State v. Harris

• Decision Date: 28 August 2000
• Docket Number: No. 45125-1-I.,45125-1-I.
• Citation: 6 P.3d 1218,102 Wn. App. 275,102 Wash. App. 275
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Mark B. HARRIS, Appellant.

6 P.3d 1218

102 Wash. App. 275

102 Wn. App. 275

STATE of Washington, Respondent, v. Mark B. HARRIS, Appellant.

No. 45125-1-I.

Court of Appeals of Washington, Division 1.

August 28, 2000.

Reconsideration Denied October 9, 2000.

Gregory C. Link, Washington Appellate Project, Seattle, for Appellant.

Erik Pedersen, Skagit County Prosecuting Attorney, Mount Vernon, for Respondent.

WEBSTER, J.

The primary issue presented by this case is whether a plea agreement entered into by an individual prosecutor to make a specific sentencing recommendation is entered into on behalf of the prosecutor's office alone or on behalf of the State of Washington, binding other State agencies, specifically, the Department of Corrections (DOC). Here, the prosecutor agreed to recommend a standard range sentence. The Community Corrections Officer (CCO) preparing the presentence investigation report recommended an exceptional sentence, which the trial court imposed. Appellant Harris argues that the CCO's recommendation contrary to the prosecutor's breached the plea agreement entered into by the State. He also asserts that the CCO is statutorily precluded from advocating for a sentence.

We hold that a CCO is a neutral and independent participant in the sentencing process and is not bound by a plea agreement entered into by the prosecutor's office. We further find that a CCO is not precluded from making a sentencing recommendation. Thus, we affirm.

BACKGROUND

Pursuant to a plea agreement, Harris agreed to plead guilty to one count of communication with a minor for immoral purposes. The State agreed to recommend a sentence at the top of the standard range. At the sentencing hearing, the prosecutor made the agreed upon recommendation. The sentencing court turned for input to the CCO who prepared the presentence investigation report. The CCO recommended imposition of an exceptional sentence and offered support for his position. The CCO's position was stated in the presentence report. Harris did not object to the presentence report or to the CCO's comments at the hearing. The court imposed an exceptional sentence.

PRELIMINARY ARGUMENTS

A. Harris's Challenge Is Not Statutorily Prohibited by RCW 9.94A.210(4)

The State first argues that Harris's appeal of his exceptional sentence is statutorily prohibited because he does not challenge the court's reasons for the exceptional sentence. An exceptional sentence may be reversed only where the reviewing court finds that the reasons supplied by the sentencing judge are not supported by the record or do not justify the sentence, or that the sentence imposed was clearly excessive or too lenient. See RCW 9.94A.210(4).

But this statute seems aimed at prohibiting the appellate court from substituting its judgment for that of the sentencing judge regarding the grounds for imposing an exceptional sentence and the length of such a sentence. This statute should not be read as prohibiting review of errors occurring in the sentencing proceedings. Although not addressing the argument that review is barred by RCW 9.94A.210(4), courts have addressed the question whether a plea agreement was breached where an exceptional sentence was imposed. See, e.g., State v. Sledge, 133 Wash.2d 828, 838, 947 P.2d 1199 (1997)

. Likewise, RCW 9.94A.210(4) should not prevent review of Harris's claimed error that the trial court exceeded its authority under the Sentencing Reform Act by allowing the CCO to argue in favor of an exceptional sentence. Thus, we find that RCW 9.94A.210(4) is not a bar to review in this case.

B. Harris's Arguments Are Not Barred by RAP 2.5

The State next argues that Harris did not challenge the CCO's recommendation at the sentencing hearing and thus may not challenge it for the first time on appeal. See RAP 2.5(a). We assume that the State means this argument to apply to both the errors claimed by Harris. Harris did not object below to the CCO's participation or claim that this participation constituted a breach of the plea agreement.

RAP 2.5(a) is discretionary: "The appellate court may refuse to review any claim of error which was not raised in the trial court." RAP 2.5(a) (emphasis added). See also State v. Ford, 137 Wash.2d 472, 477, 973 P.2d 452 (1999)

(noting that the rule is discretionary, not absolute, and never acts as an absolute bar to review). Furthermore, a party may raise for the first time on appeal a manifest error affecting a constitutional right. See RAP 2.5(a). A prosecutor's failure to adhere to the terms of a plea agreement violates the due process rights of the accused. See Sledge, 133 Wash.2d at 839,

947 P.2d 1199. Moreover, although the State apparently did not argue in Sledge that review was precluded, the court reviewed the claimed breach of the plea agreement even though the court noted that the defendant failed to object below to the testimony that he claimed on appeal constituted a breach of the agreement. See id. at 833, 835, 947 P.2d 1199. Thus, we will review Harris's claimed breach of the plea agreement. We also review the claimed error that the trial court exceeded its authority under the SRA by hearing argument by the CCO. See Ford, 137 Wash.2d at 478,

973 P.2d 452 ("`[W]hen a sentencing court acts without statutory authority in imposing a sentence, that error can be addressed for the first time on appeal.'" (quoting State v. Paine, 69 Wash.App. 873, 884, 850 P.2d 1369 (1993))).

ANALYSIS

A. The CCO Did Not Breach the Plea Agreement

Harris argues that the governmental party to the plea agreement is the State, as in the State of Washington, not simply the prosecutor's office. Thus, he argues that the plea agreement binds all agents of the State, including the DOC. He contends that the State breached the plea agreement by allowing the CCO to recommend an exceptional sentence. The State maintains that the plea agreement was with the prosecutor's office alone, that is, that the DOC was not a party to the plea agreement and was not bound by it.

The parties do not point us to any Washington authority that addresses the issue of whether the governmental party to a plea agreement is the State of Washington or simply the prosecutor's office. First, we set out the fundamental principles underlying plea agreements. Second, we examine recent Washington cases that relate to our question, although they do not directly answer it. Third, we turn to cases in other jurisdictions that have addressed our precise issue. Finally, we draw our conclusion for the case before us.

1. Principles Governing Plea Agreements

Plea agreements are contracts and are analyzed under basic contract principles. See Sledge, 133 Wash.2d at 838,

947 P.2d 1199. Contract law imposes an implied promise by the governmental party¹ to the plea agreement to act in good faith. See id. at 839, 947 P.2d 1199. But because plea agreements concern fundamental constitutional rights of the accused, the defendant's contract rights implicate due process considerations. See id. "Due process requires a prosecutor to adhere to the terms of the agreement." Id. (citing Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971)). "`[W]hen the prosecution breaches its promise with respect to an executed plea agreement, the defendant pleads guilty on a false premise, and hence his conviction cannot stand.'" Sledge, 133 Wash.2d at 839-40,

947 P.2d 1199 (quoting Mabry v. Johnson, 467 U.S. 504, 509, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984)). The prosecutor has a duty not to explicitly undercut the terms of the agreement or evidence an intent to circumvent the terms. See Sledge, 133 Wash.2d at 840,

947 P.2d 1199. The prosecutor is obliged to make the promised sentencing recommendation but need not do so enthusiastically. See id. The prosecutor must candidly answer the court's questions and not hold back any information relevant to the plea agreement. See id. Finally, it is well established that the court is not bound by the plea agreement. See RCW 9.94A.090(2); Sledge, 133 Wash.2d at 839 n. 6,

947 P.2d 1199.

2. Related Washington Cases

In Sledge, upon which Harris relies, the juvenile offender stipulated to the use of the manifest injustice report prepared by the probation officer. See 133 Wash.2d at 831, 947 P.2d 1199. The prosecutor nevertheless insisted on presenting live testimony. See id. After informing the court that she recommended a standard range confinement pursuant to the plea agreement, the prosecutor called the probation officer who prepared the report. See id. at 833, 947 P.2d 1199. The prosecutor elicited detailed testimony from the probation officer concerning the juvenile's criminal history and the officer's reasons for her recommendation of an exceptional sentence, including the aggravating factors on which she had relied. See id. at 835, 947 P.2d 1199. The State then called the offender's parole officer who testified concerning the offender's institutional problems. See id. Finally, the State gave a summation of the evidence concerning the aggravating factors supporting an exceptional sentence. See id. at 837, 947 P.2d 1199. The supreme court found that the State had violated its duty of good faith by undermining the recommendation and had breached the plea agreement because it was not necessary to repeatedly ask the probation officer to elaborate on the aggravating factors, there was no purpose to be served by the parole officer's testimony other than to "vitiate and contradict the State's standard range recommendation", and "the State's summation of the aggravating factors was a transparent attempt to sustain an exceptional sentence." See id. at 842-43, 947 P.2d 1199.

But Sledge does not address the question presented by Harris. The breach of the plea agreement in Sledge was caused not by the fact that the probation officer made a recommendation different from the prosecutor's but rather by the prosecutor's strong advocacy in favor of an exceptional sentence that undermined the...