State v. Ratley

• Decision Date: 09 July 1993
• Docket Number: No. 68,474,68,474
• Citation: 253 Kan. 394,855 P.2d 943
• Parties: STATE of Kansas, Appellant, v. Gary M. RATLEY, Appellee.
• Court: Kansas Supreme Court

Page 943

855 P.2d 943

253 Kan. 394

STATE of Kansas, Appellant, v. Gary M. RATLEY, Appellee.

No. 68,474.

Supreme Court of Kansas.

July 9, 1993.

Syllabus by the Court

1. When the district court has made findings of fact and conclusions of law, the function of this court on appeal is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the district court's conclusions of law.

2. Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated in another way, "substantial evidence" is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.

3. K.S.A. 22-2905(2), which provides that when a defendant is bound over to the district court by the magistrate following a preliminary hearing, the prosecuting attorney shall file an information in the office of the clerk of the district court, is directory rather than mandatory.

4. The county or district attorney is the representative of the State in criminal proceedings. He or she has the authority to dismiss any charge or reduce any charge.

5. In a criminal action where the State and the defendant entered into an agreement which specified the single charge which would be filed against the defendant, and the defendant fully performed his obligation under the agreement, the record is examined and it is held the district court did not err or abuse its discretion in: (1) finding that a valid agreement existed; (2) finding that the State had breached the agreement in filing an alternative count information; and (3) ordering specific performance of the agreement by striking the alternative count which was in violation of the terms of the agreement.

Kyle G. Smith, Asst. Atty. Gen., argued the cause and was on the brief for appellant.

Dennis W. Moore of Moriarty, Erker & Moore, Overland Park, argued the cause and was on the brief for appellee.

McFARLAND, Justice:

This is an appeal by the State from the order of the district court dismissing one count of an information.

On July 5, 1990, agents from the Kansas Bureau of Investigation (KBI), Anderson County Sheriff's Office, and Bureau of Alcohol, Tobacco, and Firearms executed a consent search on defendant Gary M. Ratley's farm. They seized growing marijuana plants and packages of marijuana and arrested the defendant.

KBI Special Agent Tom Williams questioned the defendant. Craig Cole, Anderson County Attorney, authorized Williams to enter into an agreement with the defendant on behalf of the State. The agreement was prepared by Williams and signed by himself and the defendant before a notary public. The agreement provides:

"In return for being charged with one count of possession with intent to sell, marijuana, I agree to tell investigating officers the truth concerning my involvement in illegal activities. I understand that if I do not tell the truth concerning my involvement or do not assist in the recovery and return of stolen items the agreement is void and the County Attorney or his designate is free to charge me with any and all counts they deem necessary. I also understand this waiver of additional charges is for felonies of the C level or below."

The defendant filed a motion to enforce the agreement, contending the filing of an information charging the defendant with possession of marijuana with intent to sell and, alternatively, with the cultivation of marijuana violated the agreement. The district court sustained the motion, making findings of fact and setting forth its rationale as follows:

"1. On July 5, 1990, the defendant was charged with possession of marijuana with intent to sell, in violation of K.S.A. 65-4127b(b)(3), pursuant to a complaint signed and filed by Craig Cole, Anderson County Attorney.

"2. The defendant and the State entered into a written agreement on July 6, 1990, in which the State promised to 'waive additional charges'....

"3. The agreement was entered into by K.B.I. Agent, Thomas Williams, on behalf of the State of Kansas with the full knowledge and authority of the Anderson County Attorney, Craig Cole.

"4. In exchange for the State charging him only with one (1) count of possession of marijuana with the intent to sell the same, the defendant gave a truthful, incriminating statement to the State and otherwise cooperated with the State. It is not disputed that the defendant has fully complied with the terms of the charge agreement.

"5. Effective July 1, 1990, K.S.A. 65-4127b(b)(3) had been amended, making it unlawful to cultivate marijuana. 1990 Session Laws of Kansas, chapter 100, Sec. 9, pg. 729.

"The agreement was drafted by the State. It provides for waiver of additional charges of the 'C Level or below'. Cultivation of marijuana is a C felony and is therefore, specifically within the terms of the charge agreement. Cultivation of marijuana was proscribed effective July 1, 1990; therefore, it is presumed to have been within the contemplation of the parties that the defendant could not be charged with cultivation under the terms of the agreement.

"6. A preliminary examination was conducted November 13, 1990, before District Magistrate Phillip Fromme. County Attorney Cole requested that Judge Fromme consider whether there had been cultivation and advised Judge Fromme that the County Attorney would be filing an amended charge. At the conclusion of the preliminary hearing, Judge Fromme found 'probable cause to believe that the defendant committed the offense as amended to include (cultivation) as part of the charge under K.S.A. 65-4127b(b)(3)'.

"7. On November 15, 1990, the State filed an Information charging the defendant in Count I with possession of marijuana with intent to sell and in alternate Count II, with feloniously cultivating five (5) or more plants, which contained tetrahydrocannabinol....

"8. Judge Fromme bound over the defendant on the felony charge of cultivating marijuana, although the Complaint did not charge him with cultivation. Judge Fromme's action was proper pursuant to K.S.A. 22-2902. State v. Pioletti, 246 Kan. 49, 61, 785 P.2d 963 (1990).

"9. However, the State in filing its Information ... breached its agreement with the defendant.

"10. The defendant argues that he is entitled to specific performance of the charge agreement; the State counters that the appropriate remedy for breach of the agreement is suppression of incriminating statements made by the defendant.

"11. Specific performance of a prosecutor's plea agreement has been recognized as an appropriate remedy. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). In the Santobello case, the prosecutor inadvertently reneged on an agreement to make no recommendation as to the sentence, which should be imposed following a guilty plea; the Supreme Court remanded the case to the State Court for determination whether the circumstances of the case required that there be specific performance of the plea agreement, in which case the defendant should be resentenced by a different judge or whether, in the view of the State Court, the circumstances required giving the defendant the opportunity to withdraw his guilty plea. The Court held that '(plea bargaining) must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be a part of the inducement or consideration, such promise must be fulfilled'. 404 U.S. 257 at 262, 92 S.Ct. 495 at 499, 30 L.Ed.2d 427 at 433.

"12. In Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984), the Supreme Court held that a criminal defendant's inability to specifically enforce a prosecutor's proposed plea bargain was without constitutional significance. However, the basis for the finding was the peculiar facts of the case, which are distinguishable from the case at bar. In Mabry the defendant, who was represented by counsel, negotiated the plea agreement which was withdrawn by the prosecution before it was effected and presented to the Court. The defendant ultimately accepted a prosecutor's second offer for plea agreement, which included a 21 year sentence to be served consecutively to previous sentences. Under the particular facts of Mabry, since the defendant accepted the second plea offer, the Supreme Court found that the plea was not induced in any way by the first plea offer, which had been withdrawn.

"13. Mabry did not overrule Santobello. Indeed, the Supreme Court discussed Santobello and distinguished the facts in Mabry from Santobello. '(Johnson's) plea was in no sense induced by the prosecutor's withdrawn offer; unlike Santobello, who pleaded guilty thinking he had bargained for a specific prosecutorial sentencing recommendation which was not ultimately made, at the time (Johnson) pleaded guilty, he knew the prosecutor would recommend a 21 year consecutive sentence.' 467 U.S. 504 at 510, 104 S.Ct. 2543 at 2548, 81 L.Ed.2d 437 at 444.

"14. In the case at bar, Mr. Ratley did not enter into a plea agreement, so the facts are distinguishable from both Santobello and Mabry in that respect. However, he did enter into a charge agreement upon which he relied and pursuant to which he was induced to give incriminating statements and cooperate with the State's investigation.

"15. Here, as in Santobello, the interests of justice and appropriate recognition of the duties of the prosecution, in relation to promises made, will best be served by specifically enforcing the charge agreement.

"IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the defendant's motion to enforce charge agreement be sustained and alternate Count I of the State's Information should be...