State v. Barber, 83640–0.

CourtUnited States State Supreme Court of Washington
Writing for the CourtSTEPHENS, J.
Citation170 Wash.2d 854,248 P.3d 494
PartiesSTATE of Washington, Respondent.v.Danny Joe BARBER, Jr., Petitioner.
Docket NumberNo. 83640–0.,83640–0.
Decision Date20 January 2011

170 Wash.2d 854
248 P.3d 494

STATE of Washington, Respondent.
Danny Joe BARBER, Jr., Petitioner.

No. 83640–0.

Supreme Court of Washington, En Banc.

Argued Sept. 23, 2010.Decided Jan. 20, 2011.

[248 P.3d 495]

James Lewis Reese, III, Attorney at Law, Port Orchard, WA, for Petitioner.Randall Avery Sutton, Kitsap County Prosecutor's Office, Port Orchard, WA, for Respondent.STEPHENS, J.

[170 Wash.2d 855] ¶ 1 We have recognized two possible remedies for an involuntary guilty plea: withdrawal of the plea or specific performance of the plea agreement. See In re Pers. Restraint of Isadore, 151 Wash.2d 294, 303, 88 P.3d 390 (2004) (citing State v. Turley, 149 Wash.2d 395, 399, 69 P.3d 338 (2003)). The question in this case is whether a defendant is entitled to specific performance when the result is to bind the sentencing court to impose a sentence that is [170 Wash.2d 856] contrary to law. Danny Joe Barber argues he is entitled to the sentence the parties agreed to in a plea agreement, though it failed to include a statutorily mandated term of community custody. He relies on our decision in State v. Miller, which states that “the specific terms of a plea agreement based on a mistake as to sentencing consequences may be enforced despite the explicit terms of a statute.” 110 Wash.2d 528, 532, 756 P.2d 122 (1988) (citing State v. Cosner, 85 Wash.2d 45, 530 P.2d 317 (1975)). The Court of Appeals rejected Barber's argument, concluding that under Miller and other cases, specific performance entitles Barber to nothing more than a favorable recommendation from the State. State v. Barber, 152 Wash.App. 223, 228–29, 217 P.3d 346 (2009). Before this court, the State argues that, if Miller requires not merely a recommendation from the State but judicial enforcement of an illegal sentence, it should be overruled. We conclude that Miller does in fact hold a defendant is entitled to specific performance of an illegal sentence but that this holding is both incorrect and harmful. Accordingly, we overrule Miller and affirm the Court of Appeals.


¶ 2 The State charged Barber by amended information with one count of felony DUI (driving under the influence) arising out of a hit-and-run incident in October 2007. Barber and the State entered into a plea agreement in which Barber agreed to plead guilty in exchange for the State's recommendation of a 51–month sentence to run concurrently with another conviction and that Barber receive credit for time served. The plea agreement form contained a box to note any recommendation regarding community custody, but it was left unchecked.

¶ 3 Before accepting Barber's plea, the court summarized the agreement as follows:

You have entered into a plea agreement with the State of Washington. Pursuant to the plea agreement you have an [170 Wash.2d 857] offender score of seven. The standard range is 51 to 68 months with a maximum of five years. The state is going to recommend 51 months to be served in the Department of Corrections, credit for any time served. They are also going to recommend this run concurrent with another cause number, 07–1–00683–2.

Verbatim Report of Proceedings (VRP) (Nov. 16, 2007) at 3–4. The court then asked whether community custody was required for

[248 P.3d 496]

the offense. Defense counsel responded, “I don't believe so, Your Honor. That is surprising to me as well.” Id. at 4. The prosecutor said nothing.

¶ 4 Later, the State made its recommendation to the court:

Your Honor, 51 months is the state's recommendation. We think it's fair given all the facts of this case. The standard range under the circumstances is 51 to 68. Since he's taken responsibility, we are recommending 51 months, and it is intended for that to run concurrent with his unlawful possession of a firearm case.

Id. at 5. The court followed the State's recommendation and sentenced Barber to 51 months of incarceration. Id. at 9.

¶ 5 Approximately six months later, the Department of Corrections notified the prosecutor's office that Barber's felony DUI offense carried a mandatory 9 to 18 month term of community custody. VRP (Apr. 25, 2008) at 2–3. The State moved to amend the judgment and sentence. At a hearing to consider the State's motion, the State and Barber agreed that the plea was invalid and that Barber was entitled to either withdraw the plea or seek specific performance. Barber chose specific performance. Both the State and Barber assumed that specific performance of the agreement required the State to make a recommendation for no community custody. They disputed, however, whether the court would be bound by the recommendation. The trial court issued a memorandum opinion concluding it was not bound by a recommendation from the State. At Barber's resentencing, the State recommended that the court not impose community custody, but the court declined to follow [170 Wash.2d 858] the recommendation and imposed the statutorily mandated 9 to 18 month term of community custody. Barber appealed.

¶ 6 The Court of Appeals framed the issue as whether specific performance of the plea agreement required the trial court to follow the State's sentencing recommendation. See Barber, 152 Wash.App. at 225–27, 217 P.3d 346. The court cited several of our cases holding that specific performance requires the State to make its promised recommendation but that the trial court retains the discretion to ignore the recommendation. Id. at 227, 217 P.3d 346. Because the State made a recommendation for no community custody at resentencing, the Court of Appeals concluded that Barber received specific performance of the plea agreement. Id. at 229, 217 P.3d 346. The court affirmed the trial court's modification of the judgment and sentence. Id. We granted review. State v. Barber, 168 Wash.2d 1001, 226 P.3d 780 (2010).


¶ 7 The State and Barber agree that he was not informed that a conviction for felony DUI carries a mandatory term of community custody. Thus, there is no dispute that Barber was misinformed as to a direct consequence of his plea and that the plea is invalid. See generally Turley, 149 Wash.2d at 399, 69 P.3d 338 (holding that failure to inform a defendant of mandatory community placement renders a guilty plea invalid). The dispute here focuses on the remedy. Relying on Miller, Barber argues that specific performance of the plea agreement entitles him to a sentence without community custody. The State makes two arguments in response. First, it contends that specific performance entitles Barber to nothing more than the State's recommendation of no community custody, which the trial court is free to reject. Second, if we conclude that specific performance under Miller entitles Barber to a sentence without the statutorily mandated term of community custody, the State asks this court to overrule Miller as “incorrect and harmful.” In re Rights to Waters of Stranger Creek, 77 Wash.2d 649, 653, 466 P.2d 508 (1970).

[170 Wash.2d 859] ¶ 8 The Court of Appeals accepted the State's first position on the premise that the plea agreement called for a recommendation from the State against community custody. Barber, 152 Wash.App. at 225, 217 P.3d 346. The court reasoned that specific performance in such situations is satisfied when the State makes a sentencing recommendation consistent with the plea agreement. Id. at 227, 217 P.3d 346. Thus, it held Barber to his election of specific performance and affirmed the modification of his sentence to include community custody. Id. at 229, 217 P.3d 346.

[248 P.3d 497]

The court did not consider whether its understanding of specific performance differed from the view taken in Miller. See id. at 228, 217 P.3d 346. We believe it does.

¶ 9 Specific performance entitles a defendant to “the benefit of his original bargain.” State v. Tourtellotte, 88 Wash.2d 579, 585, 564 P.2d 799 (1977). A plea agreement functions as a contract in which the defendant exchanges his guilty plea for some bargained-for concession from the State: dropping of charges, a sentencing recommendation, etc. See State v. Sledge, 133 Wash.2d 828, 838–40, 947 P.2d 1199 (1997); State v. Hunsicker, 129 Wash.2d 554, 559, 919 P.2d 79 (1996). Specific performance ensures that the defendant receives the promise he bargained for.

¶ 10 Specific performance of a plea agreement arises in two main contexts: breach of the plea agreement by the prosecutor and mutual mistake by both parties (and the court) as to the consequences of the plea. A breach occurs when the State promises, for example, to recommend or not recommend a particular sentence or to file or drop certain charges, and then fails to keep its promise. If the defendant elects specific performance as a remedy, the State is compelled to make the bargained-for sentencing recommendation or charging decision. See, e.g., State v. Harrison, 148 Wash.2d 550, 559, 61 P.3d 1104 (2003).

¶ 11 The second context for specific performance is that of mutual mistake or reliance on misinformation, where the State and the defendant stipulate in the plea agreement to a sentence that is contrary to law. The parties may agree, for example, that an offense carries a mandatory minimum term [170 Wash.2d 860] of 10 years, when in reality, the mandatory minimum term is 20 years. If the defendant elects specific performance in this context, giving him the benefit of the plea bargain would require imposing the bargained-for sentence.1

¶ 12 As Miller recognized, taken to its logical conclusion, specific performance in the context of a mutual mistake may require enforcement of a sentence that is contrary to law. In Miller, the defendant pleaded guilty to first degree murder, which carried a standard-range sentence between 20 and 30 years. When Miller entered his plea, he was advised by his attorney, who was in turn advised by the prosecutor, that he would be able to argue for an exceptional sentence of 15 years. The parties were unaware that a conviction of first degree...

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