State v. Harrison

• Decision Date: 23 January 2003
• Docket Number: No. 72332-0.,72332-0.
• Citation: 61 P.3d 1104,148 Wash.2d 550
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Richard HARRISON, Petitioner.

61 P.3d 1104

148 Wash.2d 550

STATE of Washington, Respondent, v. Richard HARRISON, Petitioner.

No. 72332-0.

Supreme Court of Washington, En Banc.

Argued November 21, 2002.

Decided January 23, 2003.

Sharon Blackford, Washington Appellate Project, Seattle, for Petitioner.

Norm Maleng, King County Prosecutor, Melinda Young, James Whisman, Andrea Vitalich, Deputy County Prosecutors, for Respondent.

MADSEN, J.

We granted review of this case to determine whether, when the State breaches a plea agreement and the defendant is granted the remedy of specific performance, the sentencing court on remand is bound by the original sentencing court's determination to impose an exceptional sentence.

Petitioner Harrison pleaded guilty after reaching an agreement with the State to treat two of Harrison's prior convictions as the same criminal conduct, resulting in an offender score of seven. At sentencing, the State breached its agreement by recommending a sentence based on an offender score of eight rather than a score of seven. The trial court accepted the State's characterization of Harrison's history and imposed what amounted to an exceptional sentence. The Court of Appeals reversed the original sentence and granted Harrison the remedy of specific performance. Accordingly, the case was remanded for a new sentencing hearing. State v. Harrison, noted at 100 Wash.App. 1049, 2000 WL 557655 (2000) (Harrison I). At the second sentencing hearing, the trial court agreed with the State's recommendation that Harrison's prior convictions constituted the same criminal conduct and that his offender score was seven. The trial court declined, however, to consider Harrison's argument against an exceptional sentence, holding that it was bound by either the "law of the case" doctrine or collateral estoppel from reconsidering that issue. Harrison appealed, and the Court of Appeals affirmed. State v. Harrison, noted at 110 Wash.App. 1017, 2002 WL 171131 (2002) (Harrison II).

We hold that the remedy of specific performance entitles the defendant to a reversal of the original sentence and a de novo sentencing hearing in which the State will abide by its plea agreement. The trial court, furthermore, is free to exercise its discretion regarding imposition of an exceptional sentence. We reverse the Court of Appeals and remand for resentencing.

PROCEDURAL HISTORY

The State charged Harrison with two counts of custodial assault.¹ In exchange for a guilty plea, the State agreed to recommend two consecutive terms of 43 months based on an offender score of seven. An offender score of seven yields a standard sentencing range of 33-43 months for each offense.

At Harrison's first sentencing hearing, the State did not abide by the plea agreement. The State had counted two of Harrison's prior convictions as the same criminal conduct, but the Department of Corrections (DOC) counted them separately to arrive at an offender score of eight rather than seven. An offender score of eight raises the standard sentencing range for each crime to 43-57 months. The State adopted the DOC's calculation, abandoning its plea agreement, and recommended an exceptional sentence consisting of two consecutive terms of 57 months rather than 43 months. The trial court agreed with the State's offender score calculation and additionally found that the facts warranted the imposition of an exceptional sentence of consecutive 57-month terms for each count of custodial assault.²

Harrison appealed, arguing that the State breached its plea bargain. In an unpublished opinion, Division I of the Court of Appeals reversed. Harrison I, slip op. at 7, 2000 WL 557655, *3. Harrison requested the remedy of "specific performance" which required the State on remand to make its promised recommendation. Id. at 3, 2000 WL 557655, *1 (citing State v. Miller, 110 Wash.2d 528, 536, 756 P.2d 122 (1988)). He argued that such remedy required a new sentencing hearing where the State would abide by its agreement to recommend a sentence based upon an offender score of seven. The State disagreed, contending that "specific performance" required it to recommend sentences of 43 months under a "correct" offender score of eight. The Court of Appeals responded that "[t]he State's arguments overlook the fact that there is nothing `incorrect' about ... an offender score of 7." Id. at 4, 2000 WL 557655, *2.

At the second sentencing hearing the State made its promised recommendation. Harrison did not present any new facts but argued against the imposition of an exceptional sentence. The trial court declined to consider Harrison's argument, holding that the judge's findings with respect to the exceptional sentence imposed in the first sentencing hearing were the "law of the case." The judge explained:

In my view, those are law of the case for me.

The only thing that has changed now is the difference in the offender score, and it's being sent back to me on remand to correct that mistake, so I'm abiding by what [the judge] did.

I will not change anything that she did in terms of what she stated as the bases for the exceptional sentence.

I'm not saying I agree with them, but I'll let them stand, and the Court of Appeals can decide whether or not they're appropriate or not.

Verbatim Report of Proceedings (Nov. 9, 2000) at 28-29. The judge then imposed an exceptional sentence of consecutive 43-month terms based on an offender score of seven, clarifying in a motion for reconsideration that the theory underlying his refusal to rule on the exceptional sentence was either the doctrine of the "law of the case" or collateral estoppel.

Harrison once again appealed, and the Court of Appeals affirmed the trial court in an unpublished opinion. Harrison II, slip op. at 1, 2002 WL 171131, *1. The court ruled that on remand the trial court was estopped from deciding the issue of whether an exceptional sentence was appropriate. Relying on State v. Collicott, 118 Wash.2d 649, 827 P.2d 263 (1992), the court ruled that "[o]nce the trial court has considered the propriety of an exceptional sentence, it is estopped from revisiting the issue at a later sentencing hearing." Harrison II, slip op. at 3, 2002 WL 171131, *1. The Court of Appeals also held that the "breach of a plea agreement does not mean that Harrison is entitled to relitigate every issue already decided by the court, particularly where the issue he wants to revisit is unrelated to the breach." Id. at 6, 2002 WL 171131, *2.

This court granted Harrison's petition for review at 147 Wash.2d 1002, 53 P.3d 1008 (2002).

ANALYSIS

Plea agreements are contracts, and the law imposes upon the State an implied promise to act in good faith. State v. Sledge, 133 Wash.2d 828, 839, 947 P.2d 1199 (1997). Because plea agreements concern fundamental rights of the accused, they also implicate due process considerations that require 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)); United States v. Harvey, 791 F.2d 294, 300 (4th Cir.1986) (the defendant's underlying contract right is constitutionally based and therefore reflects concerns that differ fundamentally from and run wider than those of commercial contract law).

This court has recognized two possible remedies where the State breaches a plea agreement. Miller, 110 Wash.2d at 531, 756 P.2d 122. The defendant has the choice to either withdraw his plea and be tried anew on the original charges or receive specific performance of the agreement. Id. Because a plea agreement is analogous to a contract, the defendant is entitled to a remedy which restores him to the position he occupied before the State breached. State v. James, 35 Wash.App. 351, 355, 666 P.2d 943 (1983). Furthermore, "the defendant's choice of remedy controls, unless there are compelling reasons not to allow that remedy." Miller, 110 Wash.2d at 535, 756 P.2d 122.

In this case, the Court of Appeals granted Harrison's request for specific performance. Harrison I, slip op. at 7, 2000 WL 557655, *3. That remedy requires the State to make its promised recommendation at a new sentencing hearing. In re Pers. Restraint of Powell, 117 Wash.2d 175, 199, 814 P.2d 635 (1991) (addressing the definition of specific performance of plea agreement where the Indeterminate Sentence Review Board would decide appropriate minimum sentence); see also State v. Van Buren, 101 Wash.App. 206, 218, 2 P.3d 991 (2000); State v. Henderson, 99 Wash.App. 369, 379, 993 P.2d 928 (2000). While the State must uphold its end of the plea agreement on remand, the court retains the ultimate decision on sentencing. Powell, 117 Wash.2d at 200, 814 P.2d 635.

Washington cases generally follow the United States Supreme Court's recommendation that the petitioner should be resentenced by a different judge when specific performance is the elected remedy for the State's breach. Santobello, 404 U.S. at 263,92 S.Ct. 495; see Sledge, 133 Wash.2d 828,947 P.2d 1199; State v. Van Buren, 112 Wash.App. 585, 49 P.3d 966 (2002); State v. Williams, 103 Wash.App. 231, 239, 11 P.3d 878 (2000); James, 35 Wash.App. at 356,666 P.2d 943.

The question in this case is whether the remedy of specific performance is limited by collateral estoppel or the "law of the case" doctrine. In Harrison I, the court granted the remedy of specific performance which required a reversal of Harrison's prior sentence and remand for resentencing in which the State would recommend a sentence based on an offender score of 7. Harrison I, slip op. at 7, 2000 WL 557655, *3. Harrison claims that such a remedy entitles him to a de novo sentencing hearing, placing him in the same position that he occupied before the State breached the plea agreement. James, 35 Wash.App. at 355, 666 P.2d 943. He argues that the trial court erred in holding that it was bound by decisions made at the first sentencing hearing and that he has yet to have the one fair sentencing hearing...