IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 56963-9-II

Respondent,

v.

MARCUS BERNETT THORNTON, UNPUBLISHED OPINION

Appellant.

LEE, J. — Marcus B. Thornton appeals his sentence following resentencing, arguing that 

the superior court erred by deferring to the original sentencing judge and not granting him a full 

resentencing hearing. Thornton also argues that the superior court erred by imposing legal 

financial obligations (LFOs) because he is indigent. We affirm Thornton’s standard range 

sentence, but remand to the superior court to consider the challenged LFOs consistent with the 

current law. 

FACTS

On September 24, 2015, a jury found Thornton guilty of second degree murder with a 

deadly weapon sentencing enhancement. Thornton had an offender score of 3 based on prior 

convictions for second degree assault (2 points) and unlawful possession of a controlled substance 

(1 point). Thornton’s standard sentencing range with the deadly weapon sentencing enhancement 

was 178-278 months. The trial court imposed a standard range sentence of 244 months. The trial 

court also imposed $800 of LFOs: $500 crime victim assessment, $100 deoxyribonucleic acid

(DNA) database fee, and $200 criminal filing fee, as well as interest on all LFOs. 

Filed

Washington State

Court of Appeals

Division Two

September 19, 2023
No. 56963-9-II

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On July 20, 2021, the superior court heard arguments to correct Thornton’s judgment and 

sentence based on State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021). At the hearing, the State 

argued that, despite the change in the standard sentencing range, the superior court should impose 

the same sentence as the trial court at Thornton’s original sentencing. Thornton’s counsel 

requested a low-end standard range sentence, noting that at trial a jury had found him not guilty of 

first degree murder and he still had a substantial amount of time to serve. Thornton told the 

superior court that he took full responsibility for his actions the night of the murder, that he did not

intend to harm anyone before the fight happened, and he wanted to take it back. The superior court 

stated:

Okay. Well Mr. Thornton got the mid-range last time. In keeping with my, 

essentially, way of thinking about things, I’m going to stay with the mid-range 

sentence . . . . I will just point out that, while it’s true that [the State says] that this 

is not a typical resentencing and that we shouldn’t consider anything that he’s done 

positive or negative in resentencing, a number of times in these hearings, there has 

been a realization that perhaps the offender score originally was wrong or that a 

point was missed the first time around or that the defendant has obtained 

intervening conviction that adds time to his sentence, so I don’t necessarily disagree 

with the notion that this is a different sort of sentencing. It is a sentencing, 

nonetheless, and I’m going to impose 205 months plus 24, which is 229, as the new 

sentence.

 

Verbatim Rep. of Proc. (VRP) (Jul. 20, 2021) at 9. Nobody raised or addressed LFOs at the 

hearing. 

The superior court entered an order removing the unlawful possession of a controlled 

substance conviction from Thornton’s criminal history, resulting in an offender score of 2 and a 

total standard sentencing range of 168-268 months. The superior court imposed a sentence of 229 

months’ total confinement. The superior court’s order also stated “that all other terms and 

conditions of the original Judgment and Sentence dated October 1, 2015, shall remain in full force 

and effect as if set forth in full herein.” Clerk’s Papers at 48. 
No. 56963-9-II

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Thornton appeals.

ANALYSIS

A. STANDARD RANGE SENTENCE

Thornton appeals his sentence, arguing that the superior court erred by failing to make an 

independent determination as to his sentence. We disagree.

Generally, a sentence within the standard sentencing range may not be appealed. RCW 

9.94A.585(1). However, “this rule does not preclude a defendant from challenging on appeal the 

underlying legal determinations by which the sentencing court reaches its decision.” State v. 

McFarland, 189 Wn.2d 47, 56, 399 P.3d 1106 (2017). 

Thornton asserts that the superior court failed to make an independent determination as to 

his sentence, but the record belies this assertion. The superior court clearly stated that it recognized 

that this was an independent sentencing hearing. VRP (Jul. 20, 2021) at 9 (“It is a sentencing, 

nonetheless.”). Further, the superior court imposed a sentence consistent with its “way of thinking 

about things,” rather than deferring to the previous sentence. VRP (Jul. 20, 2021) at 9. 

Also, the superior court did not refuse to consider any specific sentencing request made by 

Thornton. Thornton’s attorney simply requested a low-end standard range sentence, noting that 

Thornton had been found not guilty of first degree murder and was facing a long sentence. And 

Thornton stated that he took responsibility for his actions and he was sorry that the victim died. 

After Thornton made his request for a low-end standard range sentence, the superior court imposed 

a standard range sentence at the resentencing hearing based on the court’s own “way of thinking 

about things.” VRP (Jul. 20, 2021) at 9.

Therefore, contrary to Thornton’s assertion, the superior court committed no legal error at 

the resentencing hearing. Accordingly, Thornton’s standard range sentence is not appealable. 
No. 56963-9-II

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B. LFOS

Thornton also argues that because he is indigent, the superior court erred by imposing the 

following LFOs: $500 crime victim assessment; $200 criminal filing fee; $100 DNA fee; 

community custody supervision fee; and interest to accrue on all LFOs, not just restitution. In the 

interests of justice, we remand to the superior court to consider the challenged LFOs consistent 

with the current law.1 

Under RAP 2.5(a), we “may refuse to review any claim of error which was not raised in 

the trial court.” Further, unpreserved LFO errors are not the type of sentencing errors that requires 

review as a matter of right. State v. Blazina, 182 Wn.2d 827, 833-34, 344 P.3d 680 (2015).

Here, Thornton did not address LFOs at his resentencing. Therefore, Thornton has failed 

to preserve his challenge to the LFOs. However, we may exercise our discretion to address 

unpreserved LFOs errors. Id. at 834-35. There have been various changes to the law regarding 

imposition of LFOs,2and the State has no objection to remanding for the superior court to impose 

LFOs consistent with those changes. Accordingly, despite Thornton’s failure to preserve his 

challenge to the LFOs, we remand to the superior court to consider the challenged LFOs consistent 

with the changes in the law.

 

1

 Thornton also argues that the crime victim assessment is unconstitutional. Effective July 1, 

2023, the crime victim assessment may no longer be imposed on a defendant who is found to be 

indigent. RCW 7.68.035(4); LAWS OF 2023, ch. 449 § 1. Because we remand for the superior 

court to consider the challenged LFOs consistent with the changes in the law, we decline to address 

Thornton’s constitutional challenge to the crime victim assessment. See Reykdal v. Espinoza, 196 

Wn.2d 458, 460 n.1, 473 P.3d 1221 (2020) (“‘Where an issue may be resolved on statutory 

grounds, the court will avoid deciding the issue on constitutional grounds.’” (quoting Tunstall v. 

Bergeson, 141 Wn.2d 201, 210, 5 P.3d 691 (2000), cert. denied, 532 U.S. 920 (2001))). 

 

2

 For example, the statutory authority to impose a DNA collection fee has been removed by our 

legislature. See RCW 43.43.7541.
No. 56963-9-II

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We affirm Thornton’s standard range sentence but remand to the superior court to consider 

the challenged LFOs consistent with the current law.

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.

Lee, J.

We concur:

Cruser, A.C.J.

Price, J.