In re Lord

• Decision Date: 29 July 2004
• Docket Number: No. 73853-0.,73853-0.
• Citation: 152 Wash.2d 182,152 Wn.2d 182,94 P.3d 952
• Court: Washington Supreme Court
• Parties: In the Matter of the Personal Restraint Petition Of Stephen J. LORD, Petitioner.

94 P.3d 952

152 Wn.2d 182

152 Wash.2d 182

In the Matter of the Personal Restraint Petition Of Stephen J. LORD, Petitioner.

No. 73853-0.

Supreme Court of Washington, En Banc.

Argued March 23, 2004.

Decided July 29, 2004.

David Zuckerman, Seattle, for Petitioner.

Gerald Horne, Pierce County Prosecutor, Kathleen Proctor, Deputy, Alicia Marie Burton, Deputy, Tacoma, for Respondent.

BRIDGE, J.

Stephen J. Lord petitioned for review of an order of the chief judge of Division Two of the Court of Appeals dismissing his timely personal restraint petition (PRP). He principally asserts that the prosecutor breached the plea agreement when she failed to recommend that he receive a partially suspended sentence conditioned on a Special Sex Offender Sentencing Alternative (SSOSA). We granted review and now hold that the prosecutor breached the plea agreement by refusing to recommend to the sentencing court that Lord receive a partially suspended sentence conditioned on a SSOSA.

STATEMENT OF FACTS

On February 2, 2001, the State charged Lord with two counts of sexual exploitation of a minor and four counts of first degree child molestation for acts he committed against his then four- and six-year-old granddaughters. In exchange for Lord's guilty plea, the prosecutor agreed to amend Lord's original information and charge him with three counts of first degree child molestation in order to make him eligible for a SSOSA. The prosecutor also appears to have agreed that Lord receive 132 months in custody with 126 months suspended on the condition that Lord receives a SSOSA.¹

On May 31, 2001, the trial court considered whether to accept Lord's guilty plea. Prior to accepting his plea, the court engaged in the following colloquy:

THE Court: Right now the guilty plea form indicates that the prosecutor would be making a recommendation to me at sentencing if you were eligible for a SSOSA, or a Special Sex Offender Sentencing Alternative, if you are eligible for such an alternative. It doesn't mean the Court will adopt that, and I want to make certain that you understand they are just recommendations. Despite the evaluation, whether you are eligible or not, the Court may determine that you were not suitable for a SSOSA sentencing. Do you understand that?

THE Defendant: Yes.

State's Resp. to PRP, App. F at 6. The trial court then accepted Lord's guilty plea and scheduled his sentencing on July 26, 2001, so that the State could conduct a presentence investigation (PSI) and Lord could obtain a SSOSA evaluation.

On July 26, 2001, the court continued Lord's sentencing until September 28, 2001, to permit Lord an additional SSOSA evaluation since Dr. Mark Bennett Whitehill, who performed Lord's first SSOSA evaluation, had found that Lord was not amenable to treatment. But Lord's second evaluator, Dr. Michael Comte, affirmed Dr. Whitehill's conclusion. Lord then independently sought a third SSOSA evaluation from another evaluator, Mr. Lang Taylor, without informing the trial court or the prosecutor. Mr. Taylor found that Lord was amenable to treatment.

At Lord's September 28, 2001 sentencing hearing, the prosecutor revoked her recommendation that Lord receive a SSOSA. The prosecutor also presented Lord's first SSOSA evaluator, Dr. Whitehill, who testified that, in his opinion, Lord was not amenable for a SSOSA because of various personal, occupational, and psychological reasons.

Lord protested the prosecutor's revocation of her recommendation. First, he contended that the court and the prosecutor should disregard the findings of the first two evaluators because the third evaluator he hired found that he was amenable to a SSOSA. He also stated:

Part of the reason that I came in and made the plea versus going to court was that the prosecutor ... had stood on the side of recommending a SSOSA, and it appears today that she has reversed her opinion on that. She did it two times, once in writing on the offer for the agreement, and the second time on the plea on two separate dates. That is what entered into my decision to come in and do the plea, because the prosecutor was going to endorse it, and here today what I am hearing is that she opposes it, and she is being allowed to reverse her position as far as, you know, recommending prison and not recommending treatment for me.

Id., App. H at 35. The prosecutor responded:

Your honor, the agreement between the parties was that the State would recommend SSOSA if the Defendant was found amenable. When we were here in court on the 26th of July it was indicated to the Court and to the State that the Defendant had an evaluation with Dr. Whitehill and that he was found not amenable to treatment.

Id., App. H at 36. The court rejected Lord's argument stating, "I told you that when I took your plea back in May, which means that even if you are amenable for treatment, the Court is not bound by an agreement reached between your attorney and the state's attorney...." Id. at 33. The court then found that confinement was appropriate and refused to grant a SSOSA.²

Lord did not directly appeal his judgment and sentence. Rather, he filed this timely PRP on August 8, 2002 at Division Two of the Court of Appeals principally arguing that the prosecutor improperly revoked her agreement to recommend that Lord receive a partially suspended sentence and a SSOSA.³ The chief judge of the Court of Appeals dismissed Lord's PRP holding that the prosecutor did not breach the plea agreement by revoking her recommendation.⁴ Ct. of Appeals Order at 11. Lord filed a motion for discretionary review of the chief judge's decision in this court again asserting that the prosecutor breached the plea agreement. ⁵ WE GRANTED REVIEW.

ANALYSIS

In order to obtain relief in a timely PRP, Lord must establish (1) that he was actually and substantially prejudiced by a violation of his constitutional rights; or (2) "that the claimed error constitutes a fundamental defect which inherently results in a complete miscarriage of justice." In re Pers. Restraint of Cook, 114 Wash.2d 802, 812, 792 P.2d 506 (1990). See also In re Pers. Restraint of Davis, 142 Wash.2d 165, 170-71, 12 P.3d 603 (2000)

. He may not rely on "[b]ald assertions and conclusory allegations." In re Pers. Restraint of Rice, 118 Wash.2d 876, 886, 828 P.2d 1086,

cert. denied, 506 U.S. 958, 113 S.Ct. 421, 121 L.Ed.2d 344 (1992). Rather, for Lord to prevail on a PRP alleging constitutional error, he must show by a preponderance of the evidence that the error has caused him actual prejudice. Cook,

114 Wash.2d at 813-14,

792 P.2d 506; In re Pers. Restraint of Powell, 117 Wash.2d 175, 184, 814 P.2d 635 (1991).

Breach of the Plea Agreement

Lord asserts the prosecutor breached the plea agreement when she revoked her recommendation that Lord receive a partially suspended sentence on the condition that he receives a SSOSA. A plea agreement is a contract between the defendant and the prosecutor. State v. Turley, 149 Wash.2d 395, 400, 69 P.3d 338 (2003). A prosecutor must act in good faith when carrying out the terms of the plea agreement. State v. Sledge, 133 Wash.2d 828, 839, 947 P.2d 1199 (1997); State v. Marler, 32 Wash.App. 503, 508, 648 P.2d 903, review denied, 98 Wash.2d 1007 (1982). However, plea agreements are more than simple contracts. Sledge, 133 Wash.2d at 839, 947 P.2d 1199. Since plea agreements concern fundamental rights of the accused, constitutional due process rights apply. Id."Due process requires a prosecutor to adhere to the terms of the agreement" and recommend the agreed upon sentence. Id. (citing Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971)); State v. Talley, 134 Wash.2d 176, 183, 949 P.2d 358 (1998). A defendant may seek relief from a prosecutor's failure to adhere to the terms of the plea agreement in a timely PRP. See In re Pers. Restraint of James, 96 Wash.2d 847, 849-50, 640 P.2d 18 (1982)

; In re Pers. Restraint of Palodichuk, 22 Wash.App. 107, 111, 589 P.2d 269 (1978). If a personal restraint petitioner can show that the prosecutor has failed to adhere to the terms of the plea agreement, the petitioner establishes that he or she was actually and substantially prejudiced by the prosecutor's violation of his or her constitutional rights and is entitled to relief.⁶

See James,

96 Wash.2d at 850,

640 P.2d 18; Palodichuk,

22 Wash.App. at 111,

589 P.2d 269.

To determine whether a prosecutor has adhered to the terms of an agreement, we review the sentencing record to ascertain the parties'"objective manifestations of intent." Turley, 149 Wash.2d at 400,69 P.3d 338 (citing Wilson Court Ltd. P'Ship v. Tony Maroni's, Inc., 134 Wash.2d 692, 699, 952 P.2d 590 (1998)). A defendant has two possible remedies if the prosecutor has breached the agreement. State v. Miller, 110 Wash.2d 528, 531, 756 P.2d 122 (1988). "`The court can permit the accused to withdraw his plea and be tried anew on the original charges, or grant specific performance of the agreement.'" Id. (quoting State v. Tourtellotte, 88 Wash.2d 579, 585, 564 P.2d 799 (1977)); see also State v. Harrison, 148 Wash.2d 550, 557, 61 P.3d 1104 (2003)

. A defendant's preference of remedy controls, "`unless there are compelling reasons not to allow that remedy.'" Harrison, 148 Wash.2d at 557,

61 P.3d 1104 (quoting Miller, 110 Wash.2d at 535,

756 P.2d 122).

The chief judge examined Lord's plea agreement to ascertain the parties' intent, noting that "although the plea agreement is not the picture of clarity, it appears that the prosecutor agreed to recommend a sentence of 132 months with 126 months suspended on the condition petitioner successfully obtained treatment under SSOSA." Ct. of Appeals Order at 10. Accordingly, the chief judge held that "because the [sentencing] court found petitioner ineligible for a SSOSA, the prosecutor was no longer obligated to recommend" that Lord receive a partially suspended sentence, and thus, the prosecutor adhered to the terms of the agreement. Id....