State v. Julian

• Decision Date: 29 August 2000
• Docket Number: No. 17743-2-III.,17743-2-III.
• Citation: 9 P.3d 851,102 Wash.App. 296
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. William Mark JULIAN, Appellant.

9 P.3d 851

102 Wash.App. 296

STATE of Washington, Respondent, v. William Mark JULIAN, Appellant.

No. 17743-2-III.

Court of Appeals of Washington, Division 3, Panel One.

August 29, 2000.

Melvin D. Hoit, Spokane, for Appellant.

Kevin M. Korsmo, Deputy Pros. Atty., Spokane, for Respondent.

KATO, J.

Pursuant to a plea agreement, William M. Julian pleaded guilty to one count of first degree child molestation in exchange for the State's recommendation of the special sexual offender sentencing alternative (SSOSA). Rather than apply SSOSA, the court imposed a standard range sentence. Contending the State violated the plea agreement by failing to recommend SSOSA affirmatively to the court, Mr. Julian appeals. Pro se, he also challenges certain conditions of his community supervision. Except for the condition prohibiting alcohol use, we affirm.

Mr. Julian was charged with first degree molestation of a four-year-old child. In a plea agreement, the State promised to recommend SSOSA in return for his guilty plea.

At the plea hearing on May 29, 1998, the plea agreement was before the court as set forth in the Defendant's Statement on Plea of Guilty. Mr. Julian was represented by counsel. The judge advised Mr. Julian of the rights he was waiving by pleading guilty. The judge explained the possible consequences of the plea, including the standard range sentence, maximum penalty, various costs, and community placement. She also went over DNA blood sampling, sex offender registration, and the implications of a felony guilty plea on future three-strikes proceedings and the right to bear arms.

The judge explained that she had the discretion to allow SSOSA if Mr. Julian was found amenable to treatment. Mr. Julian had already been evaluated for SSOSA, but the results had not yet been received. The judge described the program and informed Mr. Julian of the factors she would consider in determining whether to grant SSOSA, including a strong emphasis on the defendant's ability to pay.

The judge then addressed Mr. Julian with respect to the plea agreement:

THE COURT: All right. Now, your attorney and the prosecuting attorney have discussed this case; and the prosecuting attorney indicated, if you would plead guilty to the crime of Child Molestation in the First Degree, that the State would recommend a [SSOSA] option if you were found amenable to treatment....

Is that the nature of the agreement, [defense counsel]?

[DEFENSE COUNSEL]: It is, Your Honor.

. . . .

THE COURT: Do you understand I don't have to follow that agreement?

THE DEFENDANT: Yes, Your Honor.

The judge invited the prosecutor to address the court. The prosecutor outlined the State's case. The judge accepted the guilty plea.

Sentencing was held on July 15, 1998, before the same judge. Defense counsel made the case for SSOSA. The prosecutor was then called on and said, "I don't have an awful lot to add." The victim's father addressed the court and asked for the high end of the standard range with no work release. The judge explained that the State and Mr. Julian entered into a plea negotiation to recommend SSOSA and asked if the State had discussed it with him. The father said the State had never contacted him about any plea agreement, so he basically did not know what was going on.

The judge gave serious consideration to the SSOSA option. She discussed in great detail the potential benefits and disadvantages of SSOSA. Ultimately, the judge found too many negative considerations.

The presentence investigation report (PSI) declared Mr. Julian amenable to treatment. However, the judge expressed concerns about Mr. Julian's tendency to blame the victim. She attached significance to his failure to complete a drug treatment program imposed as part of some prior deferred prosecution. This caused the judge to question his ability to meet the much more rigorous and prolonged demands of SSOSA.

The judge was also influenced by Mr. Julian's marginal financial situation. He was living with his mother, had a job, and was prepared to take a second job to pay for SSOSA. However, the judge noted that the job was low paying and speculated that, if a family quarrel caused him to leave his mother's house, he would have difficulty keeping up with the costs of the program. The judge rejected Mr. Julian's proposal that he could work two jobs to finance the treatment, pointing out he would not have time to work two jobs and still meet program demands. This was particularly true as Mr. Julian had "multiple treatment issues," including unresolved substance abuse and generalized mental health issues. Finally, the judge found Mr. Julian lacked the requisite family and community support he would need to succeed in SSOSA.

Concluding that both the community and Mr. Julian would benefit more if he underwent a period of confinement during which he would have access to both free treatment and the time to participate fully, the judge imposed a standard range sentence.

The issue is whether the State failed to abide by the plea agreement when the only sentence recommendation by the prosecutor, made after defense counsel had argued for SSOSA, was the statement: "I don't have an awful lot to add."

The State initially points out the defense made no objection below that the prosecutor was not honoring the plea agreement. It claims the issue cannot now be raised for the first time on appeal.

To be considered for the first time on appeal, an alleged error must be a "manifest error affecting a constitutional right." RAP 2.5(a)(3); State v. Scott, 110 Wash.2d 682, 686, 757 P.2d 492 (1988). "Manifest" means the appellant must make a showing of actual prejudice. State v. McFarland, 127 Wash.2d 322, 333-34, 899 P.2d 1251 (1995); Scott, 110 Wash.2d at 688, 757 P.2d 492.

"A plea of guilty constitutes a waiver of significant rights by the defendant, among which are the right to a jury trial, to confront one's accusers, to present witnesses in one's defense, to remain silent, and to be convicted by proof beyond all reasonable doubt." State v. Tourtellotte, 88 Wash.2d 579, 583, 564 P.2d 799 (1977). Therefore, due process demands that the prosecutor adhere to the terms of the plea agreement. State v. Sledge, 133 Wash.2d 828, 839, 947 P.2d 1199 (1997) (citing Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971)). Because Mr. Julian alleges a manifest error affecting a constitutional right, we review the issue he raises for the first time on appeal.

Mr. Julian contends the statement, "I don't have an awful lot to add," is not a recommendation; rather, it is a failure to make any recommendation at all and thus constitutes a breach of the plea bargain contract. He challenges the adequacy of the State's performance of the bargain on statutory as well as constitutional grounds.

Courts should construe statutes so as to give meaning to all the words. Whenever possible, a statute's meaning must be derived from the language itself without judicial construction or interpretation. State v. Riles, 135 Wash.2d 326, 340, 957 P.2d 655 (1998).

RCW 9.94A.090(1) provides in relevant part:

If a plea agreement has been reached by the prosecutor and the defendant ... they shall at the time of the defendant's plea state to the court, on the record, the nature of the agreement and the reasons for the agreement.

The superior court rules also require that "[t]he nature of the agreement and the reasons for the agreement shall be made a part of the record at the time the plea is entered." CrR 4.2(e). The parties complied with the statute and court rule here. The record shows the court was fully apprised of the nature and terms of the plea agreement as well as the reasons for it.

Standing alone, a plea bargain has no constitutional significance. It is a "mere executory agreement" until it is confirmed by the judgment of the court. Mabry v. Johnson, 467 U.S. 504, 507, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984).

A plea bargain is no more than a proposal, an offer which the State can revoke until the moment when the defendant enters a plea, or has acted detrimentally in reliance on the offer. State v. Bogart, 57 Wash.App. 353, 356, 788 P.2d 14 (1990). The bargain is confirmed by the defendant's entering a guilty plea on the record before the court. Only then does the State become obligated to comply with the terms of the agreement. However, it is then required to fully comply. Id. at 356, 788 P.2d 14; State v. Hall, 104 Wash.2d 486, 490, 706 P.2d 1074 (1985).

The written plea agreement is constitutionally optional, not the performance of the promise. Neither RCW 9.94A.090 nor CrR 4.2 requires the plea agreement to be in writing, but both do require that the agreement be stated on the record to the court. State v. Jones, 46 Wash.App. 67, 70, 729 P.2d 642 (1986). The State fulfills its duty under the plea agreement by simply making the promised recommendation. State v. Coppin, 57 Wash.App. 866, 874, 791 P.2d 228, review denied, 115 Wash.2d 1011, 797 P.2d 512 (1990).

The test for whether the State's performance of a plea agreement meets constitutional muster is whether the prosecutor contradicts, by word or conduct, the State's recommendation. State v. Talley, 134 Wash.2d 176, 187, 949 P.2d 358 (1998). The State may not undercut the bargain. Sledge, 133 Wash.2d at 840,947 P.2d 1199; In re Personal Restraint of Palodichuk, 22 Wash. App. 107, 589 P.2d 269 (1978). The conduct is evaluated by an objective standard, regardless of either the prosecutor's motivations or justifications for the failure to perform. State v. Jerde, 93 Wash.App. 774, 780, 970 P.2d 781,review denied, 138 Wash.2d 1002, 984 P.2d 1033 (1999).

Mr. Julian contends the prosecutor acted in bad faith, in an attempt to avoid difficulties with his resolution of the case after he failed to communicate with the victim's family. The State disputes this characterization of the motivation. If the prosecutor's failure to perform constituted conduct...