Filed Washington State Court of Appeals Division Two
April 6, 2021 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 53280-8-II
Respondent,
v.
MICHAEL SAMUEL HUDSON, JR., aka UNPUBLISHED OPINION MICHEAL SAMUEL HUDSON, JR.,
Appellant.
GLASGOW, J.—Michael Samuel Hudson Jr. pleaded guilty to five counts of first degree
child rape, four counts of sexual exploitation of a minor, and one count of first degree dealing in
depictions of a minor engaged in sexually explicit conduct. He committed all of these crimes
against his daughter and son. Hudson appeals the exceptional sentence that the trial court imposed
for counts one through five for first degree child rape. Hudson also appeals a condition of
community custody that prohibits him from possessing alcohol. Hudson raises additional
arguments in a statement of additional grounds for review (SAG).
We hold that the trial court erred by relying on some statutory aggravating factors that must
be found by a jury and some nonstatutory aggravating factors when it imposed exceptional upward
sentences for counts one through five. In addition, we hold that the alcohol-related community
custody condition was proper because Hudson initially stipulated to the condition and the condition
is permitted by statute. None of the arguments in Hudson’s SAG undermines the validity of his No. 53280-8-II
guilty plea. We remand for resentencing because the exceptional sentence on counts one through
five was improper, but we affirm in all other respects.
FACTS
Between March 1, 2012 and August 5, 2017, Hudson raped his daughter who was less than
12 years old on four separate occasions, and he raped his son who was less than 12 years old on
one occasion. During this time period, Hudson photographed his daughter engaging in sexually
explicit conduct on four separate occasions. Hudson distributed the images of his daughter.
Hudson was initially charged with seven counts of first degree child rape, two counts of
first degree child molestation, five counts of first degree possession of depictions of a minor
engaged in sexually explicit conduct, and five counts of sexual exploitation of a minor. The State
expressed its intent to seek exceptional sentences on all counts because if Hudson were convicted
on all counts, the high offender score would mean certain counts would go unpunished. In
exchange for reduced charges, Hudson ultimately pleaded guilty to ten counts, which included five
counts of first degree child rape, four counts of sexual exploitation of a minor, and one count of
first degree dealing in depictions of a minor engaged in sexually explicit conduct.
In the statement of the defendant on plea of guilty, Hudson outlined the underlying facts
supporting each count. The parties stipulated that Hudson would be subject to the indeterminate
sentencing scheme for certain sex offenses under RCW 9.94A.507. Hudson acknowledged that the
trial court could impose an exceptional sentence outside the standard range.
The minimum sentence standard range for counts one through five was between 240 and
318 months. The statutory maximum term was life imprisonment. In a pretrial settlement
agreement attached to the statement on plea of guilty, the parties stipulated that for counts one
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through five, the State would argue for 288 months for each count, a minimum sentence within the
standard range, while Hudson would argue for 240 months for each count. For counts six through
ten, the parties agreed to the top of the minimum sentence standard range. The parties stipulated
that all counts should run concurrently.
The parties also attached a list of “Stipulated Conditions of Sentence and of Community
Custody” that included a condition that Hudson not possess or consume alcohol without prior
approval and that he shall not possess or consume any controlled substances without a lawful
prescription. Clerk’s Papers (CP) at 24 (capitalization omitted). Hudson stipulated to these
conditions “as well as any additional conditions suggested by the [Department of Corrections] Pre-
Sentence Investigator as being conditions of community custody and conditions of the sentence.”
CP at 22 (emphasis omitted). Hudson also stipulated that all the conditions were “‘crime-related’”
under RCW 9.94A.703(3). Id.
The pre-sentence investigation submitted by the Department recommended a prohibition
on Hudson’s possession or consumption of alcohol, marijuana, and any nonprescribed controlled
substances. For sentencing, the Department recommended confinement within the standard range.
At sentencing, on counts one through five for first degree rape of a child, the trial court
imposed an exceptional upward sentence and ordered a minimum term of 365 months for each
count, with a maximum of life. On counts six through nine, the trial court ordered a term of
confinement of 120 months. On count ten, the trial court ordered a term of 116 months. All
sentences were to be served concurrently. The trial court imposed lifetime community custody for
counts one through five. One condition of community custody prohibited Hudson from possessing
or consuming alcohol without prior approval from the Department and all treatment providers.
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The trial court adopted findings of fact and conclusions of law to justify the exceptional
sentence. The trial court included eight aggravating circumstances in its findings of fact. The first
five circumstances aligned with provisions under RCW 9.94A.535(3), while the last three were
nonstatutory. The three nonstatutory aggravators were: (1) all of the crimes “had a lasting and
severe negative impact on the mental health of the victims,” (2) “[t]he breadth of sexual abuse
toward[] the victims in [counts one through nine] was pervasive,” and (3) Hudson “continued acts
of criminal sexual behavior toward[] the victims in [counts one through nine] after [he] became
aware of a police investigation . . . about whether he had committed sexual abuse against his
children.” CP at 61. The trial court noted that it “would impose the same sentence if only one of
the grounds . . . [was] valid.” Id.
Defense counsel objected to the trial court’s findings of fact, conclusions of law, and
exceptional sentence, noting that “[n]one of the aggravating factors found by the [c]ourt were
included in the information, that my client [pleaded] guilty only to the crime and without any
aggravators and that he did not waive his right to a jury trial with regard to any of the aggravators.”
Verbatim Report of Proceedings (Mar. 18, 2019) at 69.
Hudson appeals his sentence and the alcohol-related community custody condition.
Hudson also filed a SAG.
ANALYSIS
I. SENTENCING
Hudson argues, and the State concedes, that the trial court erred when it relied on five
aggravating factors in imposing an exceptional sentence because those factors require jury findings
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under RCW 9.94A.535(3). We accept the State’s concession. Next, Hudson asserts that the trial
court cannot use nonstatutory factors to impose an exceptional sentence. We agree.
A. Statutory Background on Exceptional Sentences
RCW 9.94A.535 provides that the trial court can impose “a sentence outside the standard
sentence range for an offense if it finds . . . that there are substantial and compelling reasons
justifying an exceptional sentence. Facts supporting aggravated sentences, other than the fact of a
prior conviction, shall be determined pursuant to the provisions of RCW 9.94A.537.” In turn, RCW
9.94A.537(3) provides that “[t]he facts supporting aggravating circumstances shall be proved to a
jury beyond a reasonable doubt,” unless the defendant stipulates to the existence of the aggravating
factor or waives the jury right and allows a court to make the finding necessary to support the
factor.
In addition, the legislature distinguished between mitigating and aggravating factors. RCW
9.94A.535(1) provides that the court “may impose an exceptional sentence below the standard
range if it finds that mitigating circumstances are established by a preponderance of the evidence.”
The legislature included a list of mitigating circumstances for the court’s consideration, noting that
the list is “illustrative only” and “not intended to be exclusive reasons for exceptional sentences.”
RCW 9.94A.535(1). For aggravating circumstances, the legislature further differentiated between
those that can be found by a judge and those that must be found by a jury. There are only four
instances where a trial court judge can independently impose an aggravated exceptional sentence
without a jury, all of which rely on stipulation, the defendant’s criminal history, or the defendant’s
offender score. RCW 9.94A.535(2). RCW 9.94A.535(3) provides, “Except for circumstances
listed in subsection (2) of this section, the following circumstances are an exclusive list of factors
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that can support a sentence above the standard range,” and all of those factors must be considered
by a jury.
On appeal we review de novo the trial court’s reason to depart from the standard sentence
range. State v. Cham, 165 Wn. App. 438, 449-50, 267 P.3d 528 (2011). RCW 9.94A.535 provides
that “[i]f the sentencing court finds that an exceptional sentence outside the standard sentence
range should be imposed, the sentence is subject to review only as provided for in RCW
9.94A.585(4).” To reverse a sentence outside the standard range, this court must conclude that “the
reasons supplied by the sentencing court are not supported by the record which was before the
judge[,] that those reasons do not justify a sentence outside the standard sentence range for that
offense,” or that “the sentence imposed was clearly excessive or clearly too lenient.” RCW
9.94A.585(4). Here, Hudson argues that the reasons given are not valid bases for an exceptional
sentence absent jury findings.
B. The Trial Court Erred in Imposing an Exceptional Sentence
The trial court relied on five factors listed in RCW 9.94A.535(3), a section that expressly
requires jury findings. At Hudson’s sentencing hearing, no jury played a part in the trial court’s
findings of fact. We accept the State’s concession that reliance on these factors was improper.
For the last three aggravating factors, Hudson argues that the trial court cannot rely on
factors that do not appear in RCW 9.94A.535 to impose an exceptional sentence. Hudson is correct.
While the list of mitigating factors to be considered by a trial court in imposing an exceptional
sentence downward is merely “illustrative” and not exclusive, RCW 9.94A.535(1), the list of
aggravating factors is exclusive, RCW 9.94A.535(2), (3). There is an expressly exclusive list of
aggravating factors for a jury to determine and there is a list of only four aggravating factors that
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a trial court may impose without jury findings, none of which was the basis for Hudson’s
exceptional sentence. The plain statutory language precludes a trial court from making up
additional, nonstatutory aggravating factors.
The State relies on State v. Fowler, 145 Wn.2d 400, 38 P.3d 335 (2002), for the proposition
that a judge may use nonstatutory factors to impose an exceptional sentence above the standard
range. But Fowler sought an exceptional sentence below the standard range based on the presence
of three statutory mitigating factors. Fowler, 145 Wn.2d at 403. The trial court imposed a sentence
below the standard range, but relied upon mitigating factors that were not listed in the statute. Id.
at 404-05. While the Washington Supreme Court reversed the exceptional sentence in Fowler, the
court noted that the list of statutory mitigating factors is not exclusive. Id. at 405. Here, the trial
court imposed a sentence above the standard range, not below.
Next, the State relies on In re Postsentence Petition of Smith, 139 Wn. App. 600, 603, 161
P.3d 483 (2007), to suggest that the legislative intent of Washington’s Sentencing Reform Act of
1981 (SRA), chapter 9.94A RCW, was for judges to have broad discretion to impose exceptional
sentences tailored to individual cases. But the Smith court also imposed an exceptional sentence
of confinement below the standard range, citing a mitigating factor. Id.at 601.1
Neither Fowler nor Smith establishes that nonstatutory aggravating, rather than mitigating,
factors may be used to impose an exceptional sentence above the standard range.
We hold that the last three factors the trial court relied on were invalid because they were
outside of the exclusive list of aggravators that the legislature allowed a judge to find. Because all
1 Smith also addressed the length of the community custody term, but that is not an issue in this case. 139 Wn. App. at 602-04.
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of the eight factors the trial court relied on were invalid, Hudson’s exceptional sentence is also
invalid.
II. COMMUNITY CUSTODY CONDITION
Hudson argues that because there was no evidence that alcohol was a factor for his charged
offenses, the condition of community custody prohibiting him from possessing alcohol is improper
as it is not a “[c]rime-related prohibition” under RCW 9.94A.030(10). We disagree.
The prohibition on the possession or consumption of alcohol was one of the conditions that
Hudson agreed to comply with under the stipulated conditions of sentence and of community
custody attached to Hudson’s pretrial settlement agreement. Hudson also stipulated that all
imposed community custody conditions were crime-related under RCW 9.94A.703(3). Thus,
Hudson may not challenge the alcohol-related community custody condition on appeal because he
stipulated to the condition as part of his plea.
But even if Hudson had not stipulated to the condition, the alcohol-related community
custody condition is valid. A trial court may only impose community custody conditions
authorized by statute. State v. Kolesnik, 146 Wn. App. 790, 806, 192 P.3d 937 (2008). Appellate
courts in Washington review a trial court’s decision to impose community custody conditions for
an abuse of discretion. State v. Johnson, 12 Wn. App. 2d 201, 213, 460 P.3d 1091, review granted,
196 Wn.2d 1001 (2020). An abuse of discretion occurs when the imposition of a condition is
manifestly unreasonable. State v. Hai Minh Nguyen, 191 Wn.2d 671, 678, 425 P.3d 847 (2018).
The trial court’s discretionary community custody conditions include ordering an offender
to “[r]efrain from possessing or consuming alcohol.” RCW 9.94A.703(3)(e). A separate provision
allows a court to order a defendant to “[c]omply with any crime-related prohibitions.” RCW
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9.94A.703(3)(f). A “crime-related prohibition” is defined as “an order of a court prohibiting
conduct that directly relates to the circumstances of the crime for which the offender has been
convicted.” RCW 9.94A.030(10). The plain language of the statute does not require the restriction
on alcohol possession or consumption to be crime-related.
In State v. Jones, this court held that a trial court “may order an offender not to consume
alcohol regardless of whether alcohol contributed to the crime.” 118 Wn. App. 199, 202, 76 P.3d
258 (2003). Jones argued that the trial court erred in imposing a community custody condition
prohibiting him from consuming alcohol because there was no evidence that alcohol contributed
to his offense. Id. at 204. This court noted that because the legislature’s 1988 amendments to the
SRA separated community custody conditions involving crime-related prohibitions from those
prohibiting the offender from consuming alcohol, the legislature “manifested its intent that a trial
court be permitted to prohibit the consumption of alcohol regardless of whether alcohol had
contributed to the offense.” Id. at 206.
Under the plain language of the statute, there is no requirement that the restriction on
alcohol use and possession be crime-related. RCW 9.94A.703(3)(e). The trial court did not abuse
its discretion in imposing the challenged community custody condition.
III. STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
Hudson’s SAG raises three additional claims that he argues require withdrawal of his guilty
plea and remand for a corrected sentence. None of his claims merits relief.
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A. Plea Bargaining
1. Threats, intimidation, and coercion
Hudson claims that his guilty plea is invalid because his plea agreement was obtained via
threats, intimidation, and coercion. Hudson specifically asserts that the prosecutor threatened to
add more charges if the plea deal was not accepted and intimidated Hudson because he was being
held in the Clark County Jail. Hudson requests withdrawal of his guilty plea.
A prosecutor’s discretion in plea bargaining is not “‘unfettered,’” and prosecutors may not
exercise their discretion in a manner that violates due process. State v. Moen, 150 Wn.2d 221, 227,
76 P.3d 721 (2003) (quoting Wayte v. United States, 470 U.S. 598, 608, 105 S. Ct. 1524, 84 L. Ed.
2d 547 (1985)). But otherwise, prosecutors are vested with broad discretion when determining
whether to charge a crime or enter into a plea bargain. Moen, 150 Wn.2d at 227.
Hudson does not cite to any case that concludes that either a prosecutor’s threat to bring
more charges or the general jail environment coerces a defendant to such a degree that due process
is violated. We hold that this claim is meritless because the prosecutor was within their discretion
to indicate that Hudson could face additional charges should he decline the plea deal. Moreover,
Hudson noted in his signed statement on plea of guilty that he made the plea freely and voluntarily,
and that no one threatened him in order for him to plead guilty. When the trial court asked at
Hudson’s plea hearing whether he made the plea freely and voluntarily, Hudson responded that he
did and that no one had threatened to harm him. Hudson may not withdraw his guilty plea on this
basis.
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2. Ineffective assistance of counsel
Next, Hudson argues that his counsel provided ineffective assistance in facilitating his
signing of the plea agreement despite the coercive prosecutor. Hudson claims that, but for his
counsel’s errors, he would not have signed the plea agreement, rendering a different outcome for
his case.
The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington Constitution guarantee effective assistance of counsel. See Strickland v. Washington,
466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Grier, 171 Wn.2d 17, 32,
246 P.3d 1260 (2011). Ineffective assistance of counsel is a two-pronged inquiry. Grier, 171
Wn.2d at 32. To prevail, Hudson must show that his counsel’s performance was deficient and that
counsel’s deficient performance prejudiced him. Id. at 32-33. A failure to prove either prong ends
our inquiry. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
Hudson has not demonstrated that his counsel’s performance was deficient. Hudson
initially faced 19 counts, including 7 counts of first degree child rape. The plea reduced the number
of counts to 10. Defense counsel’s role in Hudson’s plea agreement, whatever it may have been,
can be viewed as a legitimate strategy to get Hudson fewer charges and a reduced sentence.
B. Same Criminal Conduct
Hudson argues that counts one through four and ten amount to the same criminal conduct.
From his understanding, the above counts stem from one incident when he forced his son and
daughter to have sexual intercourse in order to get permission to go swimming at the local pool.
In addition, Hudson argues that counts six through nine represent the same criminal conduct.
Hudson raises these arguments for the first time on appeal.
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Under RCW 9.94A.589(1)(a), “if the court enters a finding that some or all of the current
offenses encompass the same criminal conduct[,] then those current offenses shall be counted as
one crime.” “‘Same criminal conduct,’ as used in this subsection, means two or more crimes that
require the same criminal intent, are committed at the same time and place, and involve the same
victim.” RCW 9.94A.589(1)(a). The defendant bears the burden to establish each element to
determine whether the offenses stemmed from the same criminal conduct. State v. Hatt, 11 Wn.
App. 2d 113, 142, 452 P.3d 577 (2019), review denied, 195 Wn.2d 1011, cert. denied, 141 S. Ct.
345 (2020).
We hold that Hudson’s same criminal conduct claim is meritless. Counts one through four
explicitly detail first degree rape of a child, each on an occasion separate and distinct from the
other counts, with the date range for the sexual abuse occurring between March 1, 2012 and August
5, 2017. In Hudson’s signed statement on plea of guilty, he indicated that counts one through four
represented “separate and distinct” offenses committed against his daughter. CP at 16. Similarly,
Hudson indicated in his statement that counts six through nine represented “separate and distinct”
offenses committed against his daughter. CP at 17.
At Hudson’s plea hearing, the trial court questioned whether counts one through five
involved separate and distinct occasions, to which Hudson responded that they did. At the same
hearing, Hudson admitted that counts six through nine involved four separate occasions where
Hudson permitted his daughter to engage in sexually explicit conduct that would be photographed.
While Hudson may have possessed the same criminal intent for the counts committed against his
daughter, he admitted that the counts he pleaded guilty to were based on separate and distinct
occasions. Thus, he has failed to show any of his convictions involve the same criminal conduct.
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CONCLUSION
We remand for resentencing because the exceptional sentence on counts one through five
was improper, but we affirm in all other respects.
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.
Glasgow, J. We concur:
Sutton, A.C.J.
Maxa, J.