State v. Van Buren

• Decision Date: 16 June 2000
• Docket Number: No. 24308-3-II.,24308-3-II.
• Citation: 2 P.3d 991,101 Wash.App. 206
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Tina Louise VAN BUREN, Appellant.

2 P.3d 991

101 Wash.App. 206

STATE of Washington, Respondent, v. Tina Louise VAN BUREN, Appellant.

No. 24308-3-II.

Court of Appeals of Washington, Division 2.

June 16, 2000.

Linda J. King (Court Appointed), Steilacoom, for Appellant.

John W. Ladenburg, Pros. Atty., John Christopher Hillman, Pierce County Deputy Pros. Atty., Tacoma, for Respondent.

SEINFELD, J.

Tina Louise Van Buren pleaded guilty to murder in the first degree pursuant to a plea agreement in which the State promised to recommend a standard range sentence of 292 months. But at sentencing, the State explained that there was evidence to support an exceptional sentence. The trial court then imposed an exceptional sentence of 400 months, citing reasons mentioned by the State. Van Buren appealed to this court, alleging, among other things, that the State breached the plea agreement. Because Van Buren has alleged a manifest error affecting a constitutional right, we review her claim notwithstanding her failure to seek relief below. Further, because this claim has merit, we vacate the sentence and remand with directions to allow Van Buren either to withdraw her guilty plea and proceed to trial or to have a new sentencing hearing at which the State performs as it promised in the plea agreement.

FACTS

Van Buren participated with her boyfriend, Keith Ruch, and another young man in a prolonged assault and the eventual murder of Van Buren's friend, Holly Miller. The assault began at Van Buren's apartment where Ruch hit Miller with a baseball bat and, according to Ruch, Van Buren "smacked" Miller "a couple of times."

Ruch then bound Miller and forced her into the trunk of a car. Van Buren placed a pillow and blanket inside the trunk with Miller. The group then drove to a rural location where Van Buren waited while the two men led Miller away from the car. Ruch then stripped Miller of her clothing and stabbed her repeatedly. Because Miller "just wouldn't die," Ruch beat her to death with a baseball bat or shovel handle and then buried her in a shallow grave.

Van Buren later admitted to a friend that she had been involved in a murder. The friend told the police and the State subsequently charged Van Buren in the alternative with premeditated murder in the first degree or felony murder in the first degree, each with a deadly weapon enhancement. Following plea negotiations, Van Buren agreed to plead guilty, pursuant to State v. Newton, 87 Wash.2d 363, 552 P.2d 682 (1976), to a charge of premeditated first degree murder without a deadly weapon enhancement, and the State agreed to recommend a mid-standard range sentence of 292 months.

In addition to the State's recommendation, the sentencing court had before it a defense brief describing the facts from Van Buren's point of view and requesting a sentence of 20 years, the mandatory minimum. There also was a presentence investigation report that recommended an exceptional sentence of twice the high end of the standard range— 666 months. The presentence report writer argued that Van Buren's lack of remorse, lack of regard for human life, and the deliberate cruelty surrounding the crime warranted an exceptional sentence.

At the beginning of the sentencing proceedings, the court noted that it had received "a fair amount of material" from the victim's family. It then asked the State if it had anything to add. After making some preliminary remarks, the State volunteered: "And then if the Court at some point wants to address specifically the issues with regards to the aggravating circumstances that is being requested by the presentence report writer."

Defense counsel responded: "Your Honor, I think I addressed most of them in my brief. The fact that I don't think that there is aggravating circumstances as legally contemplated, I think I adequately addressed that in my brief unless the Court has any questions about that."

After the victim's family addressed the court, the State again volunteered:

Your Honor, the Court has the State's recommendation as listed in the plea form. If the Court is considering an exceptional sentence, as indicated by the presentence report writer, there are various grounds the Court can consider, including the deliberate cruelty to the victim, the lack of remorse on Tina VanBuren's behalf, and certainly the impact of the crime on the victim's family.

Later in the proceeding, the court asked Van Buren if she had anything to say. Van Buren's response: "That I apologize for what happened, but I didn't kill her. I tried to help her. I'm sorry. I never wanted this to happen. That's all[,]" prompted the following argument from the State:

Your Honor, Ms. VanBuren is charged with first degree premeditated murder with the use of a knife and/or bat that is in the amended information. Ms. VanBuren's comment that she tried to help Tina — excuse me. That she tried to help Holly in this case is without merit, and there's no evidence to substantiate this claim that she tried to help her. In fact, she went along with the attempt and placed her in the vehicle, in the trunk of the vehicle. Ms. VanBuren has shown absolutely no remorse for this crime.

The sentencing court then ruled:

There's no question in a murder like this, in my mind, that the standard range is not appropriate for the reasons that have been presented to me. That wouldn't make sense. That wouldn't be fair. The long duration that this assault, kidnapping, and then murder took place, the deliberate cruelty deserves more than that. The effect that this has on the victim's family and on the community that I've already talked about, the fact that there are numerous people who question your remorse in this particular crime.

I've heard from you today. When I looked at all the other materials prior to this time I really questioned whether you really got it or not. And it's for those reasons that I am going to impose an exceptional sentence of 400 months in this particular case.

Van Buren did not seek specific enforcement of the plea agreement nor move to set aside the plea pursuant to CrR 4.2(f) and CrR 7.8. Instead, she appealed directly to this court, arguing that the State breached the plea agreement by improperly emphasizing aggravating factors in support of an exceptional sentence.

I. APPEALABILITY

The State argues that Van Buren, by failing to object or to move to set aside the plea below, waived her argument that the State breached the plea agreement. Alternatively, it contends that the prosecutor acted appropriately.

This court generally will not review an assignment of error raised for the first time on appeal. RAP 2.5(a); State v. Williams, 137 Wash.2d 746, 749, 975 P.2d 963 (1999); State v. Scott, 110 Wash.2d 682, 685-86, 757 P.2d 492 (1988). But we will review an issue if it pertains to a manifest error affecting a constitutional right. RAP 2.5(a)(3); Williams, 137 Wash.2d at 749, 975 P.2d 963; State v. McFarland, 127 Wash.2d 322, 333, 899 P.2d 1251 (1995); Scott, 110 Wash.2d at 686, 757 P.2d 492. "[A]n error is manifest if it results in actual prejudice to the defendant." State v. WWJ Corp., 138 Wash.2d 595, 602-03, 980 P.2d 1257 (1999).

"[A] defendant gives up important constitutional rights by agreeing to a plea bargain[.]" State v. Jerde, 93 Wash.App. 774, 780, 970 P.2d 781 (citing State v. Talley, 134 Wash.2d 176, 183, 949 P.2d 358 (1998); In re Palodichuk, 22 Wash.App. 107, 109-110, 589 P.2d 269 (1978)), review denied, 138 Wash.2d 1002, 984 P.2d 1033 (1999). "Because [plea agreements] concern fundamental rights of the accused, constitutional due process considerations come into play." State v. Sledge, 133 Wash.2d 828, 839, 947 P.2d 1199 (1997).¹ A breach of a plea agreement is a violation of due process. See Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984)

("when the prosecution breaches its promise with respect to an executed plea agreement, the defendant pleads guilty on a false premise, and hence his conviction cannot stand"); see also State v. Wakefield, 130 Wash.2d 464, 472, 925 P.2d 183 (1996) (breach of plea agreement is criteria for determining whether "manifest injustice" mandates withdrawal of guilty plea under CrR 4.2(f)).

Thus, Van Buren raises an issue of constitutional magnitude. Further, as we discuss below, it appears likely that the State's comments affected the court's sentencing decision. Thus, she also has shown actual prejudice. See WWJ Corp., 138 Wash.2d at 603, 980 P.2d 1257 (the appellate court previews "the merits of the claimed constitutional error to see if the argument has a likelihood of succeeding").

We note that Division One of this court has held that a failure to move to withdraw a guilty plea or seek specific enforcement bars a defendant from raising the issue on appeal. State v. Giebler, 22 Wash.App. 640, 642-43, 591 P.2d 465 (1979). But we do not find Giebler to be applicable here.

First, Giebler neither mentions RAP 2.5(a)(3) nor discusses the constitutional rights a defendant forfeits when he enters into a plea agreement. Further, the cases that the Giebler court relied upon are silent regarding any doctrine comparable to RAP 2.5(a)(3). People v. Barajas, 26 Cal.App.3d 932, 103 Cal.Rptr. 405, 408 (1972); Barnhart v. State, 34 Md.App. 632, 368 A.2d 1124, 1126 (1977). Finally, the Giebler court seemingly reasoned that there was no breach in that case because the defendant's commission of another offense while awaiting sentencing justified the prosecutor's retreat from the promised sentencing recommendation. 22 Wash.App. at 643, 591 P.2d 465. Consequently, we consider Van Buren's appeal.²

II. Breach of the Plea Agreement

A plea agreement is a contract between the State and the defendant. Sledge, 133 Wash.2d at 838-39, 947 P.2d 1199. Basic contract principles of good faith and fair dealing impose upon the State an implied promise to act in good faith in plea agreements. Sledge, 133 Wash.2d at 838-39, 947 P.2d 1199. Due process concerns reinforce the...