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### IN THE COURTOFAPPEALS OF THE STATE OF WASHINGTON 5? ~ STATE OF WASHINGTON Respondent,

v. MARVELL MICHAEL MILLER Appellant. DIVISION ONE
No. 73491-1-1 UNPUBLISHED OPINION
FILED: August 1,2016 Dwyer, J. — Marvell Miller pled guilty to two counts of residential burglary and two counts ofunlawful possession of a firearm. At his sentencing hearing, Miller was ordered to register as a felony firearm offender. Miller now appeals, 

### arguing that the felony firearm offender registration statute is unconstitutionally 

### vague, that the prosecutor violated the plea agreement, and that the sentencing court abused its discretion in requiring that he register as a felony firearm offender. Finding that Miller's contentions have no merit, we affirm.
I OnApril 13, 2015, Miller pledguilty to two counts ofresidential burglary and two counts ofunlawful possession of a firearm. Miller twice committed residential burglary by stealingfrom two residences. Miller twice committed 

### unlawful possession ofa firearm by possessing a handgun onhis person and five additional firearms in his car, contravening an order that barred him fromNo. 73491-1-1/2 possessing a firearm. Miller admitted that he carried the loaded handgun on his person during the burglaries incase he encountered any residents. The firearms in Miller's car included three assault rifles, a shotgun, and another handgun. All of the firearms were later identified as stolen. As part of his plea agreement, Miller stipulated to the facts as set forth in the determination ofprobable cause and the prosecuting attorney case summary. The State agreed not to file other charges arising out ofthe two burglaries. The 

### plea agreement further indicated thatthe sentencing court "may" require that Miller register as a felony firearm offender pursuant to RCW 9.41.330. At Miller's sentencing hearing, the prosecutor informed the court that it


### was required todetermine whether toorder Miller toregister as afelony firearm offender pursuant toRCW 9.41.330 and further informed thecourt as to the 

### pertinent statutory factors and the locations in the record ofinformation pertinent

to those factors. At the conclusion of the sentencing hearing, the court ordered Miller to 

### register as afelony firearm offender. This orderwas included in thejudgment

and sentence. Miller now appeals.
II Miller contends that RCW 9.41.330 is unconstitutionally vague and that 

### theorder imposing theregistration requirement should bevacated. We disagree. Thirteen years ago, our Supreme Court held that "the due process considerations that underlie the void-for-vagueness doctrine have no application

-2-No. 73491-1-1/3
in the context ofsentencing guidelines." State v. Baldwin, 150 Wn.2d 448, 459, 78 P.3d 1005 (2003). Because "nothing inthese [sentencing] guideline statutes requires a certainoutcome, the statutes create no constitutionally protectable liberty interest." Baldwin, 150Wn.2d at 461. Aswith the sentencing guideline statutes at issue in Baldwin, the statute herein grants a court discretion in 

### determining whether to impose the registration requirement onfelony firearm offenders. See RCW9.41.330. Our Supreme Court has never indicated a need 

### to revisit its holding in Baldwin. The Baldwin decision controls ouranalysis. The sentencing statute at issue is not subject to a facial void for vagueness challenge. Miller's claim fails.
Ill Miller next contends that the State violated the plea agreement by its actions at the sentencing hearing. We disagree. To determine whether the State breached a plea agreement, a reviewing 

### court applies an objective standard. State v. Jerde, 93 Wn. App. 774, 780, 970 P.2d 781 (1999). The testis whetherthe prosecutor contradicts, by words or conduct, theterms oftheplea agreement. Jerde, 93 Wn. App. at780. Once a 

### plea bargain has been entered into, the defendant has a right analogous to a 

### contract right to have the terms ofthe agreementfulfilled. State v. Arko, 52 Wn. App. 130, 134, 758 P.2d 522 (1988). We will not add terms to the plea bargain that werenot agreed to by the parties. Arko, 52Wn. App. at 135. The plea agreementherein read, in pertinent part, as follows: 

### This offense[,] counts II &IV[,] is afelony firearm offense as defined 

### by RCW 9.41.010, including any felony committed while armed withNo. 73491-1-1/4 a firearm, and the judge may impose a requirement that Iregister with the sheriff in the County where Ireside, for a period of four years from sentencing orfrom my release from confinement for this offense, whichever is later, in compliance with RCW 9.41.333. At the sentencing hearing, the prosecutor informed the court as follows: [Prosecutor]: [B]ecause this is a firearm offense as appropriately defined, the court must consider whether to impose a firearm registration requirement under RCW 9.41.330. This is a fairly new statute so Ican forward a copyfor Your Honor. [Court]: Thank you. [Prosecutor]: Thefactors for the court to considerin determining the actual—the firearm offender registration is not a 

### part ofthe plea agreement in this casebut it is a required—required by the legislature thatthecourt consider whether ornot toimpose it. Iwould suggest for the courtto look at the defendant's 

### criminal history as is required under (2)(a) and look atevidence of the defendant's propensity forviolence (inaudible) endanger 

### persons under 2(c). With respect to that factor, Iwould ask the court to note in the certification that the defendant acknowledged 

### that hecarried thepistol thatwasfound on his body with him during 

### the burglaries to protect himselffrom possible harms that hemay encounter.111 Miller first asserts that the State violated the plea agreement by informing 

### thecourt thatit must consider RCW 9.41.330, explaining thefactors toconsider,

1 RCW 9.41.330 reads as follows: 

### (1) On orafter July 28, 2013, whenever adefendant in this state is convicted ofa felony firearm offense orfound not guilty by reason ofinsanity ofany felony firearm offense, thecourt must consider whether toimpose a requirement that the person comply with the registration requirements ofRCW 9.41.333 and may, in its discretion, impose such a requirement. (2) In determining whetherto require the person to register, the court shall consider all relevant factors including, but notlimited to: (a) The person's criminal history; (b) Whetherthe person haspreviously been found not guilty by reason ofinsanity ofany offense in this state orelsewhere; and (c) Evidence ofthe person's propensity for violence thatwould likely endanger persons.

-4-No. 73491-1-1/5 and directing the court to the locations in the record that would inform the court's analysis. "The prosecutor, as an officer of the court, is obliged to participate in the sentencing proceedings, candidly answer[] the court's questions . . . and hold[] back no relevant information." State v. Sledge, 133 Wn.2d 828, 840, 947 P.2d 1199 (1997) (citing RCW 9.94A.460). This information necessarily includes relevant statutes, factors, and locations in the record that would assist the court in its task. Thus, the State could not agree in the first instance to withhold mention of RCW 9.41.330 from the court. Further, Miller's contention effectively asks us to add language to the plea 

### bargain indicating thatthe State would remain neutral on the issue ofregistration. The plea agreement herein mentioned only the possibility thatthe court "may" require that Miller register as afelony firearm offender. Thus, the plea 

### agreement was silent as to whether the State would advocate thatthe court should order Miller to register. We will not add terms tothe plea bargain reached 

### by the parties. See Arko, 52 Wn. App. at134 (rejecting defendant's requestfor "the court to imply an additional term to that bargain which was not expressed in the bargain itself).2

2Miller also cites to Santobello v. New York. 404U.S. 257, 92 S. Ct. 495, 30L. Ed. 2d 477 M 971V State v. Williams. 103Wn. App. 231, 11 P.3d 878 (2000), and Jerde, 93Wn. App. 774 as supporting his contention thatthe State undercut the plea agreement. These citations 

### are inapposite. Unlike here, each ofthe cases cited by Miller involved plea agreements with express terms thatthe prosecutor later undercut, either inadvertently oron its own initiative. Santobello, 404 U.S. at262; Williams, 103 Wn. App. at239; Jerde, 93Wn. App. at782. As discussed above this plea agreementwas silent on the issue ofwhether the State would take a 

### position on the issue ofregistration. Nor, for that matter, is there any evidence in the record that the State advocated that a registration requirement should be imposed.

-5-No. 73491-1-1/6 RCW 9.41.330(1) mandates that the court make a determination as to whetherto impose the felony firearm offender registration requirement. Thus, the State, honoring its duty of candor to the court, did not act improperly by bringing 

### the registration statute, the relevant factors, and the record to the court's attention. See State v. Talley, 134 Wn.2d 176, 949 P.2d 358 (1998); State v. Sledge, 133 Wn.2d 828, 947 P.2d 1199 (1997); SJate^LVanBuren, 112Wn. App. 585, 49 P.3d 966 (2002). The State's actions in informing the court of the registration statute, the 

### relevant factors, and thepertinent locations in the record where information could 

### befound were proper and did not constitute a breach oftheplea agreement.
IV Miller next contends that the sentencing court abused itsdiscretion in 

### imposing the registration requirement byfailing to articulate aconsideration of each enumerated factor. We disagree. 

### We review discretionary decisions for abuseofdiscretion. State v. Miller, 

### 159Wn. App. 911, 918, 247 P.3d 457 (2011). Asentencing court abuses its discretion only where the sentencing court's decision is "'manifestly 

### unreasonable, or exercised on untenable grounds, orfor untenable reasons.'" 

### Miller, 159 Wn. App. at918 (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 

### 26, 482 P.2d 775 (1971)). "A decision is based on untenable grounds or made for untenable reasons if it rests on facts unsupported in the record or was 

### reached by applying the wrong legal standard." State v. Rohrich, 149Wn.2d 647, 654, 71 P.3d 638 (2003) (internal quotation marks omitted).No. 73491-1-1/7
Under RCW 9.41.330, the court "must consider whether to impose" the registration requirement and, in doing so, the court "shall consider all relevant factors including, but not limited to"three suggested factors. RCW 9.41.330(1), (2). By including the "including, but notlimited to" language in the statutory provision, the legislatureafforded courts latitude in theirregistration determinations. RCW9.41.330(1); see State ex rel. Graham v. Northshore Sch. Dist. No. 417, 99 Wn.2d 232, 238, 662 P.2d 38 (1983) ("The Legislature 

### specifically used the terms 'including, but not limited to'. . . and thus did not limit the discretion afforded [to the decision maker]."). RCW 9.41.330 does notdictate 

### that a sentencing court must explicitly articulate its consideration ofeachfactor when determining whether to impose the registration requirement. Herein, the sentencing court considered relevant factors in reaching itsdetermination. The court's judgmentand sentence reads as follows: 

### This offense is a felony firearm offense (defined in RCW 9.41.010). Having considered relevant factors, including criminal history, 

### propensity for violence endangering persons, and any prior NGI findings, the Court requires thatthe defendant register as afirearm offender. 

### Moreover, at the sentencing hearing, the court specifically articulated its consideration oftwo ofthe suggested factors, detailing its concern over Miller's 

### criminal history3 and noting that there was no suggestion that Miller had been found guilty by reason of insanity.

3Atthe time ofhis plea, Miller had been convicted offourjuvenile court offenses, second 

### degree burglary in 2009, and third degree assault, criminal trespass, and harassmentin 2011.

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The court also expressed its concern over the number and type of firearms possessed by Miller and the manner in which he possessed them, stating:Iam concerned just with the presence and number ofweapons which were recovered. Not only the one on your person and according to the search there was a loaded magazine and the weapon, no rounds in the chamber butstill a loaded handgun and then three rifles, a pistol, a shotgun and a Sig Sauer. I'm concerned about those.[4] 

### The number ofguns that wereillegally possessed by the defendant is 

### plainly a relevant consideration. Moreover, the court's reference to Miller's 

### possession ofa loaded firearm while committing his burglaries, to guard against 

### the happenstance ofencountering a resident, was, indeed, acommenton Miller's 

### propensity for violence. Millerwould have had no need to possess aloadedgun unless he was open to firing it at such a resident. 

### The sentencing court properly considered relevant factors in making its determination. It did not abuse its discretion in requiring Miller to register as a felony firearm offender.
V 

### In his appellate briefing, Miller requests that no costs associated with his 

### appeal be assessed against him. The State did not respond to this request. We exercise ourdiscretion and do not impose appellate costs. RAP 14.2; Statev.

«Miller cites Statev. Rupe, 101 Wn.2d 664, 683 P.2d 571 (1984), for theproposition that the number offirearms in his possession should not bepart ofthe court's consideration in 

### determining his propensity for violence. However, Rupe's guns were lawfully possessed. Ruge, 101 Wn.2d at706-07. Miller committed crimes by possessing his numerous firearms.

-8-No. 73491-1-1/9 Sinclair, 192Wn. App. 380, 388, 367 P.3d 612 (2016), review denied, No. 92796- 1 (Wash. June 29, 2016).
Affirmed. 

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We concur:



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