUSER, J. – Heath Landon McMillian pled guilty to two counts of third degree rape of a
child. He appeals the sentencing court’s denial of his request for a special sex offender sentencing
alternative (SSOSA) sentence, several community custody conditions, and the imposition of a
community custody supervision fee. He argues that the sentencing court abused its discretion by
not giving great weight to the minor victim TTC’s opinion about the SSOSA request as required
under RCW 9.94A.670(4). He further argues that two community custody conditions are not crime
related, that one condition is vague, and that because he is indigent the sentencing court erred when
it required him to pay community custody supervision fees. In addition, McMillian raises several
claims in his statement of additional grounds for appeal (SAG).
We (1) hold that the sentencing court gave great weight to both the minor victim’s and the
victim’s mother’s opinions, (2) accept the State’s concessions that the curfew and hitchhiking
conditions were not crime related and that the requirement that McMillian report “any romantic
No. 53247-6-II
relationships” was impermissibly vague, (3) hold that the community supervision fee was properly
imposed, and (4) reject McMillian’s SAG claims because they either lack merit or cannot be
considered on this record. Accordingly, we affirm the convictions and the trial court’s denial of
McMillian’s SSOSA request, but we remand for the sentencing court to strike the curfew and
hitchhiking community custody conditions and to revise the romantic relationship reporting
requirement.
FACTS
I. GUILTY PLEAS
The State originally charged McMillian with four counts of third degree rape of a child
involving the same victim, his step-daughter TTC. McMillian pleaded guilty to the amended
charges of two counts of third degree rape of a child.
McMillian’s plea statement advised him that he was giving up any “speedy” trial rights
and that his right to appeal his guilty plea was “limited.” Clerk’s Papers (CP) at 7-8. The plea
statement further provided that the State would recommend a SSOSA sentence, but it also
cautioned McMillian that the trial court did not have to follow the sentencing recommendation.
McMillian also initialed the following special provision in the plea statement that related
to the SSOSA:
In addition to other eligibility requirements under RCW 9.94A.670, to be eligible
for the special sex offender sentencing alternative, I understand that I must
voluntarily and affirmatively admit that I committed all of the elements of the
crime(s) to which I am pleading guilty. I make my voluntary and affirmative
admission in my statement in paragraph 11 [of the plea statement].
Id. at 13.
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McMillian provided the following statement:
The judge has asked me to state what I did in my own words that makes me guilty
of this crime, including enhancements and domestic violence relationships if they
apply. This is my statement: On or between February 1, 2017, and December 31,
2017, on two separate and distinct occasions, I did engage in sexual intercourse
(digital penetration of her vagina) with T.T.C., who did not consent to such sexual
intercourse because there were no actual words or conduct indicating freely given
agreement to have sexual intercourse, and such lack of consent was clearly
expressed by T.T.C.’s conduct. This plea is also being made pursuant to In re
Barr,[1] as the specific acts that occurred may not directly implicate the elements of
the crime, but I wish to take advantage of the State’s offer
Id. at 16. McMillian signed the plea agreement, acknowledging that he had read the entire
agreement and understood it in full.
At the change of plea hearing, the superior court acknowledged that the State was
recommending a SSOSA sentence. The court also asked McMillian if he understood that the court
“doesn’t need to follow any recommendation but can impose any sentence allowed under the law.”
Report of Proceedings (RP) (Jan. 7, 2019) at 7. McMillian confirmed that he understood. After
finding a factual basis for the pleas, the court accepted the guilty pleas and ordered the Department
of Corrections (DOC) to conduct a presentence investigation (PSI).
II. SENTENCING
A. PRESENTENCE INVESTIGATION AND PSYCHOSEXUAL EVALUATION
Before the sentencing hearing, the DOC submitted the PSI report. As part of the PSI, the
investigator asked TTC’s mother what type of sentence McMillian should receive. The PSI
investigator described this conversation as follows:
In closing, I asked [TTC’s mother] what type of sentencing [McMillian] should
receive. I explained to her the difference between receiving a SSOSA and being
sentenced to prison. She feels that he should pay for what he has done. She believes
1
In re Pers. Restraint of Barr, 102 Wn.2d 265, 267, 684 P.2d 712 (1984).
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he has inflicted a lot of emotional pain on T.T.C and the family. She feels deceived
and manipulated by [McMillian]. On the other hand, she said her and [McMillian]
have a daughter in common. She wants the daughter to have contact with her father.
She said that [McMillian] has contributed financially to her and the children and
she would lose that income.
CP at 24.
The PSI investigator expressed concern about whether McMillian was admitting to or
taking responsibility for his actions, noting that his admission merely mirrored his plea statement
and that McMillian was still asserting that any sexual contact was accidental, that TTC had initiated
the massages that had led to the sexual contact, and the he was merely pleading guilty so TTC
would not have to testify. The investigator further noted that TTC’s mother characterized
McMillian’s behavior as “grooming” and had stated that McMillian was “deceptive” and
“manipulative.” Id. at 28. The investigator recommended that the sentencing court deny the
SSOSA request under these circumstances.
McMillian also underwent a psychosexual evaluation (PSE). In the PSE report, the
evaluator also noted that McMillian had denied engaging in any sexual activity with TTC and that
he asserted that the touching that had occurred was at TTC’s request. The evaluator concluded,
however, that “[d]enial is not necessarily a preclusion to successful treatment” and that “[t]here is
nothing other than this to indicate [McMillian] is not an acceptable candidate for the [SSOSA]
program.” Id. at 39.
B. SENTENCING HEARING
At sentencing, the sentencing court2 reviewed the PSI and the PSE. The State advised the
sentencing court that the parties had agreed to recommend a SSOSA sentence.
2
The sentencing took place before a different judge than the one who entered the guilty plea.
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The sentencing court then invited TTC’s mother to speak. TTC’s mother characterized
McMillian as manipulative, commented on his abuse of trust, and described the significant
negative impact his actions had on TTC and TTC’s half-sister.
TTC’s mother also commented about McMillian’s sentence:
[TTC] doesn’t want him to go to prison because she loves him and because
she still feels like it’s her fault that he did this to her. And I feel so many emotions
about that alone that I don’t know how to breathe sometimes. And it was my
responsibility to protect her, and I have -- I feel like I have a pretty good BS meter,
and there were a lot of times in our marriage and even after we separated where I
would call Mr. McMillian on things, and it just didn’t feel right. And -- and I always
just let it -- let it be a benefit of the doubt, oh, he’s just a kind of awkward but nice
guy. He would never hurt us.
I was really wrong. And I just want to make sure that no one else -- like I
don’t -- my daughter is really strong, and she’s resilient, and hopefully she is going
to see past this, and she’s going to regain her strength in all of that, both of them,
and know that they are ever more than this experience, and also I want to ensure
that he really can accept accountability for what he’s done, accept that there are
lines, and that even if you feel a certain way because media is confusing or, you
know, whatever, age is nothing but a number that you just don’t cross those
boundaries in real life.
And as far as being allowed to see minors at his job,[3] um, a friend recently
-- just recently had asked me if -- if anything was going to happen in regards to his
work schedule, because they no longer go to shop at [where McMillian worked]
because they are afraid to see him or for him to see their daughter, because he has
previously commented on how pretty she is. She’s eight.
So I just ask that you please just put your BS meter up, and I’m hoping that
I -- everybody knows what they’re doing. And I’m sorry I’m just not -- I’m not as
composed as I’d like to be, but thanks for seeing this case and for weighing it with
the severity that it deserves.
RP (Feb. 25, 2019) at 7-9 (emphasis added).
3
As part of the plea agreement, the State agreed to request accommodations that would allow
McMillian to be around children in the context of his job at a grocery store.
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No. 53247-6-II
TTC, who was 16 at the time of the sentencing hearing, did not address the sentencing
court. But the State commented that it had spoken to TTC when the parties were working on the
plea agreement and that it had based its recommendation on her expressed preferences.
Defense counsel responded that this was an agreed recommendation and discussed the PSI.
Defense counsel admitted that McMillian had initially denied the allegations and was “still in
denial . . . and wasn’t accepting full responsibility” at the time of the PSI. Id. at 10. But counsel
asserted that McMillian was now acknowledging what he had done and was accepting
responsibility for his actions. Counsel also asserted that McMillian had admitted his actions during
the PSI interview, but that McMillian had possibly not understand how to fill out the PSI
questionnaires and had merely copied what was in the plea statement, making it appear that he was
not taking responsibility.
When McMillian addressed the sentencing court, he admitted that he had “manipulated
situations” to allow him to “rape” TTC, acknowledged that this “behavior was utterly wrong,” and
recognized that this was an abuse of trust that had damaged TTC and the rest of his family. Id. at
16. He then asked the court “for mercy” and requested a SSOSA sentence. Id.
After hearing from McMillian, the sentencing court gave the following oral ruling:
So this is a difficult case, and not all agreed recommendations are difficult.
Most are not. But this is a request for a SSOSA resolution of a horrific crime. The
SSOSA law, which is found at RCW 9.94A.670, requires this court to make an
independent decision, regardless of what is recommended to the court.
There are a number of factors that the court has to consider, including
whether the alternative is too lenient in light of the extent and circumstances of the
offense. And also, unlike any other statute I know about, it requires the court to
give — and this is right from the statute — “great weight” to the victim’s opinion
of whether the offender should receive a treatment disposition under the SSOSA
statute.
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No. 53247-6-II
It sounds like there may be an opinion from the victim, the young victim in
this case, that this is what she wants to have happen. I’m not necessarily hearing
that from the mother of the victim here, and that is the voice that this court must
give great weight to.
Mr. McMillian, you talk about, you know, being a bad dad and you wish --
you want to have the opportunity to prove that you could be a person who would
not be a bad dad. One of the most horrific things about these types of crimes caused
by a dad, whether an actual blood dad or a step dad, is the violation of the trust and
affection of a child, the abuse of that trust and affection that comes organically from
a child to a parent.
I can’t tell you how many times in this courtroom I hear victims of these
types of crimes from horrific parenting, and yet they still love their parent. It is
society’s obligation to protect our children. It should never have to be society’s
obligation to protect that child from a parent. But the reality is, it’s all too common,
for that abuse of that trust and that that love that that child just gives to a parent for
the simple reason of that adult being in the same house and raising a child.
That is an amazing amount of power that adults have over their children, an
amazing amount of just power that’s given to a parent, not because they passed a
test, not because they have proven themselves to be a good human being, but simply
because they’re a parent. And that allows someone like you to do this to her. And
that allows, after you do this horrific thing to her, for her to say to the State, I want
this. I want leniency for him.
[Defense counsel], who not once but twice today has done a very admirable
job in attempting to characterize his clients’ positions. And he has done that for
you, as well, no question. He has defined what you have -- your evolution of your
recognition of what you’ve done.
You stand here today saying you know you did wrong. You know. You fully
commit to the fact that you know that you did these horrible things, and there’s no
excuse for it. But that’s not where you were when this started, and that’s where you
were on September 29,[4] and it’s certainly not where you were on January 30,[5]
despite the fact that [defense counsel] says he doesn’t know how he got to that
opinion. But the [PSI] is ambiguous with respect to your embracing what you did
was wrong. Massaging the chest muscles of a girl is the way you described it.
4
The PSE report was dated September 29, 2018.
5
The PSI report was dated January 30, 2019.
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I have departed from joint recommendations in so few instances, even in
SSOSAs when they are contested by the victims. But I can’t in good conscience
give great weight to the opinion of the mother and provide the leniency that a
SSOSA would give you. I can’t do it, not with the horrific abuse of this love and
affection that this little girl gave to you and your abuse of that.
Id. at 17-20 (emphasis added).
The sentencing court sentenced McMillian to 17 months on each count and ran the
sentences concurrently. The court also imposed 36 months of community custody.
The sentencing court also imposed several community custody conditions including, (1) a
requirement that McMillian “[a]bide by the curfew set by the community corrections officer,” (2)
a prohibition against hitchhiking or picking up hitchhikers, and (3) a requirement that McMillian
“[i]nform the Community Corrections Officer of any romantic relationships.” CP at 52. Although
the sentencing court did not discuss legal financial obligations (LFOs) or McMillian’s indigency
status during the sentencing hearing, the judgment and sentence ordered McMillian to pay
community custody supervision fees as determined by the DOC.
McMillian appeals.
ANALYSIS
McMillian argues that (1) the sentencing court abused its discretion by giving great weight
to TTC’s mother’s opinion and not giving sufficient weight to TTC’s opinion as required under
RCW 9.94A.670(4), (2) the community custody conditions related to curfew and hitchhiking are
not crime related and the community custody condition requiring him to report “any romantic
relationships” is impermissibly vague, Br. of Appellant at 15; and (3) the trial court erred when it
imposed the community supervision fee because he is indigent. McMillian also raises several
issues in his SAG.
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No. 53247-6-II
I. DENIAL OF SSOSA
McMillian first argues that the sentencing court misapplied the law and abused its
discretion when it denied the SSOSA request without giving TTC’s opinion “great weight” as
required under RCW 9.94A.670(4). We disagree.
A. LEGAL PRINCIPLES
We review a sentencing court’s denial of a request for a SSOSA sentence for an abuse of
discretion. State v. Osman, 157 Wn.2d 474, 482, 139 P.3d 334 (2006). A sentencing court abuses
its discretion if its “‘decision is manifestly unreasonable, or is exercised on untenable grounds, or
for untenable reasons.’” State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003) (quoting State
v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993)). “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.” Id. (quoting State v. Rundquist, 79 Wn. App. 786,
793, 905 P.2d 922 (1995)).
Sentencing courts must generally impose sentences within the standard range. Osman, 157
Wn.2d at 480. But if an offender is eligible for and requests a SSOSA sentence, the court must
decide whether that alternative is appropriate. Id. In determining whether the SSOSA is
appropriate, the sentencing court must consider several factors, including, but not limited to
“whether the offender and the community will benefit from use of this alternative, . . . whether the
alternative is too lenient in light of the extent and circumstances of the offense, . . . whether the
offender has victims in addition to the victim of the offense, . . . whether the offender is amenable
to treatment, . . . the risk the offender would present to the community, to the victim, or to persons
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of similar age and circumstances as the victim, and . . . the victim’s opinion whether the offender
should receive a treatment disposition under this section. RCW 9.94A.670(4).
The sentencing court is required to “give great weight to the victim’s opinion whether the
offender should receive” a SSOSA sentence. RCW 9.94A.670(4). In this context,
“[v]ictim” means any person who has sustained emotional, psychological,
physical, or financial injury to person or property as a result of the crime charged.
“Victim” also means a parent or guardian of a victim who is a minor child unless
the parent or guardian is the perpetrator of the offense.
RCW 9.94A.670(1)(c).
B. GREAT WEIGHT REQUIREMENT
McMillian contends that the sentencing court failed to follow RCW 9.94A.670(4)’s “great
weight” requirement because the court gave great weight only to TTC’s mother’s opinion and
ignored TTC’s opinion entirely. We disagree.
In its oral ruling, the sentencing court acknowledged TTC’s opinion about McMillian’s
sentencing, noting that she had requested the SSOSA sentence. The sentencing court discussed
and considered TTC’s opinion at length. The court then weighed TTC’s opinion against her
mother’s opinion, to which the court was also required to accord great weight. Notably, TTC’s
mother had commented that TTC loved McMillian and that she still felt that she was responsible
for the incidents. In light of the potential undue influence a parent/child relationship can assert on
a child victim, the sentencing court ultimately found TTC’s mother’s opinion more persuasive.
Although the sentencing court found TTC’s mother’s opinion more persuasive, the court’s
extensive discussion of TTC’s competing opinion demonstrates that the trial court gave great
weight to both opinions.
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Because the sentencing court gave great weight to both TTC’s and her mother’s opinions,
the sentencing court did not abuse its discretion. Accordingly, this argument fails.
II. COMMUNITY CUSTODY CONDITIONS
A. CURFEW AND HITCHHIKING CONDITIONS
McMillian next argues that we should strike the curfew and hitchhiking community
custody conditions because they are not crime related. The State concedes that these conditions
are not crime related.
Community custody conditions must relate to the circumstances of the crime. State v.
Nguyen, 191 Wn.2d 671, 683, 425 P.3d 847 (2018). Because nothing in the record shows that the
crimes were related to the time of day or any hitchhiking-related activity, these conditions are not
crime related. Accordingly, we accept the State’s concession and remand to strike these
community custody conditions is required.
B. ROMANTIC RELATIONSHIP CONDITION
McMillian further argues that we should strike the community custody condition requiring
him to report “any romantic relationships” because this condition is unconstitutionally vague. Br.
of Appellant at 15. The State concedes that the term romantic relationship is vague. We accept the
State’s concession.
“We review community custody conditions for an abuse of discretion and will reverse them
if they are manifestly unreasonable.” Nguyen, 191 Wn.2d at 678. “A trial court’s imposition of an
unconstitutional condition is manifestly unreasonable.” Id.
“The Fourteenth Amendment to the United States Constitution along with article I, section
3 of the Washington State Constitution require that citizens be afforded fair warning of proscribed
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conduct.” Id. “[A] community custody condition is unconstitutionally vague if it ‘(1) . . . does not
define the criminal offense with sufficient definitiveness that ordinary people can understand what
conduct is proscribed, or (2) . . . does not provide ascertainable standards of guilt to protect against
arbitrary enforcement.’” Id. at 678-79 (alterations in original) (quoting City of Spokane v.
Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990).
In Nguyen, our Supreme Court examined a community custody condition requiring the
appellant to disclose any “dating relationship.” 191 Wn.2d at 681. In its analysis, the court
discussed a federal decision, United States v. Reeves, 591 F.3d 77 (2d Cir. 2010), which “held that
the term ‘significant romantic relationship’ was unconstitutionally vague.” Nguyen, 191 Wn.2d at
682 (quoting Reeves, 591 F.3d at 79). Our Supreme Court recognized that in Reeves the court
distinguished requirements regarding the reporting of a “‘dating relationship’” from those
requiring the reporting of a “‘significant romantic relationship,’” based on the “‘highly
subjective’” nature of the terms “‘significant’” and “‘romantic.’” Id. at 682-83.
Subsequently, in State v. Peters, 10 Wn. App. 2d 574, 590-91, 455 P.3d 141 (2019),
Division Three of this court relied on Nguyen to hold that a condition requiring reporting of
“‘romantic relationships’” was vague. Division Three also held that the proper remedy was to
remand the community custody condition for the term “romantic relationship” to be replaced with
“dating relationship.” Id.We agree with Peters. Accordingly, we accept the State’s concession that the requirement
that McMillian report any romantic relationship is vague, and remand to the sentencing court for
the term “romantic relationship” to be replaced with “dating relationship.”
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III. COMMUNITY CUSTODY SUPERVISION FEE
Relying on RCW 9.94A.760(1) and RCW 10.01.160(3), McMillian next argues that
because he is indigent the trial court erred by imposing community custody supervision fees, which
he characterizes as discretionary “costs.” Br. of Appellant at 20. Because community custody
supervision fees are not costs, we disagree.
RCW 9.94A.760(1) states, in part,
Whenever a person is convicted in superior court, the court may order the
payment of a legal financial obligation as part of the sentence. The court may not
order an offender to pay costs as described in RCW 10.01.160 if the court finds that
the offender at the time of sentencing is indigent as defined in RCW 10.101.010(3)
(a) through (c).
(Emphasis added.) Similarly, RCW 10.01.160(3)6 provides, “The court shall not order a defendant
to pay costs if the defendant at the time of sentencing is indigent as defined in RCW 10.101.010(3)
(a) through (c).” (Emphasis added.) Under RCW 10.01.160(2), “[c]osts shall be limited to
expenses specially incurred by the state in prosecuting the defendant or in administering the
deferred prosecution program under chapter 10.05 RCW or pretrial supervision.”
RCW 9.94A.703(2)(d)7 governs supervision fees and states, “Unless waived by the court,
as part of any term of community custody, the court shall order an offender to . . . [p]ay supervision
fees as determined by the [Department of Corrections].” Supervision fees are discretionary LFOs.
State v. Spaulding, 15 Wn. App. 2d 526, 536, 476 P.3d 25 (2020); State v. Lundstrom, 6 Wn. App.
2d 388, 396 n.3, 429 P.3d 1116 (2018), review denied, 193 Wn.2d 1007 (2019). But supervision
6
Because this case is not yet final, the current version of RCW 10.01.160(3) applies. State v.
Ramirez, 191 Wn.2d 732, 749, 426 P.3d 714 (2018).
7
The legislature amended RCW 9.94A.703 in 2018. LAWS OF 2018, ch. 201 § 9004. Because the
amendment did not change subsection (2), we cite to the current version of the statute.
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No. 53247-6-II
fees are not discretionary “costs” merely because they are discretionary LFOs—they must meet
the definition of a “cost” contained in RCW 10.01.160(2). Supervision fees fail to meet RCW
10.01.160(2)’s definition of a “cost” because they are not expenses specially incurred by the State
“to prosecute the defendant, to administer a deferred prosecution program, or to administer pretrial
supervision.” Spaulding, 15 Wn. App. 2d at 536-37.
Because supervision fees are not “costs” as defined under RCW 10.01.160(2), neither
RCW 9.94A.760(1) nor RCW 10.01.160(3) prohibit the trial court from imposing the fees based
on a defendant’s indigency. Accordingly, this argument fails.
McMillian’s argument that the conclusion that community custody supervision fees are not
costs is incorrect because DNA testing fees are waived if the fees have previously been paid even
though DNA testing fees are not costs incurred during the prosecution of the charge or a cost of
pretrial supervision. But, unlike supervision fees, duplicate DNA fees are expressly precluded
under a different statute, RCW 43.43.7541. Accordingly, this argument is not persuasive.
Relying on State v. Leonard, 184 Wn.2d 505, 507-08, 358 P.3d 1167 (2015), McMillian
also asserts that because community custody supervision fees are discretionary, the court must
examine his ability to pay. But in Leonard, unlike here, the costs at issue were medical costs under
RCW 70.48.130, and RCW 70.48.130(6) contains an express provision that requires the court to
address a prisoner’s ability to pay.
We note, however, that “[t]he barriers that LFOs impose on an offender’s reintegration to
society are well documented . . . and should not be imposed lightly merely because the legislature
has not dictated that judges conduct the same inquiry required for discretionary costs.” State v.
Clark, 191 Wn. App. 369, 376, 362 P.3d 309 (2015). We agree that this important policy should
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be broadly supported. Therefore, we encourage the trial court on remand to reexamine the
imposition of the supervision fees.
IV. SAG
McMillian raises several additional claims in his SAG. These claims either fail or we
cannot address them because they relate to matters outside the record.
First, McMillian contends that he should have been allowed to move to withdraw his guilty
plea when it became apparent that the sentencing court was not going to grant the SSOSA request.
Before sentencing, McMillian could have moved under CrR 4.2(f) to withdraw his guilty pleas.
Under CrR 4.2(f), he would have had to show that the withdrawal of the pleas was necessary to
correct a manifest injustice. After sentencing, McMillian could have moved to withdraw the pleas
under CrR 7.8. CrR 4.2(f). Under CrR 7.8, McMillian would have had to show (1) “[m]istakes,
inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order,” (2)
withdrawal of the plea was necessary due to newly discovered evidence, (3) “[f]raud . . . ,
misrepresentation, or other misconduct” by the State, (4) the judgment was void, or (5) “[a]ny
other reason justifying relief from the operation of the judgment.” The fact the sentencing court
declined to grant the SSOSA request does not qualify under either CrR 4.2(f) or CrR 7.8 because
McMillian was advised before entering his pleas that the sentencing court was not required to
follow the joint recommendation. Accordingly, McMillian does not show that he is entitled to
relief on this ground.
Second, McMillian contends that his guilty pleas were invalid because defense counsel and
the prosecutor misadvised him about the likelihood the trial court would grant the SSOSA request,
did not fully investigate the chances that the court would grant the SSOSA, or failed to properly
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advise him about what to say during the PSI process. The record does not contain any information
regarding what defense counsel or the prosecutor told McMillian regarding any of these matters.
Because the information necessary to address this claim is outside the record, we cannot address
this claim. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Third, McMillian asserts that defense counsel provided ineffective assistance of counsel
by failing to move to withdraw the pleas or by misadvising McMillian about the likelihood the
sentencing court would follow the sentencing recommendation and grant the SSOSA request. To
establish ineffective assistance of counsel, McMillian must establish both deficient performance
and resulting prejudice. McFarland, 127 Wn.2d at 336-37; Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
As discussed above, the fact the sentencing court declined to deny the SSOSA request does
not establish grounds to withdraw a guilty plea under either CrR 4.2(f) or CrR 7.8. Thus, McMillian
cannot establish that a failure to make such motions was deficient performance. Accordingly,
McMillian fails to establish ineffective assistance of counsel based on defense counsel’s failure to
move to withdraw the guilty pleas. Furthermore, also as discussed above, the record does not
contain any information regarding defense counsel’s advice to McMillian about the likelihood the
sentencing court would grant the SSOSA request, so, to the extent this argument is based on
defense counsel’s failure to properly advise McMillian, we cannot address this claim. McFarland,
127 Wn.2d at 335.
Fourth, McMillian contends that the sentencing court failed to give adequate weight to
TTC’s opinion of whether a SSOSA was appropriate. This claim duplicates appellate counsel’s
claim addressed above. Accordingly, we do not address it separately.
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Fifth, McMillian contends that the sentencing court failed to warn him of his rights as
required under CrR 7.2(b), thereby denying him of his right to withdraw his guilty pleas. CrR
7.2(b) requires the sentencing court to advise the defendant of various rights immediately after
imposing the sentence, but none of those rights include the right to move to withdraw a guilty plea.
Accordingly, this claim fails.
Sixth, McMillian contends that his request for counsel to be present during the PSI process
was denied and that counsel’s absence resulted in the PSI report not recommending a SSOSA. We
cannot address this issue because it relates to matters outside the record. McFarland, 127 Wn.2d
at 335.
Seventh, McMillian contends that defense counsel provided ineffective assistance of
counsel related to the first trial continuance and or time for trial waiver. But McMillian waived
any time for trial objections when he entered into the plea agreement, so he cannot now raise this
claim.
Finally, McMillian asks us to waive appellate costs and fees due to his indigence. We defer
this decision to the commissioners should the State seek costs under RAP 14.1(f). See RAP 14.2.
CONCLUSION
We (1) hold that the sentencing court gave great weight to both the minor victim’s and the
victim’s mother’s opinions (2) accept the State’s concessions that the curfew and hitchhiking
conditions were not crime related and that the requirement that McMillian report any “romantic
relationships” was impermissibly vague, (3) hold that the community supervision fee was properly
imposed, and (4) reject McMillian’s SAG issues because they either lack merit or cannot be
considered on this record. Accordingly, we affirm the conviction and denial of McMillian’s
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No. 53247-6-II
SSOSA request, but we remand for the sentencing court to strike the curfew and hitchhiking
community custody conditions and to revise the romantic relationship reporting requirement.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
CRUSER, J.
We concur:
MAXA, P.J.
MELNICK, J.P.T.
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