State v. Jones
| Decision Date | 12 June 2015 |
| Docket Number | 104,516. |
| Parties | STATE of Kansas, Appellee, v. Tiffany A. JONES, Appellant. |
| Court | Kansas Supreme Court |
Peter Maharry, of Kansas Appellate Defender Office, argued the cause, and Theresa L. Barr, of the same office, was on the brief for appellant.
Julie A. Koon, assistant district attorney, argued the cause, and Nola Tedesco Foulston, former district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with her on the briefs for appellee.
Tiffany A. Jones claims the prosecutor in her aggravated robbery case breached a plea agreement obligating the State to join in her request for probation. A divided Court of Appeals panel has twice held the prosecutor did not breach the agreement. State v. Jones, No. 104,516, ––– Kan.App.2d ––––, 2011 WL 6309613 (Kan.App.2011) (unpublished opinion) (Jones I ), summarily reversed and remanded for reconsideration on May 20, 2013; State v. Jones, No. 104,516, ––– Kan.App.2d ––––, 2013 WL 5610136 (Kan.App.2013) (unpublished opinion) (Jones II ), review granted August 28, 2014. A majority of this court agrees with Jones and remands her case to the district court for resentencing. We hold the State's breach under the circumstances was one of omission—a failure to ensure the sentencing court was aware of the probation recommendation the State obligated itself to make.
Jones was charged with a 2008 aggravated robbery in violation of K.S.A. 21–3427. She agreed to plead guilty as charged. In exchange, the prosecutor agreed to “join in [Jones'] request for a downward dispositional departure to probation and [to] recommend supervision by Community Corrections Field Services” if Jones' criminal history score was a G or lower. Otherwise, the prosecutor would recommend the sentencing court impose the high number in the Kansas sentencing guidelines grid box.
The plea agreement further stated that if her criminal history score was G or lower, Jones was “not free to argue for alternative dispositions, but may cite additional bases in support of a departure.” The agreement did not address what the State would do if Jones argued an additional reason to depart.
Jones pleaded guilty to aggravated robbery as agreed. During the plea hearing, the district court indicated it had a copy of the plea agreement and the prosecutor accurately summarized its terms for the record. After the hearing, the agreement was filed with the district court as an unidentified attachment to a document entitled “Defendant's Acknowledgement of Rights and Entry of Plea.”
Jones' criminal history score was determined to be I, which triggered the State's obligation to join in her request for probation. The presentence investigation PSI report did not reference the plea agreement's terms.
At the sentencing hearing, a different judge presided and the State was represented by a different prosecutor. The judge stated he had read Jones' departure motion and then heard argument. The judge made no explicit reference to the plea agreement's terms, and it is not clear from the appellate record whether the judge had the plea agreement before him at the time of sentencing.
Defense counsel informed the sentencing court there was a plea agreement and recited some of the facts surrounding the aggravated robbery. Defense counsel then indicated Jones had contacted correctional counseling and arranged to participate in an anger management program. Counsel then stated: “[A]t this point we believe that, not only I think the [S]tate is in agreement, that there are substantial and compelling reasons why probation should be granted in this case.”
In support of departure, defense counsel recited the following: (1) community based resources would promote offender reaffirmation; (2) Jones was not the sole actor; (3) there were no weapons used; (4) the victim suffered “only minor injuries,” noting the victim was not hospitalized; and (5) other factors cited in the written motion. The first and second factors were identified as having the State's support. The third and fourth were not part of the agreed-upon rationale, but the agreement did permit their addition. Defense counsel did not reference the last agreed-upon rationale, i.e., a nonprison sentence would serve community safety interests through offender reformation. The written departure motion was not included in the appellate record.
The sentencing judge asked the prosecutor whether the State had anything for the record. In responding, the prosecutor did not confirm defense counsel's statement that the State joined in the departure motion or otherwise inform the court that the State recommended departure to probation. The prosecutor initially stated, “Judge ... I don't have a recommendation outside the plea agreement,” then immediately moved to have the court acknowledge the victim who wanted to speak. The following colloquy occurred next:
The judge reviewed photographs of the victim's injuries, indicating that defense counsel and the State disagreed about the extent of the injuries.
The sentencing judge denied Jones' dispositional departure motion, citing the nature of the crime, Jones' character and condition, public safety, and the crime's seriousness. The judge sentenced Jones to 59 months' imprisonment, the mid-range term in the applicable grid box, and 36 months' postrelease supervision. Jones appealed to the Court of Appeals.
Before the panel, Jones argued the prosecutor violated the plea agreement by not joining in her downward departure motion. She further argued the State's comments to the district court only paid lip service to the plea agreement, which specifically required the State to actively join her request for probation and recommend supervision by Community Corrections Field Services.
A divided Court of Appeals panel held the prosecutor did not violate the plea agreement. Jones I, 2011 WL 6309613, at *4. The majority described the prosecutor's comments as “close to recommending nothing,” but it held the prosecutor's comments that there was no recommendation “ ‘outside [of] the plea agreement’ ” and “ ‘I'm sort of bound by the plea agreement ... to follow the plea agreement that was negotiated in this case’ ” were adequate to fulfill the agreement's requirement for the State to recommend probation. 2011 WL 6309613, at *4. Judge G. Gordon Atcheson disagreed. He would have held that “the prosecutor had an obligation to articulate the State's position in support of the agreement generally and of its component parts,” and he further characterized the prosecutor's comments as inadequate “ ‘lip service’ ” because it was a message “of unspoken disdain,” not “good-faith support.” 2011 WL 6309613, at *7 (Atcheson, J., dissenting).
Jones petitioned for this court's review, which we granted. We summarily reversed and remanded for reconsideration in light of two recent plea-agreement-breach decisions this court had decided after the Jones I panel's decision. See State v. Peterson, 296 Kan. 563, 293 P.3d 730 (2013) ; State v. Urista, 296 Kan. 576, 293 P.3d 738 (2013).
On remand, Jones did not file a supplemental brief, but the State did. The same panel reconvened, and again the same majority determined the prosecutor did not violate the plea agreement. The majority held: “[T]he [sentencing] court was aware of the parties' recommendations in the agreement and that the State had agreed to a departure and the grounds to support a departure.” Jones II, 2013 WL 5610136, at *5. The majority concluded the prosecutor sufficiently fulfilled the State's promise to recommend the agreed-upon sentence and join in Jones' request for a downward dispositional departure. It further noted the prosecutor did not “make any comments aimed at defeating or making an end-run around Jones' departure motion.” 2013 WL 5610136, at *5.
Judge Atcheson again dissented. He disputed whether the record established that the sentencing court was aware of the State's recommendation because: (1) It was not included in the PSI report; (2) the defendant's departure motion was not in the appellate record allowing appellate review; (3) the plea agreement itself was not entered as a distinct document in the district court's file; and (4) the district court did not make a direct reference to the agreement's terms. 2013 WL 5610136, at *9 (Atcheson, J., dissenting). He would have held the prosecutor breached the agreement by failing to affirmatively join the departure motion because the prosecutor only generally acknowledged the plea agreement existed. 2013 WL 5610136, at *8. Judge Atche...
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