State v. Boley, No. 91,804.

• Decision Date: 10 June 2005
• Docket Number: No. 91,804.
• Citation: 279 Kan. 989,113 P.3d 248
• Parties: STATE OF KANSAS, Appellee, v. CHARLES D. BOLEY, Appellant.
• Court: Kansas Supreme Court

279 Kan. 989

113 P.3d 248

STATE OF KANSAS, Appellee, v. CHARLES D. BOLEY, Appellant.

No. 91,804.

Supreme Court of Kansas.

Opinion filed June 10, 2005.

Randall L. Hodgkinson, deputy appellate defender, argued the cause and was on the briefs for appellant.

Donna L. Longsworth, assistant county attorney, argued the cause, and David E. Yoder, county attorney, and Phill Kline, attorney general, were with her on the brief for appellee. The opinion was delivered by

LUCKERT, J.:

This case requires us to decide whether the State may, in its discretion, withdraw from a plea agreement when a case is remanded with directions to resentence the defendant to a lesser penalty based on the holding in State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004) (defendant convicted of manufacturing methamphetamine should have been sentenced to a severity level 3 drug felony rather than a severity level 1 drug felony).

As part of a plea agreement, Charles D. Boley pled no contest to one count of attempt to manufacture methamphetamine, in violation of K.S.A. 65-4159(a) and K.S.A. 21-3301, a severity level 1 drug felony. Originally, Boley had been charged with this offense, or, alternatively, with manufacture of methamphetamine and with conspiracy to manufacture methamphetamine, in violation of K.S.A. 65-4159(a) and K.S.A. 21-3302. Pursuant to the plea agreement, the State dismissed the conspiracy charge and agreed to recommend a downward durational departure sentence of 48 months' imprisonment. The district court accepted the plea after questioning Boley to ascertain the voluntariness of his plea.

Before sentencing, Boley argued to the district court that the conviction should carry a severity level 3 felony penalty under K.S.A. 65-4161(a) or, alternatively, should be a misdemeanor under K.S.A. 65-4127c rather than a severity level 1 felony. The district court found that Boley had agreed to plead guilty to a severity level 1 felony, but did impose the 48-month downward departure sentence recommended by the State.

Boley appealed. In State v. Boley, 32 Kan. App. 2d 1192, 95 P.3d 1022 (2004), the court (Boley Court of Appeals) reversed the district court on the sentencing issue based upon McAdam, 277 Kan. 136 and State v. Barnes, 278 Kan. 121, 92 P.3d 578 (2004) (applying McAdam to cases pending on direct appeal). The State did not seek review of this holding.

In addition, the Boley Court of Appeals remanded the case for resentencing and ruled that because resentencing would frustrate the State's purpose in entering the plea agreement, upon remand the State could withdraw from the plea agreement and refile the charges that were dismissed pursuant to that agreement or choose to perform under the plea agreement as modified. See 32 Kan. App. 2d 1192, Syl. Boley petitioned for review of this portion of the decision, and this court granted his petition for review.

Upon Remand for Resentencing Pursuant to McAdam Should the State be Released From its Obligation to Abide by the Plea Agreement?

In his petition for review, Boley first argues we need not review the analysis of the Boley Court of Appeals because—except for the fact that he objected to the severity level of his crime before the district court—his case is in exactly the same procedural posture as Barnes, which required the case to be remanded for resentencing under the rule announced in McAdam and nothing more. See 278 Kan. at 127-28. The Barnes court, however, did not rule on the status of a defendant's plea agreement on remand because that issue was not raised by the parties. Thus, Barnes does not control.

In his brief, Boley also cites several other decisions. However, much like Barnes, the issue of whether the State could withdraw from the plea agreement was not addressed in any of those opinions because it was not raised by the parties. See State v. Santos-Garza, 276 Kan. 27, 72 P.3d 560 (2003) (vacated agreed-upon upward durational departure sentences as illegal sentences and remanded for resentencing); State v. Cullen, 275 Kan. 56, 60 P.3d 933 (2003) (vacated agreed-upon upward durational departure sentences as illegal sentences and remanded for resentencing); State v. Pruitt, 275 Kan. 52, 60 P.3d 931 (2003) (vacated agreed-upon upward durational departure sentences as illegal sentences and remanded for resentencing); and State v. Haskins, 262 Kan. 728, 730-32, 942 P.2d 16 (1997) (Since no plea agreement existed, the State could not violate the plea agreement by informing the trial court of defendant's true criminal history score; if there had been a plea agreement, the trial court would not have been bound by it and would have been required to sentence defendant according to his true criminal history score.)

Thus, we examine the Boley Court of Appeals' analysis and determination that the State could withdraw from the plea under the frustration of purpose doctrine. In reaching this holding, the court relied primarily on United States v. Bunner, 134 F.3d 1000 (10th Cir.), cert. denied 525 U.S. 830 (1998). In Bunner, the defendant pled guilty to using a firearm during the commission of a drug trafficking offense, see 18 U.S.C. § 924(c) (2000), as part of a plea bargain where the government agreed to dismiss the remaining charges. Three years later, the United States Supreme Court ruled that the defendant's conduct no longer constituted a violation of 18 U.S.C. § 924(c). After the defendant successfully challenged his sentence and his sentence was vacated, the government moved to reinstate the previously dismissed charges.

The Tenth Circuit Court of Appeals held that a defendant's successful post-plea challenge to his sentence did not repudiate his plea agreement; however, it did frustrate the government's purpose in entering into the plea agreement. Therefore, under the frustration of purpose doctrine, the government could choose to be discharged from its obligations under the plea agreement and reinstate the previously dismissed charges. 134 F.3d at 1005.

In following Bunner, the Boley Court of Appeals noted that this court has previously applied contract law principles to the construction of plea agreements. Indeed, we have noted that "while principles of contract law cannot be blindly incorporated into the area of plea bargaining, they provide a useful analytical framework." State v. Smith, 244 Kan. 283, 285, 767 P.2d 1302 (1989). A plea agreement is premised upon an expectation that the terms will be honored by each party and that redress is available when necessary in the courts. Santobello v. New York, 404 U.S. 257, 260-62, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971). With predictability and reliance as the foundation of the plea bargaining, so long as we remain mindful of the constitutional implications of the plea bargaining process which may require a different analysis in some circumstances, see State v. Wills, 244 Kan. 62, 65-66, 765 P.2d 1114 (1998), application of fundamental contract principles is generally the best means to fair enforcement of the parties' agreed upon obligations.

Contract analysis appropriately begins with the first issue considered by the Tenth Circuit in Bunner: Did the defendant breach the plea agreement by challenging his sentence? The Bunner court rejected this argument, noting that nothing in the plea agreement suggested the defendant had relinquished his right to attack his sentence. 134 F.3d at 1004. Similarly, Boley did not agree to recommend any particular sentence, and the plea agreement did not prohibit him from seeking a lesser sentence. Additionally, Boley did not waive his right to argue the severity level of his crime or to appeal his sentence. Despite this, the State argues Boley agreed to plead to a severity level 1 crime and the severity level was a material provision of the agreement. The State's argument blurs the distinction between the conviction and the sentence. Boley's conviction stands; what changes is the length of his sentence.

In Kansas,

"all plea discussions are premised upon an understanding that such agreements are not binding upon the trial judge. Thus, when a plea agreement of guilty is tendered or received as a result of a prior plea agreement, the trial judge may give the agreement consideration, but is not bound by its terms and can reach an independent decision on whether to approve a negotiated charge or sentence concessions." State v. Hill, 247 Kan. 377, 385, 799 P.2d 997 (1990).

See K.S.A. 21-4713 (listing the actions prosecutor may take under plea agreements; prosecutor may recommend sentence); State v. Ford, 23 Kan. App. 2d 248, 253, 930 P.2d 1089 (1996), rev. denied 261 Kan. 1087 (1997) (parties to a plea agreement cannot contract for specific sentence). Therefore, there could not have been an agreement as to the sentence and, contrary to the district court's ruling, Boley did not breach the agreement by attacking his sentence.

The Tenth Circuit in Bunner and the Boley Court of Appeals in this case next considered whether the defendant's actions frustrated the purposes that the parties had hoped to achieve through the plea agreement. The frustration of purpose doctrine is stated in the Restatement (Second) of Contracts § 265 (1979):

"Where, after a contract is made, a party's principal purpose is substantially frustrated without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his remaining duties to render performance are discharged, unless the language or the circumstances indicate the contrary."

The Bunner court stated the considerations and elements of the frustration of purpose doctrine:

"When two parties enter into a contract, each has an object or purpose for which [that party] joins the transaction. See Arthur Linton Corbin, Corbin on Contracts § 1353 (1962). These purposes form the basis of the agreement, absent which neither party would consent to be bound. Occasionally, however, through no fault of

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