Fernandez v. State, 04-213.
| Decision Date | 12 January 2006 |
| Docket Number | No. 04-214.,No. 04-213.,04-213.,04-214. |
| Parties | Anna Marie FERNANDEZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). Anna Marie Fernandez, Appellant (Defendant), v. The State of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Representing Appellant: Kenneth M. Koski, State Public Defender; and Donna D. Domonkos, Appellate Counsel.
Representing Appellee: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric Johnson, Director, Prosecution Assistance Program; Jenny L. Craig, Student Director; Eric Heimann, Intern; and Timothy Justin Forwood, Intern.
Before HILL, C.J., and GOLDEN, KITE, and VOIGT, JJ., and DONNELL, D.J.
[¶ 1] Anna Fernandez pled guilty to three counts of felony welfare fraud and four counts of felony cocaine-related charges, which cases were consolidated for sentencing before the district court. Fernandez now challenges these judgments and sentences, claiming that the State violated plea agreements in both cases during the sentencing hearing. We affirm.
[¶ 2] On January 16, 2003, an Information was filed in circuit court charging Fernandez with three counts of fraudulently obtaining welfare benefits, in violation of Wyo. Stat. Ann. § 42-2-112(h) (Michie 1997), and two counts of fraudulently obtaining food stamps, in violation of Wyo. Stat. Ann. § 42-2-112(a) ().
[¶ 3] Fernandez was subsequently charged with four counts unrelated to the welfare fraud case: two counts of delivery of cocaine, in violation of Wyo. Stat. Ann. § 35-7-1031(a)(i) (LexisNexis 2001); one count of possession with intent to deliver cocaine, in violation of Wyo. Stat. Ann. § 35-7-1031(a)(i); and one count of conspiracy to deliver cocaine, in violation of Wyo. Stat. Ann. § 35-7-1031(a)(i) and Wyo. Stat. Ann. § 35-7-1042 (LexisNexis 2001) (Case No. 04-213, "the cocaine case").
[¶ 4] The cases proceeded separately through the court system until sentencing. On September 18, 2003, an agreement was reached wherein Fernandez pled no contest to three of the five counts in the welfare fraud case and the State agreed to recommend probation at sentencing. The remaining two counts were dismissed by the State. Sentencing on the welfare fraud case was delayed pending the outcome of the cocaine case.
[¶ 5] Fernandez pled guilty to all charges in the cocaine case on April 12, 2004. The welfare fraud case was consolidated with the cocaine case and a sentencing hearing was held on July 12, 2004. At that hearing, the district court sentenced Fernandez to imprisonment for forty-two months to eight years on each count in the cocaine case, the sentences to run concurrently. The district court further imposed a three- to five-year term of imprisonment in the welfare fraud case, but suspended that sentence and placed Fernandez on probation for five years. The sentences in the two cases were to run consecutively, with the cocaine sentence to be served prior to the welfare fraud sentence. On July 19, 2004, the district court issued written orders confirming the oral sentences. It is from those judgments and sentences that Fernandez now appeals.
[¶ 6] Our standard for reviewing claimed breaches of plea agreements is well known:
Herrera v. State, 2003 WY 25, ¶ 8, 64 P.3d 724, ¶ 8 (Wyo.2003). A plea agreement is a contract between the defendant and the State and thus general principles of contract law apply to the agreement.
Rutti v. State, 2004 WY 133, ¶ 42, 100 P.3d 394, 410 (Wyo.2004), cert. denied, ___ U.S. ___, 125 S.Ct. 1990, 161 L.Ed.2d 858 (2005).
Furthermore, we have said that the prosecutor may not play fast and loose with the established terms of a plea agreement and must explicitly stand by those terms agreed upon. Herrera [v. State, 2003 WY 25] at ¶ 18, [64 P.3d 724, 729 (Wyo.2003)]. If the prosecutor's performance of the terms of a plea agreement is not possible, a withdrawal of the plea is the correct remedy. The prosecutor's remedy was not to violate or mischaracterize the agreement but rather move to withdraw the plea agreement if she did not wish to be bound to its terms. Neither the principles of fairness nor the principles of contract law allow the State to retain the benefit of the agreement while avoiding its obligation. See State v. Rardon, 2002 MT 345, ¶ 18, 313 Mont. 321, 61 P.3d 132, ¶ 18 (Mt.2002). Cardenas v. Meacham, 545 P.2d 632, 638 (Wyo.1976) ()
Ford v. State, 2003 WY 65, ¶ 18, 69 P.3d 407, 412 (Wyo.2003).
[¶ 7] Fernandez claims that the State breached the plea agreement in the welfare fraud case when it argued at the consolidated sentencing hearing for a term of incarceration in the cocaine case. When reviewing breaches of plea agreements, we apply a two-part test. We "(1) examine the nature of the promise; and (2) evaluate the promise in light of the defendant's reasonable understanding of the promise at the time the plea was entered." Schade v. State, 2002 WY 133, ¶ 5, 53 P.3d 551, 554 (Wyo.2002). Because we have not been presented with plea agreements reduced to writing, "we must look to the recitation of the plea agreement given at the change of plea hearing to determine the terms of the agreement." Ford, 2003 WY 65, ¶ 12, 69 P.3d at 411.
[¶ 8] The express terms of the plea agreement in the welfare fraud case are not at issue here. At the change of plea hearing, counsel for Fernandez detailed both the nature of the promise and Fernandez's understanding of the plea agreement:
[Defense counsel]: . . . In exchange for Ms. Fernandez's pleading guilty to three of the five counts charged in the information, the district attorney's office has agreed to recommend a three-to five-year suspended sentence with five years of probation with a suggestion that the Court end probation earlier when restitution is paid in full prior to the end of the five years. The restitution amount would be stipulated to [be] $6,500.
. . . .
There are other charges that are pending before another judge and that this does not have anything to do with that.
An additional agreement is that the suggestion of a three-to five-year suspended sentence as to all counts would be concurrent both as to the suspended portion and as to the period of probation and that's as to this case only.
I believe that's the total of the plea agreement.
[Fernandez]: Yes, it is, Your Honor.
[¶ 9] The issue here is whether the State complied with the undisputed terms of this agreement. At the consolidated sentencing hearing for both the welfare fraud and the cocaine cases, the State characterized the agreement as follows:
[Prosecutor]: . . . [T]he agreement as outlined was to recommend probation on this offense to give her an opportunity to pay the restitution that would be due and owing. The agreement was entered into and brought before this Court with the understanding that the drug cases were still outstanding and would most likely result in a Women's Center incarceration for the time while the welfare fraud was specifically to be addressed on the record to that case only —
[¶ 10] Defense counsel objected to this statement and later explained:
[Defense Counsel]: My objection, Your Honor, I just want to make it clear before I start. My objection to [the prosecutor's] comments, I believe her comments regarding the welfare fraud case, those were to be suspended based on an understanding that she was to get a sentence at the penitentiary is not true and is not reflected in the record, but I have not read it today. My understanding is that she may have been contemplating, but that does not mean that's part of the agreement. And my guess is that is what she was contemplating, but I believe those comments are inappropriate.
[¶ 11] Fernandez claims that, by stating that "the drug cases were still outstanding and would most likely result in a Women's Center incarceration," the State breached the plea agreement reached in the welfare fraud case. She contends that the State was representing to the district court that, as part of the plea agreement in the welfare fraud case, Fernandez had agreed to accept a term of incarceration in the cocaine case. After reviewing the transcripts from sentencing and the record as a whole, we are satisfied that the welfare fraud plea agreement was not breached.
[¶ 12] The prosecutor's statement did not violate the plea agreement. The State clearly represented to the district court that the welfare fraud plea agreement "was specifically to be addressed on the record to that case only." Nonetheless, Fernandez claims that the State impermissibly argued that incarceration was "contemplated" in the cocaine case and that Fernandez had agreed to such incarceration. At sentencing, the State and Fernandez engaged in a lengthy argument about what was and was not "contemplated" in the welfare fraud plea agreement and whether Fernandez had agreed to incarceration as part of that agreement. Throughout this discussion, however, the State was careful to clarify that the plea agreement was unrelated to any sentencing recommendation in the cocaine case:
[Prosecutor]: . . . I want the record to be very clear that at the change of...
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