                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                         May 8, 2018

     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                              No. 50129-5-II

                                Respondent,

           v.

 MICHAEL WILLIAMS, II,                                       UNPUBLISHED OPINION

                                Appellant.

          MELNICK, J. — Michael Williams, II appeals the standard range sentence imposed

following his guilty plea to human trafficking in the second degree. Williams contends the State

breached the parties’ plea agreement and the sentencing court violated the real facts doctrine. We

affirm.

                                              FACTS

I.        PLEA AGREEMENT

          The State originally charged Williams with two counts of human trafficking in the first

degree, one count of kidnapping in the first degree, two counts of promoting commercial sexual

abuse of a minor, and one count of promoting prostitution in the second degree. The offenses

involved multiple minor victims. Williams was almost 23 years old when the offenses occurred.

Following plea negotiations, Williams agreed to plead guilty to one count of human trafficking in

the second degree with the aggravating factor that “any victim was a minor at the time of the

offense.” Clerk’s Papers (CP) at 234.
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       In the plea agreement, Williams stated that he “provided transport and hotel

accommodations on 12/8/14 knowing the transport and hotel would be used for commercial sex

transactions. I acted with reckless disregard as to the ages of the participants in the commercial

sex activity, two of whom were under the age of 18. I also expected to benefit financially from

the prostitution as a participant in the venture.” CP at 244.

       The State agreed to recommend a standard range sentence to the sentencing court and

agreed that “defense may argue for exceptional sentence downward.” CP at 239. Williams’s

standard range sentence was 129 to 171 months.

       Williams then submitted a brief requesting an exceptional sentence below the standard

range, arguing his sentence would be longer than sentences imposed on others engaging in similar

activity, the victims were willing participants, and Williams’s youth.

II.    SENTENCING HEARING

       At the sentencing hearing, the prosecutor stated that it was “beyond appalling” that

Williams alleged the victims were the aggressors, 3 Report of Proceedings (RP) at 74, and urged

the sentencing court not to “fall into the ridiculous argument defense is trying to make that these

two girls are the initiators, aggressors.”     3 RP at 96.      The prosecutor also stated it was

“preposterous” that a “22-, maybe 23-year-old man, who is married, who has a child, is the victim

of [the minor girls].” 3 RP at 98.

       Seattle Police Department Detective Maurice Washington testified under oath in response

to Williams’s argument that the victims were willing participants. The prosecutor explained the

need for Washington’s testimony stating, “The State has to stick to what is called the real-facts

doctrine. I’m aware of that. The defense has put in, however . . . a 19-page brief with . . . factual

allegations, about these two girls.” 3 RP at 74.



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        Washington provided a general description of human trafficking and his understanding of

victims in general, how and why they end up in this type of situation, and the use of control and

manipulation to keep them from getting out. Williams did not object to Washington’s testimony.

        The prosecutor requested a sentence of 171 months, the high end of the standard range.

The prosecutor argued:

        I do want to emphasize that I think [one of the victims] is afraid. Why wouldn’t she
        be, you know, of [Williams] right here, of who [he] represent[s], of [his] attitude
        here today, of not taking responsibility, of not being contrite and remorseful about
        what [he] did. Her fears, I’m confident, come from a long, long time ago when she
        was very, very young, and the court and defense understand what I’m talking about,
        and they continue. Why wouldn’t they continue? The court knows what’s
        happened throughout the pendency of this case, but she is here. That says a lot, too,
        I think. I want the court to acknowledge -- I know that the court has—her presence
        here today. She does support the State’s recommendation, which is going to be
        high end.

3 RP at 96. The prosecutor then stated that prostitution “is a culture” and discussed some of the

acts that “guys are requesting” from “the girls” and that “these strange men” pay the girls “to do

these things to them.” 3 RP at 97. The prosecutor continued:

        I want to emphasize to [the victims] . . . . Sorry. I have known them both for now
        two to three years. This is going to take me a second, but it is going to be quick
        when I finally get around to saying it. They are not broken. Nothing is wrong with
        them. They are both beautiful. They are both smart.

3 RP at 98. Williams did not object to the prosecutor’s statements.

        Williams then argued for an exceptional sentence below the standard range.                  He

emphasized his age and immaturity, that the sentences of defendants in other cases who were

convicted of the same offense were lower, and that the victims were willing participants. The

prosecutor responded stating, “I’m objecting to this.” 3 RP at 121. “These girls . . . they are not

out there getting anything, Judge, other than . . . raped every day. They are underage . . . . [Williams




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was] the accomplice to the rape . . . an accomplice to Rape Child III.” 3 RP at 131-32. Williams

did not object.

       The prosecutor also argued:

       The initial charge was based on the kidnapping theory, and there was a kidnapping
       count.
               In fact, the facts were pretty close. They don’t give you the e-mails that
       [one of the victims] sent out talking about not being able to leave, needing
       somebody to get her, and she can’t, they won’t let her. They don’t talk about the
       fact that their phones were taken from them, so they are not communicating . . . .
       They don’t talk about the Gucci belt that was used to beat them with. They don’t
       talk about any of those things.
               ....
       They don’t show you the text messages where [one of the victims] says, I’m going
       to kill myself.
               ....
       [T]hey took them to the mall to cash out, which means they allowed them to buy
       something with the money that they made having sex with these men. How nice of
       them to allow them to have a little bit. They will hold the money and pay for it, but
       they allowed them to go to the mall one day and actually buy something for
       themselves, and I’m sure that it was lingerie.

3 RP at 129-30. Williams did not object.

       The prosecutor also stated that it would be inconsistent for the minors to be willing

participants when the victim’s age is “a statutory aggravator factor” to human trafficking in the

second degree. 3 RP at 135.

       Williams addressed the court in support of his request for an exceptional sentence below

the standard range stating, “I treated them like they were adults because that’s what I thought that

they were.” 3 RP at 148. He continued:

       I should have cared, but, honestly, I didn’t. I didn’t care . . . . Who am I to judge
       if a girl wants to do that? I know girls that do that.
                ....
                Yes, I participated. I knew what was going, yes . . . but I can’t beat the
       fact that they are under 18. Everybody knows it. This is just a little bit of people
       in the room. Imagine if there was a trial. Twelve people, bing, bing, bing.
       Raped, sodomized. I’m going to lose, period, and I’m not stupid.



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3 RP at 148, 150.

       The sentencing court imposed a standard range sentence of 150 months. Williams appeals.

                                           ANALYSIS

I.     BREACH OF PLEA AGREEMENT

       Williams argues that the State breached the parties’ plea agreement by implicitly

advocating for an exceptional sentence above the standard range and arguing against Williams’s

request for an exceptional sentence below the standard range. We disagree.

       Whether a breach of a plea agreement has occurred is a question of law we review de novo.

State v. Neisler, 191 Wn. App. 259, 265, 361 P.3d 278 (2015), review denied, 185 Wn.2d 1026

(2016). A defendant may raise the issue of a prosecutor’s breach of a plea agreement for the first

time on appeal. State v. Xaviar, 117 Wn. App. 196, 199, 69 P.3d 901 (2003). Because a defendant

gives up important constitutional rights by agreeing to a plea bargain, due process considerations

come into play. State v. Sledge, 133 Wn.2d 828, 839, 947 P.2d 1199 (1997). “Due process requires

a prosecutor to adhere to the terms of the agreement.” Sledge, 133 Wn.2d at 839. In determining

whether a prosecutor has breached a plea agreement’s terms, we review the sentencing record as

a whole using an objective standard. State v. Carreno-Maldonado, 135 Wn. App. 77, 83, 143 P.3d

343 (2006). “When the prosecutor breaches a plea agreement, the appropriate remedy is to remand

for the defendant to choose whether to withdraw the guilty plea or specifically enforce the State’s

agreement.” State v. Jerde, 93 Wn. App. 774, 782-83, 970 P.2d 781 (1999).

       Williams argues that the State breached the plea agreement by arguing for an exceptional

sentence above the standard range and undermining Williams’s argument for an exceptional

sentence below the standard range. The record, however, shows differently.




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       First, Williams agreed to plead guilty to one count of human trafficking in the second

degree, with the aggravating factor that the victims were minors. While the parties discussed this

aggravator during the sentencing hearing, it was in response to Williams’s argument regarding

mitigating factors. Moreover, the prosecutor never argued for an exceptional sentence above the

standard range; instead he argued for a standard range sentence as agreed to in the plea agreement.

       Second, per the plea agreement, Williams could argue for an exceptional sentence below

the standard range. Nowhere in the plea agreement did the prosecutor agree to support an

exceptional sentence. A prosecutor does not breach a plea agreement by participating in a

sentencing hearing. State v. Talley, 134 Wn.2d 176, 178, 949 P.2d 358 (1998). The prosecutor

was free to advocate for a standard range sentence, as agreed to in the plea agreement, and was not

required to join Williams’s request for an exceptional sentence. The prosecutor’s comments were

part of that advocacy.

       Because the prosecutor adhered to the terms of the parties’ plea agreement, Williams fails

to show that a breach of the agreement occurred.

II.    REAL FACTS DOCTRINE

       Williams next argues that the sentencing court violated the real facts doctrine by

considering facts relevant to an uncharged crime, by considering facts outside what Williams

acknowledged, and by not conducting an evidentiary hearing. The State counters that Williams

cannot raise these arguments because he received a standard range sentence and he did not object

below. We agree with the State.

       Generally, sentences within the standard sentence range are not appealable. RCW

9.94A.585(1); State v. Osman, 157 Wn.2d 474, 481, 139 P.3d 334 (2006). The sentencing court

has discretion to sentence a defendant within the sentence range, and so long as the sentence falls



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within the standard sentence range, there can be no abuse of discretion as to the sentence’s length.

RCW 9.94A.530(1); State v. Williams, 149 Wn.2d 143, 146-47, 65 P.3d 1214 (2003). A defendant

may appeal a standard range sentence only if the sentencing court failed to comply with the

procedural requirements of the Sentencing Reform Act of 1981, chapter 9.94A RCW, or

constitutional requirements. Osman, 157 Wn.2d at 481-82.

          Williams argues that his standard range sentence is appealable because the sentencing court

committed a procedural error by violating the real facts doctrine. The real facts doctrine, RCW

9.94A.530(2), provides in part, “In determining any sentence other than a sentence above the

standard range, the trial court may rely on no more information than is admitted by the plea

agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing, or proven

pursuant to RCW 9.94A.537.” RCW 9.94A.530(2) further states, “Where the defendant disputes

material facts, the court must either not consider the fact or grant an evidentiary hearing on the

point.”

          But to be entitled to raise a real facts doctrine issue on appeal, Williams must first show

that he raised a “timely and specific objection” to the sentencing court’s consideration of the

allegedly improper information. State v. Grayson, 154 Wn.2d 333, 338-39, 111 P.3d 1183 (2005).

Moreover, defendants who receive a standard range sentence must object to unproven assertions

of fact presented at sentencing to preserve error under the real facts doctrine. State v. Mail, 121

Wn.2d 707, 711-12, 854 P.2d 1042 (1993). Williams fails to make this showing.

          Williams argues that the real facts doctrine was violated based on the prosecutor’s

arguments during the sentencing hearing, including the prosecutor’s statement that Williams was

an accomplice to rape, the prosecutor knew the victims for two to three years, there was a

prostitution culture where certain acts were requested, Williams was originally charged with



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kidnapping, the victims were treated poorly, and Williams’s attitude of not taking responsibility.

Williams did not raise a single objection during the sentencing hearing.

        Williams appears to argue that his request for an exceptional sentence below the standard

range amounts to an umbrella objection to anything argued to the contrary. But this argument is

incorrect. There must be a “timely and specific objection” to the sentencing court’s consideration

of the allegedly improper information as required in Grayson, 154 Wn.2d at 338-39. Moreover,

defendants who receive a standard range sentence must object to unproven assertions of fact

presented at sentencing to preserve error under the real facts doctrine. Mail, 121 Wn.2d at 711-

12. Given Williams’s failure to raise a specific and timely objection, we decline to address the

challenge to his standard range sentence further.

        We affirm.

        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.




                                                            Melnick, J.

We concur:




        Maxa, C.J.




        Lee, J.




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