        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MONIQUE SHAUNTE HOWARD,                            UNPUBLISHED OPINION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 Wn.2d 143, 147, 65 P.3d 1214 (2003); State v. Sandefer,
No. 73822-4-1/2


79 Wn. 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 Wn. 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 Wn. 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 Wn. 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 Wn. 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 Wn. 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




                  QtJU*
WE CONCUR:




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