State v. Talley
| Decision Date | 08 January 1998 |
| Docket Number | No. 64893-0,64893-0 |
| Citation | 949 P.2d 358,134 Wn.2d 176 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Ronald TALLEY, Petitioner. |
Nielsen, Broman & Associates, James Dixon, Eric Nielsen, Seattle, for petitioner.
Norm Maleng, King County Prosecutor, Erin Riley, Deputy Conty Prosecutor, Seattle, for respondent.
The primary issue presented by this appeal is whether a prosecutor who enters into a plea agreement that requires the State to recommend a standard range sentence, upon the defendant's plea of guilty, breaches that agreement by participating in a court ordered evidentiary sentencing hearing. We hold that the prosecutor's participation, by itself, does not undercut such a plea bargain and thereby violate the plea agreement. Consequently, we affirm the Court of Appeals' decision to remand this case for an evidentiary hearing and resentencing before a judge other than the one who earlier imposed an exceptional sentence on Talley.
Ronald Talley was charged in King County Superior Court with one count of second degree rape. RCW 9A.44.050(1). The charge arose out of an incident at the now defunct Oz nightclub in Seattle, which culminated in D.T. complaining to the Seattle Police Department that Talley forcibly raped her. Talley admitted hitting the woman but claimed that the sexual relations were consensual. The case proceeded to a jury trial, but the trial judge declared a mistrial when the jury indicated that it could not reach a verdict. Thereafter, a deputy prosecutor and Talley entered into a plea bargain agreement in which the deputy agreed, on behalf of the State, to amend the charge against Talley to third degree rape in return for Talley's guilty plea to the amended charge. RCW 9A.44.060. Talley then entered a so-called Alford plea of guilty to the amended charge of third degree rape. 1 In his statement on plea of guilty, Talley indicated he was giving "the court ... permission to review the certification for determination of probable cause and [the] police reports for this plea...." Clerk's Papers at 71.
Following Talley's entry of a guilty plea, a sentencing hearing was conducted before a superior court judge who had not presided at Talley's earlier trial. The victim and Talley, as well as family and friends of both, and members of a rape victims support group, testified at this hearing. Consistent with the terms of the plea agreement the deputy prosecutor recommended a sentence of 12 months, the high end of the standard range. The sentencing judge was also presented with a report from a community correction officer who recommended an exceptional sentence of 24 months. Talley's counsel recommended a sentence within the standard range, but expressed concern at this hearing that the sentencing judge might rely upon facts not stipulated to by Talley, including the allegations contained in the certification for determination of probable cause, and impose an exceptional sentence. The sentencing judge responded, "I am giving an exceptional sentence, and I'll give you a time for an evidentiary hearing." Verbatim Report of Proceedings (Aug. 11, 1995) at 15. The judge then adjourned the hearing and scheduled an evidentiary hearing for a later date.
At an intervening hearing held at Talley's request, Talley's counsel again objected to the sentencing court's consideration of the certification for determination of probable cause, and any other facts not stipulated to, as a basis for imposing an enhanced sentence. Talley's counsel argued that because Talley had entered an Alford plea and there had been no evidentiary hearing, there were no facts before the court upon which it could base an exceptional sentence. Counsel asserted further that there could be no "real facts" hearing because the prosecutor's participation at any such hearing would undermine the plea agreement with Talley. In response, the sentencing judge announced that she was canceling the evidentiary hearing, indicating that she Verbatim Report of Proceedings (Aug. 24, 1995) at 6.
At a later sentencing hearing, the deputy prosecutor again recommended a standard range sentence. Defense counsel reiterated her recommendation for a standard range sentence, noting that she had submitted a presentence memorandum and transcripts of testimony from the aborted trial for the sentencing judge's consideration. After reviewing police reports and the State's certification for determination of probable cause, among other items, the sentencing court imposed an exceptional sentence of 24 months, citing deliberate cruelty, multiple incidents of intercourse, and the negative impact the rape would have on the rape victim as the aggravating circumstances justifying an exceptional sentence. 2 In support of the exceptional sentence the sentencing court entered findings of facts, as follows:
1. On July 30, 1994, while at the Oz nightclub in Seattle, King County, Washington, the defendant approached [D.T.] under the pretext of asking her to dance.
2. The defendant had no intention of dancing with [D.T.], but instead intended to take her to an isolated, dark stairwell within the nightclub.
3. The defendant had been to that stairwell earlier in the evening and knew it was dark and isolated.
4. Once in the stairwell, the defendant demanded oral sex from [D.T.], which she performed without her consent.
5. After the oral rape, the defendant had penile-vaginal intercourse with [D.T.] without her consent.
6. [D.T.] clearly expressed her lack of consent to the defendant, including telling him that she was a virgin.
7. As a result of the vaginal rape, and consistent with her lack of prior sexual intercourse, [D.T.] suffered tears to her vagina.
8. During the course of the rapes, the defendant hit [D.T.] in the head repeatedly and bit her on the chest.
9. During the course of, and after, the rapes, the defendant referred to [D.T.] as a "bitch" and a "whore".
10. After raping [D.T.], the defendant left her in the stairwell nude, hysterical, and bleeding from her vagina.
11. The defendant exhibited an extreme indifference to [D.T.'s] well-being.
12. The defendant's actions were deliberately cruel, exceeding that which was necessary to commit rape.
13. As a result of the rapes, [D.T.] and her family have been extremely traumatized.
14. [D.T.] has lost her ability to trust others, is very fearful, suffers from nightmares, and has required long-term therapy.
15. [D.T.] has found it difficult to impossible to commence a romantic relationship with a man as a result of the rapes.
Talley appealed the exceptional sentence to Division One of the Court of Appeals. He urged the Court of Appeals to reverse the sentence and remand with instructions to impose a standard range sentence. The Court of Appeals reversed the sentence, concluding that the sentencing court had violated the Sentencing Reform Act of 1981 3 by relying on facts that were not acknowledged or admitted by Talley or proven by a preponderance of the evidence at an evidentiary hearing, and consequently "may have prejudged the matter." State v. Talley, 83 Wash.App. 750, 763, 923 P.2d 721 (1996), review granted, 131 Wash.2d 1023, 937 P.2d 1102 (1997). It remanded for an evidentiary hearing and sentencing before a different judge. In addition, it rejected Talley's contention that the State's participation in an evidentiary hearing would constitute a breach of the plea agreement. Finally, it held that deliberate cruelty or multiple acts of rape, if proven at the evidentiary hearing, could form the basis of an exceptional sentence. Talley, 83 Wash.App. 750, 923 P.2d 721. 4
Talley sought review here, claiming that the Court of Appeals erred in concluding that: (1) the State would not violate the plea bargain agreement by participating in an evidentiary hearing; and (2) on resentencing, the sentencing court could consider deliberate cruelty and multiple acts as potential justification for an exceptional sentence. We granted review.
When Talley and the State entered into their plea bargain agreement they formed a contract. State v. Wakefield, 130 Wash.2d 464, 925 P.2d 183 (1996); State v. Arko, 52 Wash.App. 130, 758 P.2d 522 (1988). Pursuant to that agreement, Talley agreed to give up his right to a trial and plead guilty in exchange for the State's agreement to reduce the charge to third degree rape and recommend a standard sentencing range of 6-12 months. 5 Talley kept his end of the bargain by pleading guilty to the amended charge. However, by entering a so-called Alford plea to the charge he did not admit the allegations contained in the certification for probable cause, notwithstanding his stipulation that the plea judge could consider it in determining the validity of the guilty plea. State v. Young, 51 Wash.App. 517, 754 P.2d 147 (1988).
The State is also obligated to adhere to the terms of a plea agreement by recommending the agreed upon sentence. State v. Coppin, 57 Wash.App. 866, 791 P.2d 228, review denied, 115 Wash.2d 1011, 797 P.2d 512 (1990). Although the recommendation need not be made enthusiastically, the prosecutor is obliged to act in good faith, participate in the sentencing proceedings, answer the court's questions candidly in accordance with RPC 3.3 and, consistent with RCW 9.94A.460, not hold back relevant information regarding the plea agreement. 6 State v. Sledge, 133 Wash.2d 828, 947 P.2d 1199 (1997). Although the State does not breach the agreement by not advocating for the sentence beyond making the bargained for recommendation, it has an obligation not to undercut a plea bargain with a defendant. In re Palodichuk, 22 Wash.App. 107, 110, 589 P.2d 269 (1978).
Talley does not suggest that the State has failed to comply...
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