State v. Jones

• Decision Date: 11 October 2013
• Docket Number: No. 104,516.,104,516.
• Citation: 310 P.3d 1078
• Parties: STATE of Kansas, Appellee, v. Tiffany A. JONES, Appellant.
• Court: Kansas Court of Appeals

310 P.3d 1078

STATE of Kansas, Appellee,

v.Tiffany A. JONES, Appellant.

No. 104,516.

Court of Appeals of Kansas.

Oct. 11, 2013.

Appeal from Sedgwick District Court; Joseph Bribiesca, Judge.

Theresa L. Barr, of Kansas Appellate Defender Office, for appellant.

Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, former district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before LEBEN, P.J., PIERRON and ATCHESON, JJ.

MEMORANDUM OPINION

PIERRON, J.

The Kansas Supreme Court remanded this case for reconsideration of our previously issued opinion in light of its recent decisions in State v. Peterson, 296 Kan. 563, 293 P.3d 730 (2013), and State v. Urista, 296 Kan. 576, 293 P.3d 738 (2013). In Peterson, the Supreme Court found the prosecutor breached the plea agreement by going beyond mere correction of misrepresentations and made comments aimed at the defendant's likelihood of recidivism. 296 Kan. at 573–74. In Urista, the prosecutor breached the plea agreement by making unprovoked and “particularly grave” comments regarding her personal opinion of the defendant. 296 Kan. at 593–94.

In our case, Tiffany Jones entered a plea to aggravated robbery. The plea agreement provided the State would agree to recommend the high number in the applicable guidelines sentencing grid box and, if Jones had a criminal history of G or lower, join in her request for a downward dispositional departure to probation. Jones criminal history was I. At sentencing the prosecutor told the court, “I don't have a recommendation outside the plea agreement.” The prosecutor also contradicted defense counsel's statement that there were minor injuries, informing the court there were injuries and offering to show the court pictures. The sentencing court declined to impose a downward dispositional departure and instead imposed the presumptive guidelines sentence.

On appeal Jones argued the State had breached the plea agreement by failing to join in her request for a downward departure sentence. We found the prosecutor had not breached the plea agreement by his lackluster support for the plea agreement recommendations and the sentencing court was aware the State had agreed to a departure and the grounds for the request. We further found the prosecutor's correction of defense counsel's statement that the victim had suffered minor injuries and offer to show the sentencing court pictures did not undermine the agreement. State v. Jones, No. 104,516, 2011 WL 6309613 (Kan.App.2011) (unpublished opinion), reversed and remanded May 20, 2013 ( Jones I ).

We have considered the Supreme Court's decisions in Peterson and Urista and find these cases distinguishable from the facts of our case. Accordingly, we affirm.

Factual and Procedural Overview

We recounted the following factual and procedural background in Jones I.

“Jones, also known as Maria Coleman, entered a plea to aggravated robbery in violation of K.S.A. 21–3427, a severity level 3 person felony. Jones entered the plea agreement in exchange for the following:

‘a. The State will recommend that the Court impose the high number in the applicable sentencing guidelines grid box.

‘b. Contingent on Defendant's criminal history being “G” or lower, State will join in Defendant's request for a downward dispositional departure to probation and will recommend supervision by Community Corrections Field Services.

‘c. The agreed joint basis for dispositional departure will include: the fact that Defendant was not the sole actor in this case; the joint request of the parties; that appropriate treatment programs exist and are available that are more likely to be more effective in reducing offender recidivism, including substance abuse treatment, anger management, and mental health services; and that a non-prison sanction will serve community safety interests by promoting offender reformation.

‘d. If Defendant's criminal history is higher than “G” the State will recommend the presumption be followed.’

“The presentence investigation report indicated Jones' criminal history score was I.

“At sentencing, defense counsel advocated for a departure sentence. As part of the argument, counsel noted the ‘victim suffered only minor injuries as a result of the beating that she took. I don't believe there was any hospitalization required as a result of that. But I think the court should consider that factor.’

“In response to the district court's request for the State's comment, the prosecutor stated, ‘Judge, you know, I don't have a recommendation outside the plea agreement.’ When asked again if the State had anything to say, the following comments were made:

“ ‘[Prosecutor]: Not really, Judge. Her criminal history came back as an I.

“In looking at the plea agreement, Judge, they did anticipate that she could be possibly a G or lower. Frankly, you know, the word, there were injuries, there were photographs that would say [the victim] did not have injuries, I think, is a misstatement. But I'm sort of bound by the plea agreement, Judge, when she is a G or lower, to follow the plea agreement that was negotiated in this case. “.... So, as far as that goes, Judge, about the only thing I could add to statements, I could show you injuries if that would be helpful to the court. So, given that, Judge, I have nothing to add.'

“The district court indicated it wanted to see the pictures ‘since there is not an agreement as to the extent of the injuries.... And the court doesn't see that as going outside the plea agreement, there is just a disagreement as to the extent of the injuries.’

“The victim was present at the sentencing hearing and gave substantial testimony concerning the trauma her young children suffered after witnessing the crime. Additionally, the victim testified that her injuries were significantly more than minor, contrary to defense counsel's earlier representation.

“The district court imposed a mid-range guidelines sentence of 59 months in prison. The court denied the motion for departure stating, ‘As far as the motion to depart, the court, when it weighs the gravity of the offense with what's been advocated on her behalf this morning, the court is unable in good conscious to find substantial and compelling reasons to depart. The motion is denied.’ “ 2011 WL 6309613, at *1–2.

A majority of the Jones I court found the prosecutor had not breached the plea agreement and affirmed. 2011 WL 6309613, at *4–5. On May 20, 2013, the Supreme Court granted Jones' petition for review, summarily reversed our decision, and remanded the case to us for reconsideration in light of Peterson and Urista.

Standard of Review

An allegation the State breached a plea agreement presents a question of law. Thus, this court exercises unlimited review. Peterson, 296 Kan. at 567.

Peterson provides us with further considerations.

“A plea agreement is a contract between the State and the accused, and the exchanged promises must be fulfilled by both parties. See Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). ‘An expectation inherent in all plea agreements is that each party will honor the terms of the agreement.’ Woodward, 288 Kan. at 300 (citing State v. Boley, 279 Kan. 989, 992, 113 P.3d 248 [2005] ). The State's breach of a plea agreement denies the defendant due process. See Santobello, 404 U.S. at 265–67 (Douglas, J., concurring); State v. Wills, 244 Kan. 62, 65, 765 P.2d 1114 (1988) (citing Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 [1984] );State v. Foster, 39 Kan.App.2d 380, Syl. ¶ 1, 180 P.3d 1074,rev. denied 286 Kan. 1182 (2008). ‘If the State fails to perform its obligations under a bargained plea agreement, then the court must decide whether justice requires that the promise be fulfilled or whether the defendant should have the opportunity to withdraw his or her plea.’ Woodward, 288 Kan. 297, Syl. ¶ 2.

“ ‘[A]pplication of fundamental contract principles is generally the best means to fair enforcement of a plea agreement, as long as courts remain mindful that the constitutional implications of the plea bargaining process may require a different analysis in some circumstances.’ State v. Copes, 290 Kan. 209, 217, 224 P.3d 571 (2010).” Peterson, 296 Kan. at 567.

Peterson

In Peterson, the Supreme Court found the State had violated the plea agreement that in part provided the State would not object to Peterson's motion for dispositional departure to probation. The State also agreed to remain silent at sentencing unless there were misstatements of fact.

In the first of two sentencing hearings, the district court found Peterson to be a persistent sex offender. At that hearing, Peterson called a clinical psychologist who testified Peterson would be a good candidate for probation. Peterson allowed the prosecutor to cross-examine the psychologist. The prosecutor focused her questioning on information Peterson had not provided to the psychologist in rendering his opinion. In response to Peterson's suggestion that the prosecutor was violating the plea agreement, the prosecutor argued:

“ ‘[I]t does show Mr. Peterson wasn't being honest with the evaluator about what his involvement was in this particular case or in his other case, and I think that should be considered by the court that he cannot or will not address his looking at child pornography or desire to look at child pornography. That's all I have to say.’ “ 296 Kan. at 566.

At the second sentencing hearing, the district court denied Peterson's dispositional departure motion and sentenced him to 52 months in prison with lifetime postrelease supervision.

On appeal to our court, the Peterson panel found the case was similar to that in State v. Woodward, 288 Kan. 297, 302, 202 P.3d 15 (2009) (the State is not required to ignore defense's attempts to minimize the defendant's culpability), and held the prosecutor was not required to stand silent at sentencing. The Supreme Court granted...