People v. Johnson, No. 99SC219.

• Decision Date: 24 April 2000
• Docket Number: No. 99SC219.
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Robert Charles JOHNSON, Respondent.
• Court: Colorado Supreme Court

999 P.2d 825

The PEOPLE of the State of Colorado, Petitioner, v. Robert Charles JOHNSON, Respondent.

No. 99SC219.

Supreme Court of Colorado, En Banc.

April 24, 2000.

Rehearing Denied May 15, 2000.

Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Alan J. Gilbert, Solicitor General, Paul Koehler, Assistant Attorney General, Appellate

Division Denver, Colorado, Attorneys for Petitioner.

Peter B. Albani, Denver, Colorado, Michael T. Kossen, Highlands Ranch, Colorado, Attorneys for Respondent.

Justice HOBBS delivered the Opinion of the Court.

The People ask us to reverse the court of appeals' ruling that defendant-respondent Robert C. Johnson (Johnson) was entitled to a sentence reduction under his plea agreement. The court of appeals ordered the reduction after concluding that the District Attorney (DA) breached the agreement by refusing to perform a polygraph examination on Johnson. Because we hold that the DA acted in good faith under the circumstances by refusing to proceed with the polygraph examination, we reverse the judgment of the court of appeals.¹

I.

Defendant-Respondent Robert C. Johnson pled guilty in 1996 to two criminal counts: (1) accessory to crime under section 18-8-105, 8B C.R.S. (1986 & 1996 Supp.), a class four felony with a presumptive sentencing range of two to six years imprisonment; and (2) second degree burglary under section 18-4-203, 8B C.R.S. (1986), a class three felony with a presumptive sentencing range of four to twelve years imprisonment. His plea agreement stipulated to a twenty-year sentence to the Department of Corrections.² However, the agreement provided that Johnson's sentence could be reduced, on resentencing, to a cap of six years if Johnson were to successfully pass a polygraph examination administered through the DA.³

The incident leading to the charges against Johnson centered on the murder of Monte Charbonneau (Charbonneau). Johnson and Jason Mayo (Mayo), who both knew Charbonneau, went to the hotel room where Charbonneau was staying and asked to use the bathroom. Charbonneau let them in, whereupon Mayo pulled out a pistol and shot Charbonneau. In later questioning, Mayo indicated Johnson was unaware that Mayo intended to shoot Charbonneau when they went to the hotel. Evidence on this point was conflicting, however. The parties agreed that the polygraph component of the plea agreement was designed to test Johnson's contention that he was "not involved in the planning, formation, or commission of the murder of Monte Charbonneau." The pertinent section of the agreement stated:

[I]f defendant successfully passes DA polygraph DA agrees to reduce sentence and plea to a cap of 6 years.

At sentencing, the trial court asked the defense if the "statement of the people who administer the polygraph [as to] whether [Johnson] passes or not is conclusive to that issue." Both Johnson and his defense counsel agreed that the DA polygraphist's statement would be conclusive.⁴

Shortly after entering his plea of guilty, Johnson appeared for the examination and the DA's polygraphist asked a series of preexamination questions. One question related to whether Johnson had taken previous polygraph examinations related to the crimes at issue in this case. Johnson answered that he had taken two such examinations.

The polygraphist then stated that he would need to see complete information from the earlier examinations in order to conduct a reliable test of Johnson. The polygraphist testified that he would "question the validity" of his later polygraph test if he did not know the questions asked, the answers given, and the results recorded in Johnson's two earlier polygraphs. The polygraphist stated that a test subject can become "de-sensitized" to questions asked in previous polygraphs.⁵

Johnson refused to produce the requested information, invoking the attorney work product and attorney-client privileges because earlier polygraphs had been administered for defense purposes. Although he does not claim that the DA knew of these defense polygraphs at the time of plea negotiations and entry, he argues that his bargain did not include disclosure of privileged information.

The DA refused to proceed with its polygraph, reasoning that the polygraphist could not conduct a reliable examination without the earlier polygraph records. Johnson then filed a motion requesting imposition by the trial court of the reduced sentence cap of six years, claiming that he was entitled to the alternative sentence because: (1) he had fulfilled his part of the bargain and (2) the DA had breached the agreement.

Although agreeing with Johnson's contention that the earlier polygraph records were privileged, the trial court denied the motion. The court concluded that the DA had not breached the agreement by refusing to test Johnson without the earlier polygraph records, because they were necessary to conduct a reliable DA test and the DA had not known about the defense tests. The court found to be legitimate the polygraphist's concern regarding the validity of his own examination without having the prior polygraph information:

The Court denies the defense motion for imposition of alternative sentence, finding that the inability of the—and I use this word in quotes, because it cites paragraph 18 of the plea agreement, the inability of, quote, the DA polygraph, unquote, is occasioned by the defendant's refusal to submit earlier polygraph results, and that therefore a valid evaluation could not be produced. The Court does not in any way seek to order or require the defendant to submit the results of the earlier polygraph examination, but the Court finds that the district attorney did not nor could not have known of the existence of earlier polygraphs absent the defendant making that information known to him. And for that reason the district attorney will not be penalized by the Court finding that the agreement was not—was not complied with by the district attorney's office.

Johnson appealed and, in an unpublished opinion, the court of appeals reversed. See People v. Johnson, No. 97CA2128, slip. op. at 7 (Colo.App. Dec. 10, 1998). The court of appeals concluded that: (1) the disclosure of previous polygraph results was not contemplated in the plea agreement and (2) the DA's polygraphist was well aware during plea negotiations that prior polygraphs could affect subsequent tests. The court of appeals concluded that the trial court's ruling left defendant with "a Hobson's choice: either disclose privileged, protected information or forego the agreement." Because the court concluded that Johnson substantially performed his side of the bargain by appearing for the polygraph examination, the court held that he was entitled to specific performance of the alternative six-year sentence.

We disagree. We hold that the DA proceeded in good faith to perform its side of the bargain and that Johnson did not establish his entitlement to the sentence reduction. Consequently, we reverse the judgment of the court of appeals.

II.

We hold that the DA did not breach its plea agreement with Johnson by refusing to proceed with the polygraph examination in the absence of the information the DA's polygraphist requested to assure reliability of the examination.

A. Principles Guiding Interpretation of Plea Agreements

Courts have long applied contract principles when interpreting defense and prosecution obligations under plea agreements. See People v. McCormick, 859 P.2d 846, 856 (Colo.1993)

(citing cases). "However, a plea agreement is more than a mere contract between two parties and `must be attended by constitutional safeguards to ensure that a defendant receives the performance that he is due.'" Craig v. People, 986 P.2d 951, 961 (Colo.1999) (quoting McCormick, 859 P.2d at 856).

Our task is to interpret a plea agreement consistent with "the reasonable intent of the parties in light of the defendant's right to be treated fairly by the government." See id. (citing People v. Wilbur, 890 P.2d 113, 117 (Colo.1995)). We interpret plea agreements pursuant to an objective standard, focusing on the meaning a reasonable person would have attached to the agreement under the circumstances. See Craig, 986 P.2d at 961

. In effectuating the intentions of the parties, we recognize that terms of a plea agreement may be implied as well as expressed plainly on the agreement's face. See United States v. Bunner, 134 F.3d 1000, 1003 (10th Cir.1998).

Determination of the parties' obligations under a plea agreement is a question of law we review de novo. See Craig, 986 P.2d at 960

; see also St. James v. People, 948 P.2d 1028, 1030-31 (Colo.1997). In contrast, we review a trial court's factual finding of breach under a clearly erroneous standard. See St. James, 948 P.2d at 1031. "Appellate review of plea agreements often involves a blend of law and facts."⁶

Id.

When a party has materially and substantially breached its own obligations under the plea agreement, this discharges the opposing party from its obligations. See McCormick, 859 P.2d at 856. A remedy of specific performance on a plea agreement requires the defendant to establish the circumstances entitling him to relief. See People v. Fisher, 657 P.2d 922, 928 (Colo.1983)

. Included in the obligations of all parties to a plea agreement, consistent with contract principles, is a continuing duty to perform in good faith.⁷

See, e.g., United States v. Jones, 58 F.3d 688, 692 (D.C.Cir.1995)(citing Restatement (Second) of Contracts § 205 (1981)).

B. Johnson's Plea Agreement

Our primary task in this case is determining the parties' obligations under the plea agreement, which we do de novo. The agreement requires that Johnson "successfully" pass a DA polygraph in order to receive a sentence reduction. The trial judge at the providency hearing confirmed the parties' understanding that the statement of the DA's polygraphist would be conclusive as to whether Johnson's...