State v. Townsend

• Decision Date: 06 February 2018
• Docket Number: No. 34984-5-III,34984-5-III
• Parties: STATE of Washington, Respondent, v. Caleb G. TOWNSEND, Appellant.
• Court: Washington Court of Appeals

409 P.3d 1094

STATE of Washington, Respondent,

v.Caleb G. TOWNSEND, Appellant.

No. 34984-5-III

Court of Appeals of Washington, Division 3.

FILED FEBRUARY 6, 2018

Andrea Burkhart, Two Arrows, PLLC, Po Box 1241, Walla Walla, WA, 99362-0023 for Appellant

Brian Clayton O'Brien, Larry D. Steinmetz, Spokane County Prosecuting Attorney Office, 1100 W Mallon Ave. Spokane, WA, 99260-2043 for Respondent

PUBLISHED OPINION

Pennell, J.¶ 1 A criminal defendant faced with allegations of violating the terms of a plea agreement is entitled to an evidentiary hearing. This evidentiary hearing right is rooted in the constitutional right to due process. As such, it cannot be waived by silent acquiescence. Instead, the State has a heavy burden of proving a defendant has intelligently, knowingly, and voluntarily waived the right to a hearing.

¶ 2 The trial court found Caleb Townsend in violation of his plea agreement without first holding an evidentiary hearing. Although Mr. Townsend did not affirmatively request an evidentiary hearing, he also did not say or do anything to suggest he agreed with the court's summary procedure. To the contrary, Mr. Townsend protested his innocence. Under the circumstances presented in this case, the State has not proved Mr. Townsend waived his hearing rights. Mr. Townsend's judgment and sentence is therefore reversed, and this matter is remanded for an evidentiary hearing.

FACTS

¶ 3 Caleb Townsend pleaded guilty to two felony charges pursuant to a plea agreement. The agreement held considerable value for Mr. Townsend, as the prosecutor agreed to recommend a sentence well below the standard range. For his part, Mr. Townsend agreed to abide by all release conditions, including a requirement that he "[c]ommit no law violations" while awaiting sentencing. Clerk's Papers at 29. The agreement specified that if Mr. Townsend failed to live up to his side of the bargain, the parties would jointly recommend a sentence of 61 months' incarceration, the high end of the standard range.

¶ 4 Subsequent to his plea, Mr. Townsend was arrested on new felony allegations. According to a probable cause affidavit, Mr. Townsend admitted to at least some law violations during a post-arrest police interview.¹ A warrant was then issued for Mr. Townsend's violation of his release terms.

¶ 5 Mr. Townsend's case proceeded to sentencing. The prosecutor began his remarks by stating Mr. Townsend had breached the parties' plea agreement and, as a result, the State recommended 61 months' imprisonment. In response to defense counsel's argument that proof of Mr. Townsend's breach could only be sustained through evidence of a conviction, the prosecutor claimed the court could go forward on the existing record. The prosecutor had earlier argued the court only needed to find a law violation by a preponderance of the evidence and that this determination had already been made when the court issued a warrant for Mr. Townsend's release violations.²

¶ 6 The court ruled that because the probable cause affidavit stated Mr. Townsend had admitted to some law violations, there was adequate proof Mr. Townsend had breached the plea agreement. Prior to making this ruling, the court did not hear from any witnesses. No evidence was entered into the record. And Mr. Townsend was not invited to present evidence or testimony in his defense.

¶ 7 The court then continued to sentencing. Both parties made sentencing recommendations and, at the conclusion of counsels' comments, Mr. Townsend was invited to speak. Mr. Townsend described his work in the community and stated:

I'm not—I'm not guilty of these crimes, Your Honor, and I know I can—I can—that's what they're claiming, and I know it's not—it's not proof in any way to state that, but I wanted to say my piece and say that I'm not—I'm not a hardened criminal. I'm not—I don't know. I don't feel that I deserve the 61 months, Your Honor, and I don't feel I'm guilty of these crimes.

I'd like to state that I did hire private counsel for those other charges to be dealt with. I think that's it, Your Honor. Thank you.

Verbatim Report of Proceedings (Dec. 21, 2016) at 28.

¶ 8 The trial court responded that it was "impressed" with Mr. Townsend's demeanor and that "[h]e's certainly entitled to his opinion on whether or not there's sufficient proof here. Nonetheless, the court has made the ruling on the plea agreement, and in fact there has been a breach of that." Id. No further inquiry was made. Mr. Townsend appeals.

ANALYSIS

¶ 9 A plea agreement is a contract with constitutional implications. In re Pers. Restraint of Lord , 152 Wash.2d 182, 188-89, 94 P.3d 952 (2004). If a defendant breaches a plea agreement, the State may rescind it. State v. Thomas , 79 Wash.App. 32, 36-37, 899 P.2d 1312 (1995). However, before doing so the State must prove breach by a preponderance of the evidence. In re Pers. Restraint of James , 96 Wash.2d 847, 850-51, 640 P.2d 18 (1982) ; State v. Roberson , 118 Wash.App. 151, 158-59, 74 P.3d 1208 (2003), overruled in part on other grounds by

State v. Hughes , 154 Wash.2d 118, 110 P.3d 192 (2005). Due process requires the State's proof be presented during an evidentiary hearing, at which the defendant must have the opportunity to call witnesses and contest the State's allegations. James , 96 Wash.2d at 850-51, 640 P.2d 18 ; Roberson , 118 Wash.App. at 158-59, 74 P.3d 1208.

¶ 10 Mr. Townsend argues the trial court improperly relieved the prosecution of its plea agreement obligations without either holding an evidentiary hearing or obtaining a valid waiver of his right to a hearing. Our review of these contentions is de novo. State v. Nelson , 158 Wash.2d 699, 702, 147 P.3d 553 (2006) ; State v. Vasquez , 109 Wash.App. 310, 319, 34 P.3d 1255 (2001), aff'd , 148 Wash.2d 303, 59 P.3d 648 (2002). As set forth below, we agree with Mr. Townsend.

The court did not conduct an evidentiary hearing

¶ 11 The trial court proceedings did not bear any of the hallmarks of an evidentiary hearing. No evidence was admitted. No testimony was taken. The State did not even make a record of the identity of the law enforcement officer who apparently signed Mr. Townsend's probable cause affidavit. While the requirements of due process are flexible, Mr. Townsend's minimal due process right to " ‘be heard in person and to present witnesses and documentary evidence,’ " Gagnon v. Scarpelli , 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (quoting Morrissey v. Brewer , 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), was not recognized prior to the trial court's violation determination.)

¶ 12 It is no accident that the trial court proceedings failed to resemble an evidentiary hearing. None was intended. The prosecution presented its case under the assumption that the court's arrest warrant determination conclusively established Mr. Townsend's release violation. This approach was mistaken. The only type of evidence that can constitute conclusive proof of violation conduct is a felony judgment and sentence. See ER 803(22) ; Seattle-First Nat'l Bank v. Cannon , 26 Wash.App. 922, 615 P.2d 1316 (1980). If a felony conviction is obtained by a guilty verdict or unreserved plea, due process does not require additional proof of a defendant's violation conduct. See Clark v. Baines , 150 Wash.2d 905, 84 P.3d 245 (2004) ; United States v. Williams , 741 F.3d 1057 (9th Cir. 2014). However, an arrest warrant is not a felony conviction. Prior to the issuance of an arrest warrant, a defendant is not afforded the right to exercise any due process rights. As such, an arrest warrant is not a substitute for the due process right to an evidentiary hearing.

The State has not proved a valid waiver

¶ 13 A defendant can waive the due process right to an evidentiary hearing. But because the hearing right is constitutional, waiver will not be presumed. James , 96 Wash.2d at 851, 640 P.2d 18. Silent acquiescence is not sufficient proof of waiver, even when an individual is represented by counsel. Id . ; State v. Stegall , 124 Wash.2d 719, 730, 881 P.2d 979 (1994). Instead, the "State carries a heavy burden of demonstrating a voluntary, knowing, and intelligent waiver." James , 96 Wash.2d at 851, 640 P.2d 18.

¶ 14 Mr. Townsend never explicitly stated a desire to waive his due process hearing rights. To the contrary, the subject of an evidentiary hearing never came up because the court never offered the opportunity for an evidentiary hearing, as required by our case law. Id . at 850, 640 P.2d 18 (a defendant is to "be given an opportunity to call witnesses and have other due process rights"); Roberson , 118 Wash.App. at 158-59, 74 P.3d 1208 ("the trial court must conduct an evidentiary hearing, at which the State must prove by a preponderance of the evidence that the defendant failed to perform his part of the agreement") (emphasis added).

¶ 15 Nor is there evidence of "an informed acquiescence" to the summary procedure used by the court.

To prove informed acquiescence, the State would need to point to evidence in the record that counsel had consulted with Mr. Townsend about his hearing rights prior to standing silent. Stegall , 124 Wash.2d at 731, 881 P.2d 979. No such evidence exists.

¶ 16 Without proof of Mr. Townsend's personal expression of waiver or informed acquiescence, the State cannot establish waiver. Id . at 730-31, 881 P.2d 979.³ Silent acquiescence is simply insufficient. Id . While early cases from our Supreme Court suggested a defendant's failure to demand his or her constitutional rights might constitute waiver, those cases are "out of step with current case law, which requires that the government prove that a waiver of a constitutional right ... is knowing and voluntary." State v. Iniguez , 167 Wash.2d 273, 294 n.11, 217 P.3d 768 (2009).

¶ 17 Even if we were writing from a clean slate, this would be an inappropriate case to find waiver through acquiescence. When he was invited to speak at sentencing, Mr. Townsend contested the State's...