State v. Urista

• Decision Date: 01 March 2011
• Docket Number: No. 103,089.,103,089.
• Parties: STATE of Kansas, Appellee, v. Gerardo Lalo URISTA Jr., Appellant.
• Court: Kansas Court of Appeals

244 P.3d 287

STATE of Kansas, Appellee,

v.Gerardo Lalo URISTA Jr., Appellant.

No. 103,089.

Court of Appeals of Kansas.

Dec. 17, 2010.

Review Granted March 1, 2011.

Syllabus by the Court

1. When the State breaches a plea agreement, the defendant is denied due process.

2. When the district court's sentencing decision is purely discretionary and no specific factual findings are required, the State complies with a plea agreement to recommend one of two discretionary courses of action when it recommends that course of action and does not so fully undermine the recommendation that only lip service has been paid to it.

3. On the facts of this case, the State did not breach its plea agreement to recommend concurrent sentences when it not only made that recommendation but also provided detailed information regarding the defendant and the crimes the defendant had committed.

Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant.

Chadwick J. Taylor, district attorney, Natalie Chalmers, assistant district attorney, and Steve Six, attorney general, for appellee.

Before HILL, P.J., PIERRON and LEBEN, JJ.

LEBEN, J.

Gerardo Urista Jr. agreed to plead no contest for 15 separate offenses, including aggravated robbery with the use of a handgun and discharge of a firearm at an occupied building, in exchange for the State's recommendation that these sentences would be run concurrently. This agreement would have substantially limited the time Urista spent in prison. Though the prosecutor recommended concurrent sentences at the sentencing hearing, the prosecutor also made several statements that put Urista in a negative light. After both sides had made their presentations, the district court gave Urista consecutive sentences, resulting in a controlling sentence of 204 months in prison. Had Urista received concurrent sentences, his sentence would have been 102 months, which is the length of the standard guideline sentence on the most serious charge, aggravated robbery.

Urista has appealed primarily on the basis that the State violated the plea agreement by effectively arguing against concurrent sentences. When the State breaches a plea agreement, the defendant is denied due process. State v. Foster, 39 Kan.App.2d 380, Syl. ¶ 1, 180 P.3d 1074, rev. denied, 286 Kan. 1182 (2008). So we must decide whether the State breached its agreement in Urista's case. Whether the Statebreached a plea agreement presents a question of law on which we must decide the matter independently, without any required deference to the district court. See State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009).

Urista relies primarily on our decision in Foster. In that case, the State agreed to recommend probation, but the defendant could only receive probation if the sentencing judge specifically found that probation would best serve the interest of community safety by promoting the defendant's reformation. At sentencing, the prosecutor recommended probation but otherwise provided only negative information about the defendant. Notably, the prosecutor provided no information that could support the findings required for probation but provided lots of information that directly negated the findings the judge would have to make in order to grant probation. In that situation, we found that the prosecutor had breached the plea agreement: "Foster's prosecutor said that she recommended probation, but the words she used do not meet the minimum requirements for a recommendation.... The prosecutor here did not state anything that would cause an objective person to conclude that probation was ... even acceptable." 39 Kan.App.2d at 386-87, 180 P.3d 1074.

Our Supreme Court also recently addressed in Woodward how to determine whether the State has breached a plea agreement. The court emphasized, as we had in Foster, that the State can breach a plea agreement when it effectively undermines a recommendation it had agreed to make:

"The State can breach a plea agreement by effectively arguing against the negotiated sentencing recommendation. [Citation omitted.] However, if the State actually makes the sentence recommendation that it promised, the prosecutor's further comments in support of the recommended sentence do not breach the plea agreement so long as the comments do not effectively undermine the recommendation. [Citations omitted.]" Woodward, 288 Kan. at 300 .

With these rules in mind, let's look at the prosecutor's comments at Urista's sentencing hearing. When the district court asked for the State's sentencing recommendations, the prosecutor opened and closed her remarks by asking the court to follow the plea agreement and impose concurrent sentences, resulting in a 102-month prison sentence. In between those requests, the prosecutor discussed at length Urista's dangerous history as a member of a gang, his history of violating the terms of his prior juvenile adjudications, and the factual details of his crimes. The comments included several about Urista's dangerousness and lack of concern for his victims:

• "I know a lot about Mr. Urista. He's a very dangerous young man. Unless he changes his ways, one of two things is going to happen to him. One, he's going to kill somebody, and he's lucky he didn't do it this time, or somebody's going to kill him."

• "This young man has absolutely no compassion or any kind of sympathy or empathy. He has no feelings about his victims. He just continually and continually does these very violent acts."

• "Your Honor, he may be young in chronological age and maybe even look young physically to you, but I can assure you that this is a young man who is extremely street savvy, and has absolutely no qualms about shooting somebody. He is a menace to this community, he is a danger to this community."

• "He comes from a very good family. His parents ... have tried their best to do what's right for this young man, and he has essentially spit in their face. He has had every opportunity, every opportunity, to do right and he has chosen to do wrong."

On appeal, Urista emphasizes one of the comments we made in Foster: "[W]hen the prosecutor provides negative information that may lead the court to reject the recommended sentence agreed upon in a plea bargain, the prosecutor must also provide some rationale in support of the recommended sentence." 39 Kan.App.2d 380, Syl. ¶ 3, 180 P.3d 1074. But there is a crucial differencebetween Urista's case and Foster. In Foster, the court could give the recommended sentence only if it could make the required finding that probation would best serve the interest of community safety by promoting the defendant's reformation. Our statement in Foster must be read with that context in mind. In Foster, the prosecutor had a duty to provide at least some rationale under which the judge might yet enter the sentence the State had agreed to recommend because specific findings were required to follow the plea agreement and the prosecutor provided substantial and negative information that could lead a reasonable judge to reject the recommended sentence of probation.

Urista's case is different because the district court is not required to give any reason to support its decision to enter either concurrent or consecutive sentences; that decision is simply up to the discretion of the district court. See K.S.A. 21-4720(b); State v. Flores, 268 Kan. 657, 660, 999 P.2d 919 (2000). In this context, the prosecutor must not so undermine the recommendation that only lip service has been paid to it. Woodward, 288 Kan. at 300, 202 P.3d 15; Foster, 39 Kan.App.2d at 387, 180 P.3d 1074. Yet the prosecutor...