\>' o~. c: I.I, I.I —{ £~

e~> !^> -7":

33» ; I_!

CZ ' ^ , .

G") ^-^ 1

CO 5~c

>-y

s» (/)(T|

"T~ -. .

*JL- '

CO CT>C/)

Ho en O'—

V© ~an<-

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

MARCQUES E. CRAWFORD,

Appellant.

No. 73131-9-1

DIVISION ONE

UNPUBLISHED OPINION

FILED: August 8, 2016

Appelwick, J. — Crawford was convicted of rape of a child in the third

degree and delivery of methamphetamine. The court sentenced him to a standard

range sentence of 18 months on the rape conviction and 61 months on the delivery

conviction. He argues that the trial court erred by considering the allegations of

promoting commercial sexual abuse of a minor in imposing these sentences. We

affirm.

FACTS

Marcques Crawford was charged with promoting commercial sexual abuse

of a minor, rape of a child in the third degree, and violation of the Uniform

Controlled Substances Act, chapter 69.50 RCW—delivery of methamphetamine

(meth) to a minor. The charges stemmed from Crawford's relationship with a
No. 73131-9-1/2

female minor, 15 year old N.J. The State alleged that Crawford had a sexual

relationship with N.J., supported her commercial sexual abuse and profited from

it, and that he supplied her with methamphetamine.

The case proceeded to trial, and N.J. testified. N.J. explained that during

the summer of 2013, she ran away from home. During that summer, she met

Crawford on a website. N.J. began spending time with Crawford. They smoked

methamphetamine together, which Crawford obtained for them. Shortlyafter they

met, Crawford began talking to N.J. about working as a prostitute. And, they

started having sexual intercourse.

N.J. testified that Crawford continued bringing up the subject of prostitution.

Eventually, N.J. agreed, because she believed Crawford would keep asking her.

Over several months, N.J. engaged in prostitution bywalking the streets and using

Internet ads, and she gave Crawford the money she received.

In December, N.J. became afraid that Crawford would hurt her. She called

911 to tell the police that Crawford was pimping juveniles and that he had a gun.

The police arrived at Crawford's apartment, and he was arrested that day.

The jury convicted Crawford of the rape and delivery charges. However,

the jury could not reach a verdict on the promoting charge. The State agreed to

dismiss this charge.

The trial court proceeded to sentence Crawford. It imposed standard range

sentences of 18 months for the rape conviction and 61 months for the delivery

conviction. Crawford appeals.
No. 73131-9-1/3

DISCUSSION

Crawford argues that the trial court relied on the unproved allegations of

promoting commercial sexual abuse of a minor to impose his sentences for rape

and delivery. He asserts that by doing so, the court violated the real facts doctrine.

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 trial court has discretion to sentence a defendant within the

sentence range, and so long as the sentence falls 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

(SRA), chapter 9.94A RCW, or constitutional requirements. State v. Osman, 157

Wn.2d at 481-82. Cases permitting such a procedural challenge to a standard

range sentence have typically involved errors in calculating the appropriate

standard range. State v. Mail, 65 Wn. App. 295, 298, 828 P.2d 70 (1992), affd,

121 Wn.2d 707, 845 P.2d 1042 (1993).

Crawford argues that his standard range sentence is appealable, because

the trial court committed a procedural error by considering facts relating to the

unproved promoting charge. He relies on RCW 9.94A.530(2), which sets out the

real facts doctrine. That provision of the SRA provides,

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
No. 73131-9-1/4

proved in a trial or at the time of sentencing, or proven pursuant to

RCW 9.94A.537. Acknowledgment includes not objecting to

information stated in the presentence reports and not objecting to

criminal history presented at the time of sentencing. Where the

defendant disputes material facts, the court must either not consider

the fact or grant an evidentiary hearing on the point. The facts shall

be deemed proved at the hearing by a preponderance of the

evidence, except as otherwise specified in RCW 9.94A.537. On

remand for resentencing following appeal or collateral attack, the

parties shall have the opportunity to present and the court to consider

all relevant evidence regarding criminal history, including criminal

history not previously presented.

RCW 9.94A.530(2).

This doctrine limits sentencing decisions to the facts that were

acknowledged, pleaded to, or proven. State v. Houf. 120 Wn.2d 327, 332, 841

P.2d 42 (1992). And, it ensures that sentencing courts do not base exceptional

sentences on unproved or uncharged crimes. State v. Morreira, 107 Wn. App.

450, 458, 27 P.3d 639 (2001).

Crawford points to evidence in the record to show that the court relied on

the facts relating to the promoting charge to sentence him. The State

recommended a sentence toward the higher end of the range, given Crawford's

overarching behavior and the fact that the hung jury voted nine in favor of

conviction,three infavor of acquittal. Crawford objected, because these facts were

related to the dismissed charge of promoting. The court did not explicitly rule on

this objection. In announcing its decision, the court addressed Crawford:

The crimes you're convicted of are really serious, though, and it's

really important—I realize you disagree with a lot ofthe facts and it's

your right to do that, but the actions that you took, even if I only

considered the crimes that you were convicted of, really had a

profound effecton [N.J's] life. And that's true even if she was already

addicted to meth when she met you, that was true even ifshe was

involved in various sexual activities before she met you. . . . And
No. 73131-9-1/5

there isn't really anything the court can do that's going to make all

this right, but Ithink it's really important that you acknowledge, ifonly

to yourself, that you played a significant role in harming this young

woman.

The court continued by telling Crawford that he would have to make choices about

what kind of relationship he would have with other people, including women, going

forward. The court ultimately decided that neither a low end nor a high end

sentence was appropriate considering the facts of the case.

From these statements, Crawford asserts that the trial court violated the real

facts doctrine. He contends that by stating "even if I only considered the crimes

that you were convicted of," the court acknowledged that it was considering the

promoting charge as well as the rape and delivery convictions. He suggests that

by mentioning N.J.'s sexual activities before she met Crawford, the court alluded

to N.J.'s prior acts of prostitution. And, he asserts that the court's warning that

Crawford will have to make choices about the relationships he will have with

women meant that he will have to decide whether he can stop treating women as

objects from which he can profit.

We disagree that these statements signaled consideration ofthe promoting

charge. Rather, they indicated that the court would not consider the facts

underlying that charge as the State had urged. The court imposed a sentence

based on only the crimesfor which Crawford was convicted. Crawford does not

allege an error in calculating the range itself. And, the cases he relies upon to

assert a violation of the real facts doctrine all involve exceptional sentences, rather

than standard range sentences. See, e.g., Morreira. 107 Wn. App. at 454-55;

State v. Tiernev. 74 Wn. App. 346, 350, 872 P.2d 1145 (1994); State v. Houf, 120
No. 73131-9-1/6

Wn.2d 327, 328, 841 P.2d 42 (1992). We hold that Crawford's standard range

sentence is not appealable.

In his reply brief, Crawford asserts that appellate costs should not be

imposed. Crawford's argument relates to this court's recent decision in State v.

Sinclair, 192 Wn. App. 380, 367 P.3d 612 (2016). In Sinclair, we noted that RAP

15.2(f) created a presumption of continued indigency throughout review. 192 Wn.

App. at 393. Because there was no finding that Sinclair's financial condition had

improved and no other evidence to rebut the presumption of indigency, we ruled

that appellate costs were not appropriate, jd.

We follow Sinclair here. The trial court found that Crawford lacked sufficient

funds to pursue an appeal and determined that he was entitled to appellate counsel

at public expense. The State has not overcome the continuing presumption of

indigency. Therefore, we conclude that appellate costs should not be awarded to

the State.

We affirm.

WE CONCUR:

dL

17