State Of Washington, Resp-cross App v. Monique S. Howard, App-cross Resp ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 73822-4-1
Respondent,
DIVISION ONE
v.
MONIQUE SHAUNTE HOWARD, UNPUBLISHED OPINION
Appellant. FILED: September 26, 2016
Becker, J. — Monique Howard appeals her standard range sentence for
first degree robbery. She contends the sentencing judge penalized her for
exercising her right to a jury trial. We affirm.
A jury found Howard guilty of first degree robbery and returned a special
verdict finding that she committed the crime with a deadly weapon. The standard
sentencing range was 31 to 41 months. The State recommended a mid-range
sentence of 36 months along with the mandatory 24-month enhancement for the
deadly weapon. Howard recommended a low-end sentence of 31 months along
with the mandatory 24-month enhancement. The trial court accepted the State's
recommendation. Howard appeals.
A defendant cannot appeal a standard range sentence unless the error
presents an issue of constitutional magnitude or is otherwise contrary to the law.
State v. Williams, 149 Wash. 2d 143, 147, 65 P.3d 1214 (2003); State v. Sandefer,
No. 73822-4-1/2
79 Wash. App. 178, 181, 900 P.2d 1132 (1995). If the sentence is imposed to
punish a defendant for exercising her right to go to trial instead of accepting a
plea bargain, it is an error of constitutional magnitude that may be appealed.
Sandefer, 79 Wash. App. at 181.
The trial judge made the following remarks at sentencing:
The avenue for equity was passed when you declined the offer to
simply plead to the underlying robbery without the deadly weapon
enhancement. I recognize that that will impose some substantial
time because of the jury's finding with respect to that.
. . . The State's recommendation is a reasonable one. It's
not to punish you for choosing to go to trial. But it is to recognize
that the defense not only failed but wasn't very believable.
And that there was a conscious decision to turn down a
more favorable opportunity that would have saved you, perhaps, as
much as a couple of years in prison. So I will choose to follow the
State's recommendation which was my inclination at the beginning
for a mid range sentence of 36 months plus the two-year
enhancement for the deadly weapon.
As in Sandefer, nothing in the comments quoted above affirmatively
indicates that the court improperly considered Howard's decision to go to trial
when choosing a mid-range sentence rather than a low-end sentence.
In Sandefer, the court imposed a high-end standard range sentence for
child molestation. The court commented that it would frequently impose a more
lenient sentence if a defendant had entered a guilty plea, thereby sparing a child
victim the burden of testifying. Sandefer, 79 Wash. App. at 180.
On appeal, Sandefer argued that the sentencing court improperly
considered his decision to stand trial. This court affirmed, concluding that the
court's remarks were "nothing more than a fair response to Sandefer's objection
to the State's recommendation." Sandefer, 79 Wash. App. at 184. "To rule
No. 73822-4-1/3
otherwise would permit defendants and defense counsel to constrain the
sentencing court's exercise of its discretion by simply asking the court, as
Sandefer did here, why the court did not afford the defendant the benefit of an
earlier plea offer." Sandefer, 79 Wash. App. at 184. Following Sandefer, we reject
Howard's due process challenge.
The court imposed a community custody sentence term of 18 months
under RCW 9.94A.701. Howard contends that section .701 is ambiguous as to
the length of the community custody term that results from a first degree burglary
conviction. We resolved this issue in State v. Hood, No. 73401-6-1 (Wash. Ct.
App. Sept. 26, 2016). Following Hood, we affirm the 18-month term of
community custody.
Howard asks this court to state that appellate costs will not be awarded
against her. We have discretion as to whether costs will be awarded on appeal.
State v. Sinclair, 192 Wash. App. 380, 386, 367 P.3d 612 (2016).
The trial court declared Howard indigent. The State nevertheless argues
that Howard's future ability to pay appellate costs is evidenced by her youth (22
years old), by the trial court's finding that she will probably be able to get a
paying job in prison, and by the fact that she has actually paid $34.42 toward her
legal financial obligations while incarcerated. These facts do not persuade us
that imposing a debt of thousands of dollars upon Howard would be a productive
exercise of our discretion. We deny the State's request to impose appellate
costs.
Affirmed.
No. 73822-4-1/4
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