State v. Jerde

• Decision Date: 29 January 1999
• Docket Number: No. 22610-3-II,22610-3-II
• Citation: 93 Wn.App. 774,970 P.2d 781
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Thorsten Martin JERDE, Appellant.

Page 774

93 Wn.App. 774

970 P.2d 781

STATE of Washington, Respondent, v. Thorsten Martin JERDE, Appellant.

No. 22610-3-II.

Court of Appeals of Washington Division 2.

Jan. 29, 1999.

Patricia Anne Pethick, Tacoma, for Appellant(Court Appointed).

Barbara L. Corey-Boulet, Pierce County Deputy Pros. Atty., Tacoma, for Respondent.

BRIDGEWATER, C.J.

Thorsten M. Jerde appeals his exceptional sentence of 497 months' incarceration after his guilty plea to second degree murder. We hold that by emphasizing aggravating factors in the murder at sentencing, without prompting by the sentencing court, the prosecutor breached the plea agreement and undercut the sentencing recommendation of 346 months. We reverse and remand for Jerde to make an election, before a different judge, as to whether he desires withdrawal of his plea of guilty or specific performance of the agreement.

In December 1996, Scott Claycamp, a 29-year-old caregiver for the disabled, was murdered while at work in a private residence ¹ in Lakewood. Intruders entered the house under the pretext of asking for directions and one intruder, while brandishing a gun, ordered Claycamp to lie on the ground. Even though Claycamp complied with the order and offered no resistance, the intruder shot Claycamp in the back of his head, killing him. Claycamp's client and friend of five years, Dennis Robertson, witnessed the murder from his bed in the room. The intruders stole a lock-box from a back room and a bag of valuables attached to one of the wheelchairs.

Jerde was one of the intruders. He was let into the house through the back door after Gordon Crockett, the shooter, gained entry through the front. Jerde supplied the .357 caliber revolver to Crockett, and Jerde stole the lock-box from the house. Five persons in all, including Jerde, were arrested and charged with Claycamp's murder. All five entered into plea bargains with the State.

The police discovered that codefendant Roberta Elmore hatched the scheme to burglarize the house, motivated partially by spite. A few weeks before Claycamp's murder, Elmore had been working for an "escort service" when one of Claycamp's clients sought to hire Elmore for "sexual services." Upon arriving at the house, Elmore declined to perform, but unsuccessfully argued that she was entitled to the money anyway. A short time later, Elmore enlisted the help of the other defendants to burglarize the home. Crockett and two others, who decided not to participate in the crime, staked out the house the night before the murder and discussed the planned burglary. Jerde was not present at the stakeout. But Jerde admitted to driving by the residence once with Elmore and Crockett and discussing the burglary weeks before the murder.

The State offered Jerde a plea bargain: If Jerde pled guilty to second degree murder, the State would dismiss the remaining charges in the first amended complaint and recommend 346 months' incarceration, a mid-range sentence for an offender with Jerde's criminal history. Jerde agreed to the offer. The trial court accepted Jerde's guilty plea and set a hearing to sentence all five defendants. A presentence investigator filed a report recommending that Jerde serve an exceptional sentence of 688 months' incarceration. Jerde filed a written objection to the presentence report, in which he requested an evidentiary hearing for certain factual claims in the report and disputed both the factual and legal bases for the recommended exceptional sentence.

At the sentencing hearing, the court heard victim impact statements from several people, including Greg Claycamp, the decedent's brother, and Dennis Robertson, who had witnessed the murder. At the conclusion of the statements, one of two prosecutors addressed the court and proceeded to outline the legal and factual grounds upon which the court could rely in imposing an exceptional sentence. ²

At Jerde's individual sentencing, a second prosecutor addressed the court. While the second prosecutor announced the State's agreed recommendation for 346 months' incarceration, she reemphasized the aggravating circumstances that justified imposition of an exceptional sentence. ³

Jerde's attorney objected to the prosecutor's comments, challenged the asserted bases for imposing an exceptional sentence, and renewed the request for an evidentiary hearing. The court heard a statement by Jerde, then imposed an exceptional sentence of incarceration for 497 months, and set a hearing for entry of findings of fact and conclusions of law.

At this final hearing, the trial court adopted four factors as supporting Jerde's exceptional sentence:

the crime involved a high degree of sophistication and planning;

the crime was an invasion of the zone of privacy of the victims, because it was committed in their home;

Jerde knew the particular vulnerability of the occupants;

Jerde reasonably should have foreseen that the crime would have an extraordinary impact on the particularly vulnerable victims.

The State enters into a contract with a defendant when it offers a plea bargain and the defendant accepts. See, e.g., State v. Talley, 134 Wash.2d 176, 949 P.2d 358 (1998); State v. Sledge, 133 Wash.2d 828, 947 P.2d 1199 (1997); State v. Coppin, 57 Wash.App. 866, 791 P.2d 228, review denied, 115 Wash.2d 1011, 797 P.2d 512 (1990). Because a defendant gives up important constitutional rights by agreeing to a plea bargain, the State must adhere its terms by recommending the agreed upon sentence. Talley, 134 Wash.2d at 183, 949 P.2d 358; In re Palodichuk, 22 Wash.App. 107, 109-10, 589 P.2d 269 (1978).

Although the recommendation need not be made enthusiastically, the prosecutor is obliged to act in good faith, participate in the sentencing proceedings, answer the court's questions candidly in accordance with [the duty of candor toward the tribunal] and, consistent with RCW 9.94A.460, not hold back relevant information regarding the plea agreement.

Talley, 134 Wash.2d at 183, 949 P.2d 358. At the same time, the State is obligated not to undercut the plea bargain "explicitly or by conduct evidencing an intent to circumvent the terms of the plea agreement." Sledge, 133 Wash.2d at 840, 947 P.2d 1199 (citing inter alia, Palodichuk, 22 Wash.App. 107, 589 P.2d 269.) As we have said in Palodichuk, 22 Wash.App. at 109-11, 589 P.2d 269, and the Supreme Court emphasized in Talley, 134 Wash.2d at 183-84, 949 P.2d 358, prosecutorial conduct is very important to the integrity of the plea bargaining process, and a prosecutor must adhere to the terms of the plea agreement and avoid tainting the sentencing process. The test is whether the prosecutor contradicts, by word or conduct, the State's recommendation for a standard range sentence. Talley, 134 Wash.2d at 187, 949 P.2d 358.

An appellate court applies an objective standard to determine whether the State has breached a plea agreement " 'irrespective of prosecutorial motivations or justifications for the failure in performance.' " Palodichuk, 22 Wash.App. at 110, 589 P.2d 269 (quoting United States v. Brown, 500 F.2d 375, 378 (4th Cir.1974)).

In Talley, the court determined that the State could participate in a "real facts" evidentiary hearing to determine whether an exceptional sentence was justified without necessarily undercutting its plea agreement. But the court acknowledged that during such an evidentiary hearing, a prosecutor "could easily undercut the plea agreement by placing emphasis on the evidence that supports findings that aggravating factors are present." Talley, 134 Wash.2d at 186, 949 P.2d 358.

In Sledge, the Supreme Court concluded that a prosecutor had undercut the State's plea agreement by: calling a probation counselor to testify about the "manifest injustice report"; questioning the counselor extensively about the factors that caused her to recommend an exceptional sentence; calling the juvenile's parole officer; and presenting a lengthy summary of the aggravating factors. 133 Wash.2d at 842-43, 947 P.2d 1199.

In Coppin, we held that a prosecutor had not breached the plea agreement by submitting an unfavorable probation report and honestly responding to the trial court's question about whether the record would support an exceptional sentence. 57 Wash.App. at 875, 791 P.2d 228. The prosecutor had recommended a sentence at the high end of the standard range and briefly explained why the State was interested in reaching a plea bargain. Coppin, 57 Wash.App. at 868-69, 791 P.2d 228. In response to the court's inquiry, the prosecutor stated that he would have sought an exceptional sentence were he not bound by the agreement. Coppin, 57 Wash.App. at 869, 791 P.2d 228.

In Palodichuk, the State initially fulfilled its plea obligation by making the agreed recommendation to the sentencing judge. But we concluded that by expressing reservations about the State's recommendation, the prosecutor had breached and undercut the plea bargain. Palodichuk, 22 Wash.App. at 110-11, 589 P.2d 269.

Coppin is not analogous. There, the trial judge invited the prosecutor to comment on whether an exceptional sentence was warranted, and the prosecutor responded with candor. But the prosecutor in Coppin acted in good faith by explaining how the plea bargain inured to the State's benefit and the prosecutor was, on balance, more faithful to the plea agreement. 57 Wash.App. at 868-70, 791 P.2d 228. In addition, the State in Coppin recommended a high-end sentence and the prosecutor's comments were consistent with explaining why a high-end sentence was justified. 57 Wash.App. at 868-69, 791 P.2d 228.

Similarities appear between Sledge and this case: (1) both prosecutors unnecessarily commented on a written presentence report that was already before the court; (2) the prosecutors underscored aggravating factors; and (3) the prosecutors maintained that the State was adhering to its plea agreement but clearly behaved otherwise. The court in Sledge found the actions of ...