State v. EAJ

• Decision Date: 21 April 2003
• Docket Number: No. 49890-8-I.,49890-8-I.
• Citation: 67 P.3d 518,116 Wn. App. 777,116 Wash. App. 777
• Parties: STATE of Washington, Respondent, v. E.A.J., a minor, Appellant.
• Court: Washington Court of Appeals

67 P.3d 518

116 Wn. App. 777

116 Wash. App. 777

STATE of Washington, Respondent, v. E.A.J., a minor, Appellant.

No. 49890-8-I.

Court of Appeals of Washington, Division 1.

April 21, 2003.

Reconsideration Denied June 4, 2003.

Gregory C. Link, Wa. Appellate Project, Seattle, WA, for Appellant.

Thomas M. Curtis, Snohomish Co. Pros. Atty Office, Everett, WA, for Respondent.

KENNEDY, J.

Fourteen-year old E.A.J. and the State of Washington entered into a plea agreement on December 5, 2001. E.A.J. entered an Alford¹ plea to single counts of first degree rape, second degree assault, and unlawful imprisonment—crimes that he was charged with having committed the previous March, about 10 weeks before his 14th birthday. The State agreed to reduce an initial charge of first degree kidnapping to unlawful imprisonment, and to recommend a manifest injustice disposition, stated as follows: "The Probation Department is asking for a [manifest injustice] to approximately age 20 and the State will support that request." Clerk's Papers at 34.

It is unclear from the record when the parties actually received the Probation Department's Manifest Injustice Report, but the record establishes that the report was filed with the court on the same day as the disposition hearing, some six weeks after the plea hearing. The Probation Department in fact recommended that E.A.J. be committed until his 21st birthday.

At the disposition hearing, the State indicated that it was supporting the Probation Department's request, but also asked the court to impose confinement for 364 weeks, with credit for time served. If the disposition court had followed the 364-week recommendation, E.A.J. would have been entitled to release on or about the 7th anniversary of the crimes, some 10 weeks before his 21st birthday. But the disposition court instead committed E.A.J. to the custody of the Juvenile Rehabilitation Administration (JRA) for a total of 374 weeks—to E.A.J.'s 21st birthday—with credit for 271 days already served in detention, in accord with the recommendation of the Probation Department.² The disposition court also noted that the JRA could elect to place E.A.J. on parole for a year or more, prior to his 21st birthday, and provided in the Disposition Order: "In no case shall this commitment extend past respondent's 21st birthday." Clerk's Papers at 11.

E.A.J. did not contend at the disposition hearing that the State had failed to honor its plea agreement with him. He never sought to withdraw his Alford plea at the trial court level, on that or any other basis. He contends for the first time on appeal that the State violated the plea agreement and that, as a result, he is entitled to reversal of his manifest injustice disposition and to a remand to the trial court for a new disposition hearing before a different judge in order to permit his choice of remedy: withdrawal of the Alford plea or specific enforcement of the plea agreement.

The State denies having breached the plea agreement. In its response to E.A.J.'s motion for accelerated review of the manifest injustice disposition, the State contends that by recommending commitment for 364 weeks with credit for time served, it complied with the plea agreement, in that if the court had accepted that recommendation, E.A.J. would be entitled to release from confinement 10 weeks before his 21st birthday, at which time he would still be "approximately age 20," rather than age 21. At oral argument for this appeal, the State suggested a slightly different theory—that the State did not breach its plea agreement because the agreement was couched from the start in terms that the State would support the Probation Department's recommendation—which the parties believed at the time would be a recommendation for confinement "to approximately age 20" but which in fact turned out to be a recommendation for confinement to age 21.

Whether the State breached its plea agreement with E.A.J. depends on what the parties actually agreed to. We cannot determine this from the record on appeal. The only written record of the agreement itself, which is quoted above, is found in Paragraph 3 of E.A.J.'s Statement of Juvenile on Plea of Guilty. As stated there, the agreement is patently ambiguous. Not only is the phrase "to approximately age 20" ambiguous on its face, but the agreement as a whole is subject to at least three interpretations, each of which seems to us to be equally reasonable. The judge who accepted the plea interpreted the agreement to be that the State would recommend confinement "up to age 20."³ Neither party corrected that court's interpretation. But by that same token, E.A.J. did not protest, at the disposition hearing (where a different judge presided), when the State recommended confinement for 364 weeks, by which recommendation, E.A.J. would be entitled to release some 10 weeks before his 21st birthday at a time when he will still be age 20. E.A.J.'s lack of protest at the disposition hearing could indicate that E.A.J. believed that the State had kept its plea agreement as E.A.J. actually understood the agreement. Or, to the extent that the State indicated its support of the Probation Department's recommendation, both in the plea agreement and at the disposition hearing, E.A.J.'s failure to protest could indicate that the parties understood all along that the State would support the Probation Department's recommendation, which could only be approximated at the time of the plea agreement in that the Manifest Injustice Report was not yet completed.

A plea agreement is a contract, and is to be analyzed in accord with contract principles. State v. Sledge, 133 Wash.2d 828, 838-39, 947 P.2d 1199 (1997). A contract is not subject to specific performance "unless the precise act sought to be compelled is clearly ascertainable." Emrich v. Connell, 105 Wash.2d 551, 558, 716 P.2d 863 (1986). A contract provision is ambiguous when its terms are uncertain or when its terms are capable of being understood as having more than one meaning. Martinez v. Miller Indus., Inc., 94 Wash.App. 935, 944, 974 P.2d 1261 (1999). Additionally, a "promise" may be illusory because it is so indefinite that it cannot be enforced, or because provisions contained in the promise make its performance optional or entirely discretionary on the part of the promisor. Spooner v. Reserve Life Ins. Co., 47 Wash.2d 454, 458, 287 P.2d 735 (1955).

But "when a plea rests in any significant degree on a promise or agreement of the prosecutor ... such promise must be fulfilled." Santobello v. New York, 404 U.S. 257, 263, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). This is because a plea agreement includes a waiver by the defendant of several important constitutional rights. Sledge, 133 Wash.2d at 838-39, n. 6, 947 P.2d 1199. Where the State breaches a plea agreement, the breach "undercuts the basis for the waiver of constitutional rights implicit in the plea." State v. Tourtellotte, 88 Wash.2d 579, 584, 564 P.2d 799 (1977).

An alleged breach of a plea agreement by the State is an issue of constitutional magnitude that can be raised for the first time on appeal. State v. Sanchez, 146 Wash.2d 339, 345-46, 46 P.3d 774 (2002). But where the interpretation of an integrated contract depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence, interpretation of the contract is a question of fact that must be determined by the trial court. Berg v. Hudesman, 115 Wash.2d 657, 668, 801 P.2d 222 (1990) (adopting Restatement (Second) of Contracts §§ 212, 214(c)).⁴ That is the situation here. E.A.J. certainly has not waived the issue by failing to raise it in the trial court, but his failure to have done so makes it impossible for us to review his claim. Appellate courts are not fact-finders.

Accordingly, we remand this matter to the trial court for an evidentiary hearing with respect to the parties' intentions and the interpretation of the plea agreement in this case. Once the trial court interprets the parties' contract, it should be able to determine whether or not the State breached the plea agreement, and we direct that the trial court make such determination, based on such evidence as the parties may present and the principles of Berg and its progeny.

If the court determines that the State did breach its agreement, E.A.J.'s conviction cannot stand. Sledge, 133 Wash.2d at 839-40, 947 P.2d 1199. In that event, the remedy will be a new disposition hearing before a different judge from the one who entered the disposition in this case, to permit E.A.J. his choice of remedy—withdrawal of his Alford plea, or specific performance of the plea agreement.⁵ And, of course, if the court determines that the State did not breach its plea agreement, E.A.J.'s conviction will stand.

E.A.J. also contends that he is entitled to a new disposition hearing in any event because the trial court erred in considering the first two of the five aggravating factors that the court relied upon in imposing the manifest injustice disposition in this case, namely, that in committing the offense, E.A.J. inflicted serious bodily injury upon the victim, and that the offense was committed in an especially heinous, cruel, or depraved manner.⁶ E.A.J. contends that the "infliction of serious bodily harm" aggravating factor inheres in the second degree assault conviction based on the same injury, and that the "cruel, heinous, or depraved" aggravating factor is unconstitutionally vague. In order to address these issues, we must turn to the facts that gave rise to the charges.

On March 19, 2001, E.A.J. happened upon 5-year-old A.R., a neighbor child who knew and trusted him. After asking A.R. for help in finding some keys that E.A.J. had lost earlier that day, he took her to the enclosed backyard of a vacant house. Once there, E.A.J. put A.R. under a tree, placed one hand on A.R.'s neck, and choked her until she passed out and lost...