State v. Birge
| Decision Date | 01 February 2002 |
| Docket Number | No. S-00-1029., No. S-00-984 |
| Citation | 638 N.W.2d 529,263 Neb. 77 |
| Parties | STATE of Nebraska, Appellee, v. Patrick C. BIRGE, Appellant. |
| Court | Nebraska Supreme Court |
Thomas C. Riley, Douglas County Public Defender, for appellant.
Patrick C. Birge, pro se.
Don Stenberg, Attorney General, and Susan J. Gustafson for appellee.
These consolidated cases on further review from the Nebraska Court of Appeals involve a violation of a plea agreement by the State and the availability of relief therefrom by a criminal defendant. Pursuant to a plea agreement in which the State agreed to remain silent at sentencing, Patrick C. Birge pled no contest in the district court for Douglas County to unlawful possession with intent to deliver cocaine in case No. S-00-984, to burglary in case No. S-00-1029, and to habitual criminal charges in both cases.
At sentencing, the State asked the district court "to consider the full range" of available sentences. Birge's objection to the State's comment was overruled, and the sentences were imposed. Birge appealed his sentences to the Court of Appeals, which vacated Birge's sentences and remanded the causes for resentencing on the basis that the State had violated the plea agreement by failing to remain silent at sentencing. State v. Birge, Nos. A-00-984, A-00-1029, 2001 WL 968393 (Neb. App. August 28, 2001) (). The State petitioned for further review claiming that because Birge did not move to withdraw his pleas, he was precluded from obtaining relief on appeal from the State's violation of the plea agreement, and that the Court of Appeals erred in granting appellate relief. We granted the State's petition for further review. We affirm the decision of the Court of Appeals.
On April 24, 2000, Birge entered pleas of no contest to unlawful possession with intent to deliver cocaine in case No. S-00-984, to burglary in case No. S-00-1029, and to habitual criminal charges in both cases. Birge's pleas were entered as part of a plea agreement in which the State agreed both to dismiss certain other charges and to "remain silent at the time of sentencing." Other charges were dismissed, and the district court accepted Birge's pleas and found him guilty on the remaining charges indicated above.
At sentencing on August 30, 2000, defense counsel asked that Birge's sentences run concurrently and argued for the minimum sentences allowed by law. Thereafter, the following dialog occurred:
The district court then reviewed Birge's record and commented upon the violence of the instant crimes and Birge's prior convictions. The district court commented on whether the sentences should be consecutive or concurrent and concluded, "[E]ven though I've tried to listen to the strong statement made by your attorney ... it's my conclusion that the sentences in these cases should run one after the other."
Defense counsel then called the district court's attention to the fact that the State had agreed as part of the plea agreement to "remain silent" at sentencing. Defense counsel argued that the prosecutor had violated the plea agreement by making the comments quoted above. The prosecutor then stated:
I have not made any recommendation as to sentencing. The Court asked me if I had anything to say, and I said that I didn't share counsel's remarks and that you're free to consider the full range available to you. But I haven't made any recommendation. The Court obviously is going to disregard anything that I say if the Court perceives it was inviolate [sic] of the plea agreement in any way. And if in fact it was, which I don't think it was, I will withdraw the remarks. I do not make any recommendation as to sentencing at all.
Defense counsel responded that the prosecutor's comments alone were enough to have violated the portion of the plea agreement that the State would remain silent at sentencing. The prosecutor replied, "In that case, if counsel wants to move to withdraw the plea agreement we can take that up, and obviously I would move to reinstate all the other charges." Birge did not subsequently move to withdraw his pleas.
The district court then stated that the prosecutor's comments "would not in any way have changed the Court's opinions." Defense counsel again objected to the prosecutor's comments; the district court noted the objection and overruled it. The district court then sentenced Birge to 10 to 20 years' imprisonment on the possession with intent to deliver charge and 10 to 20 years' imprisonment on the burglary charge and ordered that the sentences be served consecutively.
Birge appealed to the Court of Appeals, assigning as error the district court's imposition of excessive sentences and the State's violation of the plea agreement. The Court of Appeals determined that the prosecutor's comments at sentencing violated the State's plea agreement with Birge and vacated the sentences and remanded the causes to the district court for resentencing before a different judge. The State petitioned this court for further review. We granted the State's petition.
On further review, the State asserts that the Court of Appeals erred in (1) failing to find that Birge was precluded from obtaining appellate relief from the alleged violation of the plea agreement because although Birge objected, he did not move to withdraw his pleas; (2) Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), controlling under the facts of this case; and (3) failing to apply a harmless error analysis.
When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. State v. Kinney, 262 Neb. 812, 635 N.W.2d 449 (2001).
Preservation of Issue of Violation of Plea Agreement and Entitlement to Relief.
The State argues that the Court of Appeals erred in failing to conclude that Birge had waived all errors with respect to the violation of the plea agreement because although he objected, he did not move to withdraw his pleas in the district court. The State asserts that the Court of Appeals erred by failing to follow the statement of this court in State v. Shepherd, 235 Neb. 426, 429, 455 N.W.2d 566, 568 (1990), wherein we stated, "A defendant is precluded from obtaining appellate relief from a prosecutor's violation of a plea agreement unless the defendant moves to set aside the plea in the court."
The Court of Appeals did not read Shepherd to require that the defendant was required both to object to the violation of the plea agreement and to move to withdraw pleas in order to preserve the issue for appellate review. The Court of Appeals concluded that Birge's objection was sufficient to preserve the issue of violation of the plea agreement for appeal. The Court of Appeals thus rejected the State's argument and granted Birge relief. We conclude that where Birge objected before the district court, the Court of Appeals did not err in considering the issue of violation of the plea agreement on review and in ordering relief in the form of specific enforcement of the plea agreement by remanding the causes for resentencing before a different judge.
The leading U.S. Supreme Court case in this area is Santobello v. New York, supra. In Santobello, the U.S. Supreme Court held that "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." 404 U.S. at 262, 92 S.Ct. 495. The Court determined in Santobello that the State's promise to remain silent at sentencing had not been fulfilled and concluded that "the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty will be best served by remanding the case to the state courts for further consideration." 404 U.S. at 262-63, 92 S.Ct. 495. In Santobello, the defendant both objected at the time of the breach of the plea agreement and attempted to withdraw his plea of guilty. In regard to the remedy for the breach of a plea agreement, the Court stated:
The ultimate relief to which petitioner is entitled we leave to the discretion of the state court, which is in a better position to decide whether the circumstances of this case require only that there be specific performance of the agreement on the plea, in which case petitioner would be resentenced by a different judge, or whether, in the view of the state court, the circumstances require granting the relief sought by petitioner, i.e., the opportunity to withdraw his plea of guilty.
Santobello v. New York, 404 U.S. 257, 263, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).
Thus, in a case where the prosecutor has breached a plea agreement and the issue of the breach has been preserved, the U.S. Supreme Court has stated that the defendant is entitled to some relief which might take the form of either "specific performance of the agreement on the plea" or withdrawal of the plea. Id. In the instant case, the State breached the portion of the plea agreement in which the State had agreed to remain silent at sentencing. In a situation such as the present case in which the State has breached the plea agreement by failing to remain silent at sentencing, specific performance may take the form of resentencing before a different judge,...
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State v. Landera
...intend to follow through with the agreement.” 2 Although the Court of Appeals focused considerable attention on the remedies dictated in State v. Birge3 for breach of a plea agreement, it cited no authority for its conclusion that the State had in fact violated the plea agreement by recomme......
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State v. Sidzyik
...Santobello and written about violations of plea agreements and the redress afforded defendants for such violations in State v. Birge, 263 Neb. 77, 638 N.W.2d 529 (2002), and State v. Gonzalez–Faguaga, 266 Neb. 72, 662 N.W.2d 581 (2003). In Birge, the State failed to remain silent at sentenc......
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State v. Alba
...properly preserved for review, the defendant may be entitled to withdrawal of the plea or to specific performance. See State v. Birge, 263 Neb. 77, 638 N.W.2d 529 (2002). These remedies are obviously concepts from the law of contracts, but this case does not involve a prosecutor's breach of......
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State v. Gonzalez-Faguaga, S-02-172.
...to be part of the inducement or consideration, such promise must be fulfilled." 404 U.S. at 262, 92 S.Ct. 495. Accord State v. Birge, 263 Neb. 77, 638 N.W.2d 529 (2002). If the State commits a material breach of a negotiated plea agreement, it would be a rare circumstance when a lawyer with......