Ford v. State, 01-226.

• Decision Date: 23 May 2003
• Docket Number: No. 01-226.,01-226.
• Citation: 69 P.3d 407,2003 WY 65
• Parties: Johnny Lee FORD, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

69 P.3d 407

2003 WY 65

Johnny Lee FORD, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 01-226.

Supreme Court of Wyoming.

May 23, 2003.

Kenneth M. Koski, State Public Defender; and Donna D. Domonkos, Appellate Counsel. Argument by Ms. Domonkos, Representing Appellant.

Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Theodore E. Lauer, Faculty Director, Prosecution Assistance Program; and M. Rick Erickson, Student Intern. Argument by Mr. Erickson, Representing Appellee.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

LEHMAN, Justice.

[¶ 1] Johnny Lee Ford (Ford) appeals the judgment and sentence entered against him upon conviction of first-degree sexual assault. Ford pled guilty to one count of first-degree sexual assault pursuant to a plea agreement. Ford claims that the prosecutor breached the plea agreement and he therefore should have been allowed to withdraw his guilty plea. We agree and reverse and remand.

ISSUES

[¶ 2] Ford presents the following two issues:

I. Whether Mr. Ford should be allowed to withdraw his guilty plea?

II. Whether the sentence reflected in Mr. Ford's written order of sentence is illegal as it is inconsistent with the oral sentence given in open court and was not approved by defense counsel before being signed by the court?

The State phrases the issues in the following manner:

I. Did the State breach its plea agreement with appellant, and did the district court abuse its discretion in denying appellant's request to withdraw his plea of guilty?

II. Was there a discrepancy between the district court's oral pronouncement of appellant's sentence and the written judgment and sentence entered by the court?

FACTS

[¶ 3] Ford was charged with first-degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-302(a)(i) (LexisNexis 2001). Ford initially pled not guilty to this charge and was released on signature bond. A short time later, the State filed a petition to revoke Ford's bond on the ground that he had violated his bond conditions when he was arrested for battery.

[¶ 4] On March 8, 2001, Ford appeared in district court and entered a guilty plea to the first-degree sexual assault charge. The guilty plea was made pursuant to a plea agreement under which the State agreed to recommend "a 5-to-10-year sentence in prison suspended with placement at either ISP or in the Adult Community Corrections program with a requirement of sex-offender treatment and all standard conditions of probation."

[¶ 5] Following Ford's guilty plea, he was referred to Community Alternatives of Casper, to the Intensive Supervision Program, and to Frontier Correctional Systems. All three programs denied Ford admittance, having determined that he would not be suitable for placement. Ford was sentenced on August 24, 2001. At the sentencing hearing the following exchange took place:

[Prosecutor]: Well, Your Honor, as the record indicates, this is somewhat of an unusual situation because the original plea agreement was for a term in the Wyoming State Penitentiary of not less than 5 nor more than 10 years with a referral to the ISP or CAC programs.

Well, all of those referrals were made, and [Ford], unfortunately, was rejected by all of them, partly because, as you can also tell by the record, [Ford] was originally released on a bond, but then was re-incarcerated after having committed and pled to a battery domestic violence situation, and then we entered into the plea agreement. He agreed to stay in jail pending sentencing on the first-degree sexual assault.

[Defense Counsel]: Your honor, I hate to interrupt again.

It would be our position—I would object to any further comments from the district attorney's office. It's our position that they have made a recommendation as to sentencing, and that there really is no further appropriate comment in terms of why that—why he wasn't—unless there's evidence as to that, which I don't believe there is, I don't believe it's appropriate for them to comment on why he was not accepted at ISP or CAC.

. . .

[Prosecutor]: I was simply reciting what the substance of the record is thus far, Your Honor.

I believe the reason [Defense Counsel] is objecting, although I've never had anybody object to making sentencing—my making sentencing arguments when there's no agreement to stand silent at sentencing. That's never been contemplated.

In any event, what I was about to say was [Ford] remained incarcerated, and has demonstrated through his behavior that's documented at the jail that he is a bad risk to go to an ISP or CAC program.

He's had numerous write-ups for things such as property destruction at the jail. He's made threats to other inmates. He's engaged in odd, unexplained behavior that has put him under maximum security and—

[Defense Counsel]: We would have a continuing objection.

[Prosecutor]:—and put in jail, that he needs to be monitored closely. Those are the kind of things that, as indicated, make him a bad risk for anything other than the term as stipulated of 5 to 10 at the penitentiary.

[¶ 6] Following the above discussion, Ford's mother addressed the court. Defense counsel then indicated that Ford believed that the district attorney had violated the terms of the plea agreement and he wished to withdraw his plea. The court stated that it did not believe the plea agreement was violated and denied the motion. The trial court further indicated that it believed that the prosecutor made the recommendation that she agreed to make, but that it was an inappropriate recommendation that the court would not accept.

[¶ 7] Ford was then sentenced to a term of six to ten years in the penitentiary. During the oral pronouncement of the judgment and sentence the trial court stated that Ford is "entitled to credit for time served against that minimum and maximum time." The written judgment and sentence provided that Ford "shall be given credit against the minimum and maximum sentence for time served in the Laramie County Detention Facility awaiting disposition of this matter which equals ten (10) days (October 24, 2000 to November 2, 2000), [Ford] shall not receive credit for time served for his bond revocation (January 31, 2001 to August 24, 2001)." This appeal followed.

STANDARD OF REVIEW

[¶ 8] "When a plea of guilty rests to any significant degree on a promise or agreement by the State, that promise must be fulfilled. Whether the prosecutor has violated the plea agreement is a question that is reviewed de novo." Herrera v. State, 2003 WY 25, ¶ 8, 64 P.3d 724, ¶ 8 (Wyo.2003) (citing Clingman v. State, 2001 WY 46, ¶ 4, 23 P.3d 27, ¶ 4 (Wyo.2001); Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971); Clouse v. State, 809 P.2d 791, 795 (Wyo.1991); and United States v. Robertson, 45 F.3d 1423, 1442 (10th Cir.1995)). See also Browning v. State, 2001 WY 93, ¶ 32, 32 P.3d 1061,

¶ 32 (Wyo.2001). W.R.Cr.P. 32(d) governs the withdrawal of a guilty plea prior to sentencing. "If a motion for withdrawal of a plea of guilty ... is made before sentence is imposed, the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason." See Herrera at ¶ 9.

[¶ 9] Whether the trial court properly denied a motion for withdrawal of a guilty plea is reviewed under an abuse of discretion standard. In making this determination we must "determine whether the trial court could reasonably conclude as it did and whether any facet of its ruling was arbitrary or capricious." Herrera at ¶ 10 (citing Burton v. State, 2002 WY 71, ¶ 44, 46 P.3d 309, ¶ 44 (Wyo.2002); Cook v. State, 7 P.3d 53, 58-59 (Wyo.2000); Vaughn v. State, 962 P.2d 149, 152 (Wyo.1998)).

DISCUSSION

Withdrawal of Plea

[¶ 10] A plea agreement is a contract between the State and a defendant. As such, both parties must adhere to the terms of the contract, and each party is entitled to the benefit of the bargain entered. The type of plea agreement in this case is that described by W.R.Cr.P. 11(e)(1)(B), "the attorney for the state will... make a recommendation, or agree not to oppose the defendant's request, for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the court." In this type of plea agreement the defendant provides consideration by pleading guilty. In return, the State supplies consideration by making the promised recommendation or by not opposing the defendant's request for a particular sentence.

[¶ 11] When determining whether a breach of the plea agreement has occurred 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, ¶ 5 (Wyo.2002) (quoting Browning, at ¶ 32). Our analysis is guided by the principles of general contract law. Schade, at ¶ 5. Just as in contract law, a party is not released from its obligation unless the other party has materially or substantially breached that agreement. Browning, at ¶ 32. "A material or substantial breach is one that goes to the whole consideration of the agreement." Schade, at ¶ 5 (quoting Browning at ¶ 32).

[¶ 12] Because the plea agreement in this case was not reduced to a specific written document, we must look to the recitation of the plea agreement given at the change of plea hearing to determine the terms of the agreement. In doing so, we see that the terms of the agreement provided that in exchange for a guilty plea, the State would recommend "a 5-to-10-year sentence in prison suspended with placement at either ISP or in the Adult Community Corrections program with a requirement of sex-offender treatment and all standard conditions of probation."

[¶ 13] We begin our analysis with the nature of the promise. At the time the plea was entered, the State agreed to recommend not...