IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

MATTHEW JAMES LOWE,

Appellant.

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No. 39588-0-III

UNPUBLISHED OPINION

COONEY, J. — After pleading guilty to four sex offenses, Matthew Lowe appeals, 

contending the State breached the plea agreement. Mr. Lowe also appeals the trial 

court’s imposition of several legal financial obligations (LFOs).

We affirm Mr. Lowe’s judgment and sentence and remand for the trial court to 

strike the victim penalty assessment (VPA), the DNA collection fee, and the community 

custody supervision fees from the judgment and sentence.

BACKGROUND

Mr. Lowe sexually abused Victim A1for five years, from when she was 13 years

old until she disclosed the abuse at age 18. After Victim A’s father passed away, Mr. 

 

1 Although this court’s general order of September 22, 2023, requires reference to 

victims by their initials, the trial court record consistently identifies the victims as A, B, 

and C. For clarity and consistency, this memorandum follows the convention used by the 

parties in the trial court.

FILED

JULY 23, 2024

In the Office of the Clerk of Court

WA State Court of Appeals Division III
No. 39588-0-III

State v. Lowe

2

Lowe assumed a father figure role to Victim A and abused his position of trust to gain 

access to her. The abuse was documented through innumerable images, many of which 

Mr. Lowe shared with a friend. Mr. Lowe further manipulated Victim A to convince 

Victims B and C, who were also children, to share sexually explicit images of themselves 

with him. Due to the egregiousness of the facts underlying Mr. Lowe’s convictions, the 

superior court judge “was worried for [the] mental health of people in the courtroom” had 

the case proceeded to trial. Rep. of Proc. (RP) at 339.

Mr. Lowe initially exercised his constitutional right to a jury trial. However, the 

first trial abruptly ended in a mistrial when one of the prospective jurors tainted the 

venire. Several months later, at the start of the second trial, Mr. Lowe and the State 

entered into a plea agreement following heavy negotiations. The plea involved the State 

dismissing three of the seven original counts, dismissing all aggravators, and the State 

and victims jointly recommending 210 months of confinement, the low-end of the 

standard range. In exchange, Mr. Lowe agreed to plead guilty to the remaining four

counts and accept forfeiture of all seized property. To his credit, Mr. Lowe voluntarily 

entered sex offender treatment almost immediately after his arrest, and his presentence 

investigation indicated an ongoing willingness to engage in treatment while incarcerated. 
No. 39588-0-III

State v. Lowe

3

Because the primary issue is whether the State breached the plea agreement by 

undercutting the agreed sentencing recommendation, the State’s recommendation is 

reproduced below. 

[T]here is so much more to this case than what was contained in that 

Probable Cause Affidavit or what was contained in the original trial 

memorandum that was submitted by the state. The charges in this case 

primarily relate to one victim who we have referred to in all materials as 

Victim A. . . . But I think something that has been lost is that she is not the 

only victim in this case. There are two other victims.

And from the state’s perspective one of the things that is so 

dangerous about Mr. Lowe is that he was able to present himself as an 

upstanding citizen of Benton County, a man who participated and led 

groups in the church, a man who was a dedicated husband and father. But 

he was also a man who utilized those roles to facilitate his contact with 

Victim A. And Victim A then reached out to other friends and ended up 

introducing them to Mr. Lowe. And Mr. Lowe used her to do that. 

And the Victim Impact Statement that your Honor has before you, 

Victim A is so introspective and has talked about all of the many farreaching impacts that Mr. Lowe’s conduct had on her and her life, but I did 

notice one of the things that was missing was the introduction of Mr. Lowe 

to these other two young ladies. And I have no doubt that that is because 

that is simply crushing to Victim A. Because not only was she herself 

engaged in this awful, awful ongoing cycle of physical and sexual abuse 

with Mr. Lowe, but she also made it possible for him to victimize these two 

other girls. And obviously she was 13 years old at the time. She had no 

idea what she was doing. And it’s now only as an adult that she can look 

back and see the impact on herself but also the impact on the other 

individuals who were involved. 

Mr. Lowe made Victim A complicit in what he was doing. And I 

have no doubt that that fact is one of the most searing and difficult things 

for Victim A to continue to process. And it was evident in our 

conversations with her throughout this case that that was incredibly difficult 

for her. 
No. 39588-0-III

State v. Lowe

4

This was not something that only went on for a year or two years 

while she was a teenager. It went on for an extended period of time. And 

all the while this was going on, Mr. Lowe was being lauded as an 

outstanding community member, who took care of Victim A. Victim A’s 

own mother trusted the defendant to pick her up from middle school. 

That’s how many of the initial sexual abuse incidents and physical abuse 

incidents occurred. He actually picked her up from middle school. And it 

went on from there. 

Mr. Lowe is the type of individual that we cannot have in our 

community, because he is so good at manipulating others and making them 

believe that he is the man that he presents to other adults in our community. 

But Victim A is the individual who saw the other side, as are Victim B and 

Victim C. 

In resolving this case, the state heavily weighed the impact that a 

trial would have, not just on Victim A but also on Victim B and on Victim 

C. And ultimately, despite the gruesome nature of this case, as your Honor 

is fully aware from all of the documents that have been submitted, we came 

to the conclusion that it was appropriate for us to go forward and to 

recommend the bottom end of the range on Count I, which is the rape of a 

child in the second degree count, and we believe that that is very 

appropriate. 

During the course of the investigation of this case, Victim A 

continually talked about how Mr. Lowe would tell her that he was doing 

things for her benefit. One example, and there was quite a bit of forensic 

material that confirmed this, he would do things like telling her she had to 

go to bed at a certain time. So he would have her take a picture of the 

digital clock in her kitchen to confirm that she was at home and that she 

was going to bed. He would also require her to do things like schoolwork, 

things that uninvolved individuals would believe were very positive things, 

things that [Victim A]’s mother even, the Victim A’s mother believed were 

positive things. Ultimately, your Honor, the only positive thing that Mr. 

Lowe has ever done for Victim A is take responsibility for what he did. 

And that is why we are recommending 210 months as well. 

We’re recommending the top end of the range on Count III, which is 

rape of a child in the third degree. That’s 60 months. We’re recommending 

the top end of the range on Count IV, which is sexual exploitation of a 
No. 39588-0-III

State v. Lowe

5

minor and 120 months. And we’re recommending the top end of the range 

on Count VII, which is possession of depiction of minors engaged in 

sexually explicit conduct, and that’s 83 months. 

Count I is an indeterminate offense, also includes lifetime 

supervision with the Department of Corrections. The other three counts 

involve 36 months of supervision with the Department of Corrections. And 

the state has delineated all of that in the Judgment and Sentence.

We are also asking that Court impose all of the conditions as laid out

in the Appendix H, as well as the no-contact order for life with all of the 

victims in this matter. The state has also addressed forfeiture of all of the 

items that were utilized by Mr. Lowe, either to facilitate the offense or to 

document the images that are present in this case. 

And ultimately, your Honor, we would ask that you follow the 

recommendation. We believe that a trial based upon the input from the 

victims in this case would have been devastating. And so while this is an 

extremely egregious case, we believe that that recommendation is 

appropriate and recognizes the impact that may otherwise have occurred, 

even though each of these victims is incredibly strong and would have been 

able to be here.

RP at 316-20. The State’s recommendation was presented without objection from 

defense counsel.

After the State offered its recommendation, Victim A’s mother briefly addressed 

the court. Victim A then made a statement, followed by her advocate who read Victim 

A’s victim impact statement into the record. 

Defense counsel tendered an argument in support of the agreed recommendation, 

emphasizing that Mr. Lowe is more than just the acts he pleaded guilty to and that he 

possessed several positive attributes. Exercising his right to allocution, Mr. Lowe

apologized to God, his family, Victim A, his wife, and the judge. 
No. 39588-0-III

State v. Lowe

6

Finally, the court issued its sentence:

[W]hat I prefer to do is collect my thoughts, I step off the bench, and we 

don’t have this awkward where everybody has to be quiet, staring. So I’ll 

take five, at most ten, and I’ll be back in.

. . . .

So I want to start. This sounds awkward saying it, but I want to 

thank some people. This case for me personally as a judge, just difficult 

knowing it was going to happen, and the fact that the parties came together 

and were able to reach a resolution. I was in here and out of the courtroom 

during this process, and I didn’t see it, but you could feel it in the air. We 

were down here, and you were upstairs, and I know that took a lot, a lot of 

effort and involved a lot of people and a lot of emotions, and I have been in 

all the parties’ shoes. I have been in your shoes. I have been in your shoes. 

And throughout the course of this trial or throughout the course of me 

hearing the hearings and jury selections, twice. It’s been a very 

professional presentation. And I could see that it would be difficult to do. 

Law enforcement that had to do this investigation, can’t be the same 

after viewing the stuff, either, and seeing what has occurred here. The 

victims, I just, I don’t know how to respond to that. The strength that they 

have to come forward, the strength they have to continue to persevere is 

something that I could never experience. 

The statement where, talked about having super powers, how else 

would you describe it? How else would you describe it? And when she 

said in her statement she didn’t want to sound vindictive or vengeful, you 

get to. You get to want him to rot in hell. I mean it’s actually therapeutic 

to say that. I mean to say that not be vindictive, that’s the strength of 

somebody I can’t even understand. So it is a super power. 

And listening to her statement was extremely impactful on me. I 

can’t ever be the same. I waved signs in the cold rain for this job, did first 

three murder trials, nothing. Those victims and the family’s victims, the 

victims are gone. The families have continuing pain. In this particular case 

the victimization will never end. There are people that aren’t even born yet 

that will be victims of your conduct. There are⎯the wide-spread 

devastation just can’t be understated. 
No. 39588-0-III

State v. Lowe

7

Have been in both of your shoes, both counsel’s shoes. The process 

doesn’t work, not with this case, but with all of the cases, if the courts don’t 

give some respect to agreements that are reached. If defense can’t count on 

the court’s giving some deference to agreements, agreements will never be 

reached. The system will shut down. I mean it will literally shut down. 

The Court also has that in mind.

. . . .

The parties have reached an agreement for the bottom-of-the-range 

sentence on Count I of 210 months. The Court struggles with that. As I 

indicated, for the process to work, the Court has to respect them. And I’m 

trying to think of the last time I didn’t follow an agreement. I haven’t 

followed every agreement, but it’s been a while. I know the parties worked 

hard on this, and I know the parties went upstairs and downstairs and with 

the duly elected official and victims were involved. I want to respect that 

process. But I don’t know who all is here. I know some of the people here 

who spoke. Everybody in this room, their sentence is going to go on 

forever. And so the Court is not going to follow the agreement. 

And on Count I the Court’s going to impose the top of the range of 

280 months. Count III, 60 months, top of the range. Count V, top of the 

range, 120 months. And on Count VII, top of the range, 83 months. 

I appreciate the process of a negotiation, but our community can’t be 

the same. And I think this top of the range is appropriate. I will say that 

accepting responsibility and resolving this and not having to put the people 

through trial is a step, is a step. I was worried about trial. I was worried 

about its impact. Having prepared for trial and the trial briefs that I read, I 

was worried for mental health of people in the courtroom.

RP at 334-36, 339.

ANALYSIS 

On appeal, Mr. Lowe contends the State’s recommendation at the sentencing 

hearing breached the plea agreement, thereby violating his right to due process, and that 

the trial court erred when it ordered several LFOs. Mr. Lowe raises additional issues in a 

statement of additional grounds (SAG).
No. 39588-0-III

State v. Lowe

8

APPEALABILITY

As a preliminary matter, we address the appealability of the State’s alleged breach 

of the plea agreement. For the first time on appeal, Mr. Lowe asserts the State breached

the plea agreement, thereby violating his right to due process. Generally, a party may not 

raise a new argument on appeal that was not presented to the trial court. In re Det. of 

Ambers, 160 Wn.2d 543, 557 n.6, 158 P.3d 1144 (2007). To preserve for appellate 

review a perceived error, a party must inform the trial court of the applicable rule of law 

and afford the trial court an opportunity to correct any error. Smith v. Shannon, 100 

Wn.2d 26, 37, 666 P.2d 351 (1983). 

Notwithstanding, RAP 2.5(a)(3) allows an appellant to raise for the first time on 

appeal a “manifest error affecting a constitutional right.” When a prosecutor breaches a 

plea agreement, it “undercuts the basis for the waiver of constitutional rights implicit in 

the plea.” State v. Tourtellotte, 88 Wn.2d 579, 584, 564 P.2d 799 (1977). The breach 

of a plea agreement constitutes an error affecting a constitutional right for purposes of 

RAP 2.5(a)(3). 

However, as explained in State v. Sanchez, 146 Wn.2d 339, 346, 46 P.3d 774

(2002), the fact that an error affects a constitutional right does not mean it can always be 

raised for the first time on appeal. The error must also be “manifest.” Id. An error is 

considered “manifest” if the appellant shows actual prejudice. State v. McFarland, 127 
No. 39588-0-III

State v. Lowe

9

Wn.2d 322, 333, 899 P.2d 1251 (1995). Whether an error is “manifest” must be decided 

on a case-by-case basis, depending in large part on whether “the facts necessary to review 

the claim are in the record.” Sanchez, 146 Wn.2d at 346.

As the appellant, Mr. Lowe carries the burden of demonstrating that the alleged 

error is manifest. State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009). Rather than 

address whether the alleged error is manifest, Mr. Lowe asserts RAP 2.5(a)(3) is 

inapplicable because this court reviews breach of plea agreement claims de novo. Reply 

Br. of Appellant at 1-2. We agree; constitutional claims are always reviewed de novo. 

Yet, some constitutional claims cannot be raised for the first time on appeal. 

Regardless of whether an error meets the requirements of RAP 2.5(a)(3), we retain 

discretion under RAP 2.5(a) “to accept review of claimed error[s] not appealed as a 

matter of right.” State v. Blazina, 182 Wn.2d 827, 834-35, 344 P.3d 680 (2015). Here, 

we exercise that discretion and review Mr. Lowe’s unpreserved alleged error.

BREACH OF PLEA AGREEMENT

We review de novo claims that the State breached a plea agreement. State v. 

Molnar, 198 Wn.2d 500, 513, 497 P.3d 858 (2021). A plea agreement is a contract. 

State v. Mollichi, 132 Wn.2d 80, 91, 936 P.2d 408 (1997). However, because plea 

agreements concern the fundamental rights of the accused, thereby implicating due 

process protections, they are more than simple common law contracts. State v. Sledge, 
No. 39588-0-III

State v. Lowe

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133 Wn.2d 828, 839, 947 P.2d 1199 (1997). “Due process requires a prosecutor to 

adhere to the terms of the agreement.” Id. “A prosecutor is obliged to fulfill the State’s 

duty under the plea agreement by making the promised sentencing recommendation. The 

recommendation need not be made enthusiastically.” Id. at 840 (internal quotation marks 

omitted).

“The prosecutor, as an officer of the court, is obliged to participate in the 

sentencing proceedings, candidly answering the court’s questions in accordance with 

RPC 3.3, and holding back no relevant information regarding the plea agreement.” Id.

(citing RCW 9.94A.460). Simultaneously, however, the State has a concomitant duty not 

to undermine the terms of the agreement either explicitly or through conduct 

demonstrating an intent to evade the terms of the plea agreement. Id.

Just because the parties reached an agreed recommendation does not mean the 

sentencing court “[sh]ould be faced with a one-sided hearing.” State v. Talley, 134 

Wn.2d 176, 186, 949 P.2d 358 (1998). “The State must be allowed to use descriptive 

words in addition to stipulated facts because, while the State’s ‘recommendation need not 

be made enthusiastically,’ it need not be made so unenthusiastically that it is unhelpful to 

the sentencing court.” Molnar, 198 Wn.2d at 517 (emphasis omitted) (internal quotation 

marks omitted) (quoting Sledge, 133 Wn.2d at 840). Thus, the mere mention of 

aggravating facts does not automatically breach the plea deal. Id. at 516.
No. 39588-0-III

State v. Lowe

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Ultimately, “we must ‘review [the] prosecutor’s actions and comments objectively 

from the sentencing record as a whole to determine whether the plea agreement was 

breached.’” State v. Ramos, 187 Wn.2d 420, 433, 387 P.3d 650 (2017) (alteration in 

original) (quoting State v. Carreno-Maldonado, 135 Wn. App. 77, 83, 143 P.3d 343 

(2006)). “A breach occurs when the State ‘undercut[s] the terms of the agreement 

explicitly or implicitly by conduct evidencing an intent to circumvent the terms of the 

plea agreement.’” Id. (alteration in original) (quoting Carreno-Maldonado, 135 Wn. 

App. at 83). “Nevertheless, we review the State’s actions objectively, focusing ‘on the 

effect of the State’s actions, not the intent behind them.’” Id. (quoting Sledge, 133 

Wn.2d at 843 n.7). 

Here, the State agreed to recommend the low end of the standard range. Because 

the recommendation was for the low end, Mr. Lowe argues the State lacked justification 

to present the following statements to the court:

• “But I think something that has been lost is that [Victim A] is not the only 

victim in this case. There are two other victims.” RP at 316.

• “[O]ne of the things that was missing [from the victim impact statement] 

was the introduction of Mr. Lowe to these other two young ladies. And I have no 

doubt that that is because that is simply crushing to Victim A. Because not only 

was she herself engaged in this awful, awful ongoing cycle of physical and sexual 

abuse with Mr. Lowe, but she also made it possible for him to victimize these two 

other girls.” RP at 317.

• “Mr. Lowe is the type of individual that we cannot have in our community, 

because he is so good at manipulating others and making them believe that he is 

the man that he presents to other adults in our community.” RP at 318.

• “[T]his is an extremely egregious case.” RP at 320.
No. 39588-0-III

State v. Lowe

12

In addition to the foregoing comments, Mr. Lowe points to the statement that the 

plea was “‘heavily negotiated’” to suggest that the State “never appeared fully on board” 

with the agreement. Br. of Appellant at 13 (quoting RP at 331). However, that statement 

was made by defense counsel, not the State. Even then, heavy negotiations do not 

necessarily imply that the State was not “on board” with the agreement. Rather, it means 

the resulting settlement took substantial effort. Moreover, informing the court that an 

agreement was “heavily negotiated” is usually an implicit plea to the court to honor the 

parties’ agreement.

With respect to Victims B and C, Mr. Lowe suggests that the State’s references to 

them was improper because the charges he pleaded guilty to committing related only to 

Victim A. Br. of Appellant at 14; Reply Br. of Appellant at 3. Mr. Lowe is incorrect. In 

the second amended information, three of the four counts Mr. Lowe pleaded guilty to 

committing listed Victim A as the victim. The last count, possession of child 

pornography, did not list a victim. The statement of defendant on plea of guilty 

acknowledged that the settlement was “agreed to by the State and victims.” Clerk’s 

Papers (CP) at 78. The specification of “victims,” in the plural form, indicates that the 

plea was intended to encompass crimes against all three victims, not just Victim A. This 

intent is reinforced by Mr. Lowe’s personal statement that he possessed printed matter 

“depicting minors,” again plural, “engaged in sexually explicit conduct.” CP at 84. 
No. 39588-0-III

State v. Lowe

13

Absent from the record is any indication that the plea was intended to exclude Victims B 

and C. 

Importantly, the State’s references to Victims B and C were brief and fairly 

innocuous. This is not a case where the State went into excruciating detail about the 

facts. See State v. Xaviar, 117 Wn. App. 196, 200, 69 P.3d 901 (2003); Sledge, 133 

Wn.2d at 830; Carreno-Maldonado, 135 Wn. App. at 80-81. Rather, the State merely 

reminded the court that there were three victims, not one. Such a brief reminder cannot 

reasonably be read as undermining the plea agreement or advocating for a more severe

penalty than was negotiated by the parties. Considering the rights crime victims have in 

Washington, and the expectation that the State will represent their views to the court, it 

would have been unwonted for the State to make absolutely no mention of Victims B 

or C. See WASH. CONST. art. I, § 35; ch. 7.69 RCW.

The next statement Mr. Lowe challenges is, “[T]his is an extremely egregious 

case.” RP at 320. Alone, this statement does not support the plea agreement, but neither 

does it undercut it. Rape of a child in the second degree (the offense that resulted in the 

lengthiest sentence) is always extremely egregious. It is a class A felony punishable by 

up to life imprisonment and is classified as a most serious offense for purposes of 

Washington’s persistent offender statute. RCW 9A.44.076; RCW 9A.20.021(1)(a); 
No. 39588-0-III

State v. Lowe

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RCW 9.94A.030(32)(a); RCW 9.94A.570. Unlike Xaviar, the State did not argue that 

this was a more egregious case of rape of a child than other cases of rape of a child. 

Instead, the State was merely expressing the obvious. 

Importantly, the statement that “this is an extremely egregious case” needs to be 

considered in the context of the prosecutor’s entire statement. The entire statement was:

And ultimately, your Honor, we would ask that you follow the 

recommendation. We believe that a trial based upon the input from the 

victims in this case would have been devastating. And so while this is an 

extremely egregious case, we believe that that recommendation is 

appropriate and recognizes the impact that may otherwise have occurred, 

even though each of these victims is incredibly strong and would have been 

able to be here.

RP at 320. The State was bolstering the parties’ agreement by acknowledging that the 

parties had already taken into account any circumstances that might have justified a 

higher sentence in reaching the agreed recommendation. In context, the statement 

actually disclaims any basis for imposing a higher sentence. 

Next, Mr. Lowe assigns error to the prosecutor’s statement, “[N]ot only was 

[Victim A] engaged in this awful, awful ongoing cycle of physical and sexual abuse with 

Mr. Lowe, but she also made it possible for him to victimize these two other girls.” RP at 

317. This statement was made in the context of mentioning that Mr. Lowe was able to 

gain access to Victims B and C through Victim A.
No. 39588-0-III

State v. Lowe

15

This statement was the other part of the State’s brief reminder to the court that 

there were three victims, not one. As previously discussed, the statement was brief and 

fairly innocuous. As to the State’s comment that Victim A was “engaged in this awful, 

awful ongoing cycle of physical and sexual abuse,” rape of a child is always awful and 

the crimes Mr. Lowe pleaded guilty to committing occurred over a five-year span. RP at 

317. When viewed in context, the description of the crimes as “awful” and an “ongoing 

cycle” did not undermine the plea agreement. 

The final statement Mr. Lowe challenges is, “Mr. Lowe is the type of individual 

that we cannot have in our community.” RP at 318. In support of the appropriateness of 

the statement, the State relies on Molnar. In Molnar, the Supreme Court approved the 

use of such value-laden descriptors, but preferred the State not use the language of 

unrequested statutory aggravators. 198 Wn.2d at 518-19. Because this statement did not 

use any language from statutory aggravators, Molnar supports the State’s argument. 

However, Molnar did not involve an agreed sentencing recommendation. 

Acknowledging this aspect of Molnar’s holding, the State argues that Molnar is 

still applicable because the State’s comment was an appropriate response to the letters of 

support from Mr. Lowe’s friends and family. Br. of Resp’t at 20. While these letters 

asked for “mercy” and “leniency,” id., and sought to bolster Mr. Lowe’s character, none 
No. 39588-0-III

State v. Lowe

16

expressly advocated for a sentence other than what the parties had agreed to recommend.2

Had any of the letters expressly asked for a sentence below the standard range, mentioned 

the statutorily-recognized mitigating factors in RCW 9.94A.535(1), or advocated for 

leniency based on the purposes of the Sentencing Reform Act of 1981, chapter 9.94A 

RCW, stated in RCW 9.94A.010, then perhaps, under Molnar, the State’s comment 

would have been an appropriate response to those letters. 

Of the statements challenged by Mr. Lowe, the statement, “Mr. Lowe is the type 

of individual that we cannot have in our community,” RP at 318, is the only statement 

that can be read as potentially undercutting the plea agreement. However, given the 

totality of the circumstances, this single, questionable statement is insufficient to 

constitute a breach of the plea agreement. Just because the parties reached an agreed 

recommendation does not mean the sentencing court “[sh]ould be faced with a one-sided 

hearing.” Talley, 134 Wn.2d at 186. 

When taking these statements into consideration, in addition to the single 

questionable statement highlighted by Mr. Lowe, the facts before us are far less egregious 

than those in Xaviar. Similar to Xaviar, the parties agreed to a low-end standard range 

sentence. Xaviar, 117 Wn. App. at 198. However, unlike the record before us, during 

 

2 The only letter that appeared to advocate for a different sentence came from Mr. 

Lowe’s father who asked that one “part” of the sentence include community service, 

while still acknowledging that his son still needed to serve time in prison: “I’m sure his 

time in prison will be pivotal in changing his behavior.” CP at 199.
No. 39588-0-III

State v. Lowe

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Mr. Xavier’s sentencing, the State presented new facts and made seven statements that 

we viewed as undercutting the plea deal. Further, unlike Xaviar, here the prosecutor did 

not highlight the dismissed charges or the sentence it would have requested but for the 

plea agreement, did not comment on any lack of remorse, did not attempt to compare Mr. 

Lowe’s case to any others it had prosecuted, nor did he inject any new facts that were not 

already before the court. 

Importantly, when looking to the State’s recommendation as a whole, it repeatedly 

urged the trial court to follow the recommendation:

• “[W]e came to the conclusion that it was appropriate for us to go forward and 

to recommend the bottom end of the range on Count I, which is the rape of a 

child in the second degree count, and we believe that that is very appropriate.”

RP at 318.

• “[T]hat is why we are recommending 210 months as well.” RP at 319.

• “And ultimately, your Honor, we would ask that you follow the 

recommendation.” RP at 320.

• “We believe that that recommendation is appropriate and recognizes the impact 

that may otherwise have occurred.” RP at 320. 

Moreover, the statements Mr. Lowe challenges were clearly made in the context of 

explaining the balancing process the State considered in reaching the plea deal: 

In resolving this case, the state heavily weighed the impact that a trial 

would have, not just on Victim A but also on Victim B and on Victim C. 

And ultimately, despite the gruesome nature of this case, as your Honor is 

fully aware from all of the documents that have been submitted, we came to 

the conclusion that it was appropriate for us to go forward and to 

recommend the bottom end of the range on Count I, which is the rape of a 

child in the second degree count, and we believe that that is very 

appropriate.
No. 39588-0-III

State v. Lowe

18

RP at 318. These facts also were not present in Xaviar. 

The State did not evince an intent to undercut the plea agreement. Rather, it went 

into little detail about the underlying facts, that were already before the court via the 

probable cause affidavit attached to the presentence investigation, and repeatedly 

requested that the trial court follow the agreed-upon recommendation. The State’s 

recommendation during Mr. Lowe’s sentencing hearing was not violative of the plea 

agreement.

LFOS

Mr. Lowe contends that because he is indigent the trial court erred when it ordered 

the VPA, the DNA collection fee, and community custody supervision fees. The State 

concedes. 

As explained in State v. Ellis, 27 Wn. App. 2d 1, 16-17, 530 P.3d 1048 (2023), 

Mr. Lowe is entitled to the benefit of recent changes in the law requiring that the $500 

VPA, $100 DNA fee, and community supervision fees not be imposed on indigent 

defendants. Accordingly, we remand for the trial court to strike the VPA, the DNA 

collection fee, and the community custody supervision fees.

SAG

Mr. Lowe raises three additional issues in his SAG. None merit relief.
No. 39588-0-III

State v. Lowe

19

Mr. Lowe’s first issue claims the judge was biased and had already made up his 

mind prior to the hearing. In support of his argument, Mr. Lowe cites the judge’s 

statement:

Before we adjourn, for those that presented, those that have been victimized 

and haven’t presented, those that are members of the families and friends of 

those that have been victimized, you’ve been victimized as well. Thank 

you for your presentations today. Thank you for your impact statements. 

They made an impact. I had highlights throughout. She identified herself, 

[Victim A]’s and her counselors, things that I was going to read out loud, 

things that changed me reading. I didn’t do that. Not sure why, but I 

didn’t. Thank you. You guys have super powers.

RP at 340-41. Mr. Lowe emphasizes the judge’s statement that he “had highlights 

throughout” to suggest the judge had already made up his mind. This statement does not 

logically support Mr. Lowe’s inference. At most, it supports an inference that the judge 

came prepared to sentencing, having already reviewed the written materials submitted by 

both sides. 

Mr. Lowe also highlights as evidence of bias the judge’s statement about how this 

case impacted him more than other traumatic cases:

And listening to [Victim A’s] statement was extremely impactful on 

me. I can’t ever be the same. I waved signs in the cold rain for this job, did 

first three murder trials, nothing. Those victims and the family’s victims, 

the victims are gone. The families have continuing pain. In this particular 

case the victimization will never end. There are people that aren’t even 

born yet that will be victims of your conduct. There are⎯the wide-spread 

devastation just can’t be understated. 
No. 39588-0-III

State v. Lowe

20

RP at 335-36. Mr. Lowe fails to explain how this statement evinced improper bias. The 

judge merely explained how he was personally impacted by listening to Victim A’s 

statement during the sentencing hearing. “Passing treatment of an issue or lack of 

reasoned argument is insufficient to merit judicial consideration.” Holland v. City of 

Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998).

Next, Mr. Lowe contends he received ineffective assistance from his counsel. Mr. 

Lowe claims his counsel was deficient by failing to mention several mitigating factors 

during sentencing. This argument fails to merit consideration due to Mr. Lowe’s failure 

to apply Strickland.

3

In re Matter of Rosier, 105 Wn.2d 606, 616, 717 P.2d 1353 (1986)

(quoting United States v. Phillips, 433 F.2d 1364, 1366 (8th Cir. 1970) (“[N]aked 

castings into the constitutional sea are not sufficient to command judicial consideration 

and discussion.”)). It also fails to merit review in part because it relies on facts outside 

the record. On direct appeal, the evidence this court considers consists of “(1) a ‘report 

of proceedings’, (2) ‘clerk’s papers’, (3) exhibits, and (4) a certified record of 

administrative adjudicative proceedings.” RAP 9.1(a).

Mr. Lowe also claims ineffective assistance of counsel due to only one of his two 

assigned lawyers appearing at the sentencing hearing and because counsel did not object 

to the judge’s “breach of the plea agreement.” SAG at 5. Again, Mr. Lowe fails to 

 

3 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984).
No. 39588-0-III

State v. Lowe

21

support his claim with citations to authority and argument based on that authority.

Furthermore, the judge is not a party to the plea agreement and Mr. Lowe acknowledged 

his understanding that the court did not have to follow anyone’s recommendation 

Lastly, Mr. Lowe asserts that he had inadequate time to consider the plea 

agreement. This issue relies entirely on facts outside the record and therefore is not 

properly before this court. A personal restraint petition is the proper avenue for 

addressing arguments based on facts outside of the record. State v. Estes, 188 Wn.2d 

450, 467, 395 P.3d 1045 (2017). 

We affirm Mr. Lowe’s sentence and remand to the trial court with directions to 

excise the VPA, the DNA collection fee, and the community custody supervision fees 

from the judgment and sentence.

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040.

Cooney, J.

WE CONCUR:

Lawrence-Berrey, C.J. Staab, J.