State v. Giebler

• Decision Date: 13 February 1979
• Docket Number: No. 6082-I,6082-I
• Citation: 22 Wn.App. 640,591 P.2d 465
• Parties: STATE of Washington, Respondent, v. Ralph Anthony GIEBLER, Appellant.
• Court: Washington Court of Appeals

Page 640

22 Wn.App. 640

591 P.2d 465

STATE of Washington, Respondent, v. Ralph Anthony GIEBLER, Appellant.

No. 6082-I.

Court of Appeals of Washington, Division 1.

Feb. 13, 1979.

Reconsideration Denied March 8, 1979.

Gilbert & Meyer, John M. Meyer, Mount Vernon (Court Appointed), for appellant.

Patrick R. McMullen, Skagit County Pros. Atty., Larry E. Moller, Deputy Pros. Atty., Mount Vernon, for respondent.

RINGOLD, Judge.

Ralph Anthony Giebler appeals from a judgment and sentence entered upon a plea of guilty to the crime of robbery in the first degree.

Giebler contends that (1) he is entitled to specific performance of a plea bargain agreement because the State did not fulfill its promise, and (2) the case should be remanded for resentencing because the trial judge conducted an ex parte off-the-record discussion with a Skagit County sheriff regarding an assault incident involving Giebler which occurred in the county jail while he was awaiting sentencing.

Giebler entered a plea of guilty to robbery in the first degree upon agreement by the State not to file a deadly weapon charge and to recommend a 3-year deferred sentence on condition that he spend 8 months in the Skagit County jail. A presentence investigation was requested, and on September 30, 1977, Giebler appeared for sentencing. The State advised the court at the time of sentencing that an assault incident involving Giebler had occurred subsequent to entry of the plea of guilty. The State summarized in some detail a report of the incident, which indicated that Giebler had assaulted a 70-year-old fellow inmate on two occasions. The inmate was taken to the hospital because of his age and heart condition, and was placed in the intensive care unit for a period of 1 to 2 days. At sentencing Giebler's attorney informed the court that Giebler did not want to make any statement regarding the incident, but wished to emphasize that the alleged victim wanted to "let the whole situation drop." The trial judge continued the date for sentencing, indicating that he wanted to discuss the incident with the sheriff. When sentencing resumed, the following occurred THE COURT: Did you have an opportunity to talk to the Sheriff?

(Giebler's attorney): No, I did not.

THE COURT: I talked to the Sheriff this morning and he said he would be available for any questions you might have to ask as to what our discussion was concerning Mr. Giebler's conduct in jail. He is available if you wish. Did you want an opportunity to talk to him this morning?

(Giebler's attorney): No, Your Honor.

THE COURT: . . . what is the State's recommendation?

(State's attorney): That Mr. Giebler be sentenced to the Department of Institutions. We were contemplating changing the recommendation to eight months in jail and probation.

(Giebler's attorney): That was the agreed recommendation, Your Honor.

The trial court sentenced Giebler to the Department of Institutions for a period of not less than 20 years.

Giebler first contends that the State breached the plea bargain agreement to recommend a deferred sentence and that the case should be remanded for specific enforcement of the agreement. Giebler relies upon State v. Tourtellotte, 88 Wash.2d 579, 584-85, 564 P.2d 799, 802 (1977), where the court stated:

A plea bargain is a binding agreement between the defendant and the state which is subject to the approval of the court. When the prosecutor breaks the plea bargain, he undercuts the basis for the waiver of constitutional rights implicit in the plea. In Santobello v. New York, (404 U.S. 257, 263, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971)), the United States Supreme Court noted that there are two alternative forms of relief available to the defendant under these circumstances. The court can permit the accused to withdraw his plea and be tried anew on the original charges, or grant specific performance of the agreement.

Giebler argues that under the facts of this case, specific performance should be ordered. We disagree. When it became apparent to Giebler that the State was changing its recommendation, he was under a duty to move to withdraw his plea of guilty or to have the agreement specifically enforced. Giebler's failure to object precludes him from raising the issue on appeal. Barnhart v. State, 34 Md.App. 632, 368 A.2d 1124 (1977); People v. Barajas, 26 Cal.App.3d 932, 103 Cal.Rptr. 405 (1972); But see People v. Price, 36 Ill.App.3d 566, 344 N.E.2d 559 (1976). Further, the assault incident, which occurred while Giebler was awaiting sentencing on his guilty plea, was a sufficient change in circumstances to justify the State in retreating from the promised recommendation. State v. Johnston, 17 Wash.App. 486, 564 P.2d 1159 (1977); State v. Yates, 13 Wash.App. 116, 533 P.2d 846 (1975). Although an agreement between the parties "cannot be turned aside simply because of the exigencies of the moment(,)" State v. Tourtellotte, supra, 88 Wash.2d at 584, 564 P.2d at 802, a defendant cannot rely upon an agreement when he commits another offense while awaiting sentencing.

Giebler next contends that the case should be remanded for resentencing because the trial court conducted an ex parte off-the-record discussion with the Skagit County sheriff concerning the jail incident. We agree that the trial court should not conduct its own personal investigation; however, under the facts and circumstances of this case, we do not remand for resentencing.

In determining the proper sentence, a trial court is vested with broad discretion and "can make whatever investigation (it) deems necessary or desirable." State v. Dainard, 85 Wash.2d 624, 626, 537 P.2d 760, 761 (1975). However, the court should not conduct a personal investigation of the defendant and should avoid whenever possible receiving ex parte statements concerning the defendant. People v. Giles, 70 Cal.App.2d Supp. 872, 161 P.2d 623 (1945); 21 Am.Jur.2d Criminal Law S 527 (1965). In Stephan v. United States, 6 Cir., 133 F.2d 87, Cert. denied, 318 U.S. 781, 63 S.Ct. 858, 87 L.Ed. 1148 (1943) it was held that it was not error for the trial judge to conduct personal interviews in the defendant's absence with the defendant's wife, representatives of the Federal Bureau of Investigation, chief probation officer, defendant's counsel and federal prosecutors. Better practice, however, would require that the "information should (be) disclosed to the Judge in open court and in the presence of...