IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 83753-2-I
Respondent, DIVISION ONE v.
MARSHALL SIDELL CREW, UNPUBLISHED OPINION
Appellant.
SMITH, C.J. — Marshall Crew pleaded guilty to several counts of child
molestation of his daughter, A.C. Crew raises two issues on appeal. He first
contends that the trial court considered facts not admitted in his plea agreement
when it denied his request for a special sex offender sentencing alternative, in
violation of the real facts doctrine. He also contends that the court imposed a
condition of community custody—requiring consent to home visits by the
Department of Corrections—that violates his rights under article 1, section 7 of
the Washington Constitution and the Fourth Amendment to the U.S. Constitution.
We disagree with both contentions and affirm.
FACTS
A.C. passed a note to her friend at school that said her father, Marshall
Crew, had been sexually abusing her. She was 12 years old at the time. In
interviews with a Snohomish County Sherriff’s Office deputy and a child forensic
interviewer, she elaborated that the abuse had happened regularly for several
years. No. 83758-2-I/2
Crew was charged with two counts of first degree child molestation and
one count of second degree child molestation, all with domestic violence
enhancements. He pleaded guilty to all three. He asked to be sentenced to a
Special Sex Offender Sentencing Alternative (SSOSA).1
The trial court denied Crew’s request for a SSOSA. It sentenced him to
the top of the standard range: 130 months on each of the first two counts and 75
months on the third. And it sentenced him to a lifetime term of community
custody under the supervision of the Department of Corrections (DOC). The
court also imposed a number of community custody conditions.
Crew appeals.
ANALYSIS
Real Facts Doctrine
Crew’s argument under the real facts doctrine centers on the trial court’s
pronouncement at sentencing that Crew “decided to act in the way [he] did on
numerous occasions, and [he] molested [his] own daughter on numerous
occasions.” This, he asserts, shows that the trial court relied on acts other than
those Crew admitted to in his plea agreement. We conclude that the court did
not violate the real facts doctrine.
One of the factors the court must weigh when deciding whether to grant a
SSOSA is “the extent and circumstances of the offense.” RCW 9.94A.670(4).
1 A SSOSA imposes a term of confinement that is, at least in part,
suspended to allow for community-based treatment. RCW 9.94A.670(5)-(8). If the SSOSA recipient fails to follow program and community custody requirements, the trial court may revoke the suspended sentence, reinstating service of the suspended term of confinement. RCW 9.94A.670(9)-(11).
2 No. 83758-2-I/3
This language does not mean the court may consider any facts presented to it,
however. The scope of the court’s consideration is bounded by the “real facts”
doctrine, which originates in RCW 9.94A.530. State v. Brown, 193 Wn.2d 280,
291 n. 4, 440 P.3d 962 (2019). When a trial court imposes a sentence other than
one that exceeds 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.[2]
RCW 9.94A.530(2).
We review a trial court’s SSOSA denial for abuse of discretion. State v.
Sims, 171 Wn.2d 436, 445, 256 P.3d 285 (2011). One of the ways a court
abuses its discretion is by applying an incorrect legal standard. State v. Pervez,
15 Wn. App. 2d 265, 272, 478 P.3d 103 (2020). Crew does not challenge the
court’s weighing of the several factors relevant to granting a SSOSA. See
RCW 9.94A.670(4). He asserts only that the trial court committed an error of law
constituting an abuse of discretion because it considered facts outside the scope
of the real facts doctrine.
However, the court did not consider improper facts. Crew was charged
with and pleaded guilty to three counts of child molestation. The first two counts
concerned individual acts of abuse on nonspecific days between October 8, 2016
and October 7, 2020; the third concerned an act of abuse on May 2, 2021.
Crew’s plea agreement included statements admitting to the essential elements
2 RCW 9.94A.537 concerns sentences above the standard range, and is
therefore not applicable here.
3 No. 83758-2-I/4
of each of these charges. The agreement also allows “[f]acts to be considered
for imposing sentence [] as set forth in the affidavit(s) of probable cause
previously filed in this Cause Number.”
The trial court was therefore permitted to look at facts in the affidavit of
probable cause when considering “the extent and circumstances of the offense.”
The affidavit of probable cause included information from A.C. that Crew had
been abusing her for “about four years,” beginning when she was eight years old
and spanning their residence at two properties. Her initial report asserted that
the abuse occurred “every night.” As described in the affidavit, Crew admitted to
a frequency of abuse of “once or twice a month” for about three years.
The trial court’s statement about “numerous” instances of abuse may refer
only to the three occurrences Crew admitted in his plea deal. It could also be
interpreted to touch on the affidavit’s mention of a more regular pattern of
behavior. Either way, it encompasses the “extent and circumstances” of the
offenses to which Crew pleaded; it references nothing beyond statements from
the affidavit, properly incorporated for consideration at sentencing by the terms of
the plea. We therefore do not agree with Crew that the trial court considered
facts barred by the real facts doctrine. Finding no error, we conclude that the trial
court acted within its discretion.
Condition of Community Custody
Crew next challenges the 12th community custody condition of
Appendix 4.2 to his judgment and sentence:
4 No. 83758-2-I/5
You must consent to DOC home visits to monitor your compliance with supervision. Home visits include access for purposes of visual inspection of all areas of the residence in which you live or have exclusive or joint control and/or access.
He contends that this condition violates his rights to be free from unwarranted
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 83753-2-I
Respondent, DIVISION ONE v.
MARSHALL SIDELL CREW, UNPUBLISHED OPINION
Appellant.
SMITH, C.J. — Marshall Crew pleaded guilty to several counts of child
molestation of his daughter, A.C. Crew raises two issues on appeal. He first
contends that the trial court considered facts not admitted in his plea agreement
when it denied his request for a special sex offender sentencing alternative, in
violation of the real facts doctrine. He also contends that the court imposed a
condition of community custody—requiring consent to home visits by the
Department of Corrections—that violates his rights under article 1, section 7 of
the Washington Constitution and the Fourth Amendment to the U.S. Constitution.
We disagree with both contentions and affirm.
FACTS
A.C. passed a note to her friend at school that said her father, Marshall
Crew, had been sexually abusing her. She was 12 years old at the time. In
interviews with a Snohomish County Sherriff’s Office deputy and a child forensic
interviewer, she elaborated that the abuse had happened regularly for several
years. No. 83758-2-I/2
Crew was charged with two counts of first degree child molestation and
one count of second degree child molestation, all with domestic violence
enhancements. He pleaded guilty to all three. He asked to be sentenced to a
Special Sex Offender Sentencing Alternative (SSOSA).1
The trial court denied Crew’s request for a SSOSA. It sentenced him to
the top of the standard range: 130 months on each of the first two counts and 75
months on the third. And it sentenced him to a lifetime term of community
custody under the supervision of the Department of Corrections (DOC). The
court also imposed a number of community custody conditions.
Crew appeals.
ANALYSIS
Real Facts Doctrine
Crew’s argument under the real facts doctrine centers on the trial court’s
pronouncement at sentencing that Crew “decided to act in the way [he] did on
numerous occasions, and [he] molested [his] own daughter on numerous
occasions.” This, he asserts, shows that the trial court relied on acts other than
those Crew admitted to in his plea agreement. We conclude that the court did
not violate the real facts doctrine.
One of the factors the court must weigh when deciding whether to grant a
SSOSA is “the extent and circumstances of the offense.” RCW 9.94A.670(4).
1 A SSOSA imposes a term of confinement that is, at least in part,
suspended to allow for community-based treatment. RCW 9.94A.670(5)-(8). If the SSOSA recipient fails to follow program and community custody requirements, the trial court may revoke the suspended sentence, reinstating service of the suspended term of confinement. RCW 9.94A.670(9)-(11).
2 No. 83758-2-I/3
This language does not mean the court may consider any facts presented to it,
however. The scope of the court’s consideration is bounded by the “real facts”
doctrine, which originates in RCW 9.94A.530. State v. Brown, 193 Wn.2d 280,
291 n. 4, 440 P.3d 962 (2019). When a trial court imposes a sentence other than
one that exceeds 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.[2]
RCW 9.94A.530(2).
We review a trial court’s SSOSA denial for abuse of discretion. State v.
Sims, 171 Wn.2d 436, 445, 256 P.3d 285 (2011). One of the ways a court
abuses its discretion is by applying an incorrect legal standard. State v. Pervez,
15 Wn. App. 2d 265, 272, 478 P.3d 103 (2020). Crew does not challenge the
court’s weighing of the several factors relevant to granting a SSOSA. See
RCW 9.94A.670(4). He asserts only that the trial court committed an error of law
constituting an abuse of discretion because it considered facts outside the scope
of the real facts doctrine.
However, the court did not consider improper facts. Crew was charged
with and pleaded guilty to three counts of child molestation. The first two counts
concerned individual acts of abuse on nonspecific days between October 8, 2016
and October 7, 2020; the third concerned an act of abuse on May 2, 2021.
Crew’s plea agreement included statements admitting to the essential elements
2 RCW 9.94A.537 concerns sentences above the standard range, and is
therefore not applicable here.
3 No. 83758-2-I/4
of each of these charges. The agreement also allows “[f]acts to be considered
for imposing sentence [] as set forth in the affidavit(s) of probable cause
previously filed in this Cause Number.”
The trial court was therefore permitted to look at facts in the affidavit of
probable cause when considering “the extent and circumstances of the offense.”
The affidavit of probable cause included information from A.C. that Crew had
been abusing her for “about four years,” beginning when she was eight years old
and spanning their residence at two properties. Her initial report asserted that
the abuse occurred “every night.” As described in the affidavit, Crew admitted to
a frequency of abuse of “once or twice a month” for about three years.
The trial court’s statement about “numerous” instances of abuse may refer
only to the three occurrences Crew admitted in his plea deal. It could also be
interpreted to touch on the affidavit’s mention of a more regular pattern of
behavior. Either way, it encompasses the “extent and circumstances” of the
offenses to which Crew pleaded; it references nothing beyond statements from
the affidavit, properly incorporated for consideration at sentencing by the terms of
the plea. We therefore do not agree with Crew that the trial court considered
facts barred by the real facts doctrine. Finding no error, we conclude that the trial
court acted within its discretion.
Condition of Community Custody
Crew next challenges the 12th community custody condition of
Appendix 4.2 to his judgment and sentence:
4 No. 83758-2-I/5
You must consent to DOC home visits to monitor your compliance with supervision. Home visits include access for purposes of visual inspection of all areas of the residence in which you live or have exclusive or joint control and/or access.
He contends that this condition violates his rights to be free from unwarranted
government intrusion under the Washington3 and United States4 constitutions.
But Crew’s challenge is not ripe for review.
The Washington State Supreme Court addressed a pre-enforcement
challenge under the same constitutional rights to this exact community custody
condition in State v. Cates, 183 Wn.2d 531, 533-37, 354 P.3d 832 (2015). It
stated that a community custody condition is ripe for review on its merits “ ‘if the
issues raised are primarily legal, do not require further factual development, and
the challenged action is final.’ ” Cates, 183 Wn.2d at 534 (internal quotation
marks omitted) (quoting State v. Sanchez Valencia, 169 Wn.2d 782, 786-91, 239
P.3d 1059 (2010)). It held that this condition was not ripe for review, though,
because whether a search potentially authorized under the condition violates
constitutional protections “ ‘depends on the particular circumstances of the
attempted enforcement.’ ” Cates, 183 Wn.2d at 535 (quoting Sanchez Valencia,
168 Wn.2d at 789).
3 Article 1, section 7 of the Washington Constitution mandates: “No person
shall be disturbed in his private affairs, or his home invaded, without authority of law.” 4 The Fourth Amendment to the United State Constitution mandates: “The
right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
5 No. 83758-2-I/6
Crew’s attempts to distinguish Cates are unavailing; we are bound by this
Supreme Court precedent, which directly addresses the ripeness of the same
constitutional challenge to the same community custody provision.
We affirm.
WE CONCUR: