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MICHAEL WILLIAMS, II, UNPUBLISHED OPINION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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