State v. Sanchez

Decision Date09 May 2002
Docket Number No. 70442-2., No. 70331-1
Citation146 Wash.2d 339,46 P.3d 774
PartiesSTATE of Washington, Respondent, v. Librado SANCHEZ, Petitioner. State of Washington, Respondent, v. Mark Harris, Petitioner.
CourtWashington Supreme Court

Suzanne Elliott, Gregory Link, Washington Appellate Project, Seattle, for Petitioner.

John Knodell, Grant County Prosecutor, Thomas Verge, Skagit County Prosecutor, Erik Pedersomn, Deputy Prosecutor, for Respondent.

BRIDGE, J.

We decide whether in each of these consolidated cases, the petitioner should be permitted to withdraw his plea of guilty because he entered it in exchange for a promise from the prosecutor to recommend a particular sentence to the sentencing judge. At the sentencing hearing, a person other than the prosecutor recommended a longer sentence than had been agreed to in the plea agreement. We hold that since neither of these people, Sanchez's investigating officer (IO) nor Harris's community corrections officer (CCO), was a party to the plea agreement, no breach of the plea agreement occurred. The Court of Appeals is affirmed in both cases.

FACTS
Sanchez

In 1991, Sanchez, who was 21 years old at the time, served as youth pastor to the church attended by 12-year-old CG and her family. In February or March of 1991, Sanchez kissed CG after they attended a movie together. For about eight months, the sexual contacts escalated, first to masturbation and oral sex, and eventually to two instances of penile-vaginal intercourse. The relationship terminated after CG's father saw Sanchez kissing her. CG disclosed the sexual contacts to her parents when she was 16, but did not report them to the police until October 10, 1997, when she was 19. In January 1998, Sanchez was arrested and ultimately charged. He then agreed to plead guilty to three counts of child molestation in the second degree and entered pleas accordingly. Pursuant to the plea agreement, the prosecutor agreed to make no sentencing recommendation at the sentencing hearing.

Prior to sentencing, Dr. Jerry Miller evaluated Sanchez for a Special Sex Offender Sentencing Alternative (SSOSA). Dr. Miller diagnosed Sanchez as suffering from sexual arousal to children, referring to a pattern of sexual contacts with younger children beginning when Sanchez was seven years old. Dr. Miller recommended that the judge impose a SSOSA sentence, stating his opinion that Sanchez would be amenable to treatment and was at a low risk to reoffend. Denise Hollenbeck, the CCO from the Department of Corrections, prepared a presentence report recommending a 75-month sentence, to be partially suspended under a SSOSA. At the sentencing hearing, the prosecutor made no sentencing recommendation. He then advised the judge that CG, her parents, and Sergeant Dave Ruffin, the 10, wished to make statements to the court. The victim and her parents argued against a SSOSA on the grounds that the child had been severely traumatized, Sanchez had violated a position of trust to commit the crime, and indications of deceit in the report suggested a likelihood of reoffending. Sergeant Ruffin also argued against a SSOSA. In his opinion, Sanchez's acts "violated everything, the trust and what religion stood for," and were "as bad as if somebody drug someone in the bushes and violently raped them." 1 Ruffin stated his belief that Sanchez had lied to Dr. Miller to get a SSOSA recommendation, and said that the judge should not give a SSOSA sentence. The judge then imposed a sentence, within the standard range, of 70 months in prison, stating that he did not believe a SSOSA was appropriate absent a perversion. The Court of Appeals affirmed.

Harris

Between October and December 1997, Mark Harris, who was in his mid-forties, performed oral sex on his 14-year-old nephew BJ on three or four different occasions. In December 1997, when BJ's parents became suspicious, they broke off the relationship between Mark and BJ. A year later, BJ informed his mother of what had happened. Harris was arrested on January 21, 1999. He was initially charged with third degree rape of a child. On May 13, 1999, as a result of a plea agreement, he entered a plea of guilty to an amended charge of communicating with a minor for immoral purposes, contrary to RCW 9.68A.090. The prosecutor agreed to recommend a 29-month sentence, which was at the high end of the standard range. The standard range sentence was 22 to 29 months.

Pursuant to the plea agreement, the prosecutor recommended a 29-month sentence at the sentencing hearing. The CCO recommended an exceptional sentence of 60 months in his presentence report and spoke in support of that recommendation at the sentencing hearing. The court found the aggravating circumstances suggested by the CCO applicable, and sentenced Harris to 60 months. The Court of Appeals affirmed.

Procedural Issues

Initially we must decide whether either petitioner may appeal his sentence since neither raised any objection to his sentence to the trial court. Next, we determine whether Sanchez may appeal his sentence, a sentence within the standard sentencing range.

The State asserts that unless a defendant moves to withdraw his plea or asks the court to reconsider his sentence, he cannot complain on appeal that the State failed to abide by the agreement. State v. Giebler, 22 Wash.App. 640, 642-3, 591 P.2d 465 (1979). The petitioners counter that failure to adhere to a plea agreement involves a manifest violation of a constitutional right, which the defendant may raise for the first time on appeal. RAP 2.5(a)(3); State v. Scott, 110 Wash.2d 682, 688, 757 P.2d 492 (1988).

In Giebler, the prosecutor initially agreed as part of a plea bargain to recommend eight months in jail followed by probation. Giebler, 22 Wash.App. at 642, 591 P.2d 465. At sentencing, the prosecutor recommended that the defendant be "sentenced to the Department of Institutions," and said he could not recommend a deferred sentence because the defendant had committed further offenses in the interim. The defendant failed to object. Id. Under those facts, Division One held that the defendant; had lost his right to raise the issue. Id. at 642-43, 591 P.2d 465.

Prior to Giebler, the United States Supreme Court had held that due process requires a prosecutor to adhere to the terms of a plea agreement. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Similarly, this court had held that when the State breaches a plea agreement, it "undercuts the basis for the waiver of constitutional rights implicit in the plea." State v. Tourtellotte, 88 Wash.2d 579, 584, 564 P.2d 799 (1977). Subsequent cases have attempted to reconcile Giebler with these cases by narrowing its holding to the specific facts of the case. See, e.g., State v. Van Buren, 101 Wash.App. 206, 2 P.3d 991

(distinguishing Giebler on the grounds that the prosecutor may have been justified in changing his recommendation because of the defendant's further offenses, and pointing out that the case did not address RAP 2.5(a)(3) issues), review denied, 142 Wash.2d 1015, 16 P.3d 1265 (2000). See also State v. Walsh, 143 Wash.2d 1, 17 P.3d 591 (2001) (finding Giebler unpersuasive because it does not address RAP 2.5(a)(3) and because it relies on out-of-state cases having different rules for raising issues on appeal). We now expressly disapprove of the decision in Giebler to the extent that it conflicts with our jurisprudence on the due process right to enforce a plea agreement.

When a defendant claims constitutional error, the court previews the merits of the claimed error to determine whether the argument is likely to succeed. State v. WWJ Corp., 138 Wash.2d 595, 603, 980 P.2d 1257 (1999). The error is considered "manifest" under RAP 2.5(a)(3) if the facts necessary to review the claim are in the record and the defendant shows actual prejudice. State v. McFarland, 127 Wash.2d 322, 333, 899 P.2d 1251 (1995). In both these cases, all relevant facts are in the record. Actual prejudice is shown by the fact that neither Sanchez nor Harris was sentenced according to the plea agreement. Because failure to adhere to a plea bargain implicates due process, this court can accept review under the "manifest error affecting a constitutional right" standard.2

In Sanchez's case, the State raises an additional procedural issue. Under the Sentencing Reform Act of 1981, chapter 9.94A RCW, a sentence within the standard range generally is not appealable. Former RCW 9.94A.210(1) (2000). However, the statute does not prevent an appellant from challenging the procedure used by the court to impose a standard range sentence. State v. Ammons, 105 Wash.2d 175, 183, 713 P.2d 719; 718 P.2d 796, cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986). Sanchez challenges the procedure; namely, whether the court erred in allowing the IO to provide an argument regarding sentencing that was at variance with that which the prosecutor was bound to by the plea agreement. Therefore, there is no statutory bar to the appeal.

We hold that review is appropriate in both cases under the "manifest error affecting a constitutional right" standard, and is not barred in Sanchez's case by former RCW 9.94A.210(1).

ANALYSIS

In each of these cases the prosecutor made the recommendation at sentencing to which he agreed in the plea agreement. The petitioners do not allege that the prosecutors breached the agreement by their own words or conduct.3 Rather, the issue presented is whether the recommendations made by others to the judge at the sentencing hearing breached the agreement. In effect, the petitioners claim that a plea agreement binds not only the individual prosecutor but also any other employee of the State of Washington or, indeed, in the case of the IO in Sanchez any government employee, even one in a separate department. A plea agreement is like a contract and is analyzed according to...

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