State v. Wills, s. 61335

• Decision Date: 09 December 1988
• Docket Number: Nos. 61335,61336 and 61337,s. 61335
• Citation: 244 Kan. 62,765 P.2d 1114
• Parties: STATE of Kansas, Appellee, v. Jimmy D. WILLS, Appellant.
• Court: Kansas Supreme Court

Page 1114

765 P.2d 1114

244 Kan. 62

STATE of Kansas, Appellee, v. Jimmy D. WILLS, Appellant.

Nos. 61335, 61336 and 61337.

Supreme Court of Kansas.

Dec. 9, 1988.

Syllabus by the Court

1. A plea agreement that is ambiguous must be strictly construed in favor of the defendant.

2. A plea agreement reasonably susceptible to different interpretations is ambiguous.

3. Where, pursuant to a plea agreement, the defendant enters a plea of guilty, the State's promise to make a favorable sentence recommendation binds the State at a subsequent hearing on the defendant's motion to modify sentence, absent language in the plea agreement limiting the State's promise to the original sentencing hearing.

Lucille Marino, Asst. Appellate Defender, argued the cause, and Benjamin C. Wood, Chief Appellate Defender, was with her on the brief, for appellant.

Mona Furst, Asst. Dist. Atty., argued the cause, and Clark V. Owens, Dist. Atty., and Robert T. Stephan, Atty. Gen., was with her on the brief, for appellee.

ALLEGRUCCI, Justice:

The defendant, Jimmy D. Wills, appeals from a judgment denying his motion to withdraw his plea of guilty to three counts of theft and two counts of burglary. The plea was entered pursuant to a plea bargain agreement. The Court of Appeals affirmed the judgment of the district court in an unpublished opinion dated May 27, 1988. On July 8, 1988, we granted the defendant's petition for review.

The defendant was charged in Sedgwick County District Court with two counts of burglary and three counts of theft. The five counts arose from three separate complaints: 86-CR-1743 (charging one count of theft and one count of burglary); 86-CR-1763 (charging theft); and 86-CR-1814 (charging burglary and theft). Under a plea agreement with the State, the defendant agreed to plead guilty to each count in exchange for the State's promise not to invoke the provisions of the Habitual Criminal Act, and to recommend that the sentences upon each count run concurrently, yielding a three- to ten-year controlling sentence on all counts.

The district court accepted the defendant's guilty plea on February 9, 1987, and on March 6, 1987, imposed a sentence of one to five years' imprisonment on each theft count, and three to ten years on each burglary count. The district court, however, chose not to follow the State's recommendation, and the sentences imposed in Case No. 86-CR-1814 were designated to run consecutively with the sentences imposed in the other three counts. The defendant thus received a controlling term of imprisonment of six to twenty years.

On March 9, 1987, the defendant filed a motion to modify the sentence imposed. At a hearing on the defendant's motion, counsel for the defendant requested that the court grant probation or reduce the controlling term of imprisonment to three to ten years. When the court asked the State for its views on the defendant's motion, the State's attorney referred to a State Reception and Diagnostic Center report, which it characterized as "not what you would call a good report." The State then concluded: "It does not appear that a modification is in order." The defendant's motion to modify the sentence was denied.

The defendant then moved to withdraw his guilty plea, arguing that the State had violated his due process rights by failing to comply with the terms of the plea arrangement. The defendant's motion was overruled on June 18, 1987. The defendant then appealed the denial of his motion to the Court of Appeals, which affirmed the judgment of the district court.

The sole issue on appeal is whether the district court erred in refusing to permit the defendant to withdraw his guilty plea after the State failed to support the previously recommended sentence during a post-sentence hearing. More specifically, is the State bound by the plea agreement at the hearing on defendant's motion to modify the sentence?

While the opinion of the Court of Appeals cites to several Kansas cases applying general rules of law regarding plea bargains, none of the cited cases deals with the obligation of the State to comply with the terms of the plea arrangement in post-sentence proceedings. Nor does the Court of Appeals opinion cite any persuasive authority for its conclusion that the State is absolved from any further obligations under the plea arrangement once it makes its initial recommendations at the original sentencing hearing.

The Court of Appeals, in finding that the district court did not err in denying the defendant's motion to withdraw his guilty plea, stated:

"Wills contends on appeal that the State violated the terms of the plea negotiation by not recommending a controlling term of three to ten years at the sentence modification hearing and that manifest injustice resulted. He relies on Santobello v. New York, 404 U.S. 257, 30 L.Ed.2d 427, 92 S.Ct. 495 (1971), for the proposition that the State may not renege on a promise made in the course of plea negotiations. In Santobello, the State agreed during plea negotiations to make no recommendation concerning the sentence, but at a sentencing hearing the State recommended the maximum sentence. The judge stated that he was not influenced by the State's recommendation, but nevertheless imposed the maximum sentence. The Supreme Court vacated the judgment and remanded, holding that where a plea rests on a promise by the State, the promise must be fulfilled.

"The pivotal question in the present case is whether the State violated the terms of the plea agreement by not recommending that all the sentences run concurrently. Our Supreme Court has held that a motion for modification is not considered part of the 'imposition of sentence.' State v. Jennings, 240 Kan. 377, 378, 729 P.2d 454 (1986). The Supreme Court has further observed that, at the time plea negotiations were entered into, the prosecutor may not have had full knowledge of defendant's past record or the dispositions on prior charges. Burden v. State, 225 Kan. 549, 555, 592 P.2d 451 (1979).

"Where the prosecution carries out its promise to recommend a certain sentence. Santobello does not apply. Burden v. State, 225 Kan. at 553. In the present case the State made the agreed recommendations at the sentencing hearing. After the State Reception and Diagnostic Center report became available and Wills filed his motion to modify, the State was no longer bound to recommend a shorter sentence. The trial court did not abuse its discretion in refusing to find manifest injustice to the defendant."

While the Court of Appeals correctly noted that, in State v. Jennings, 240 Kan. 377, 729 P.2d 454 (1986), we held that a motion for modification is not part of the "imposition of sentence," the issue, however, was the right of the defendant to appear in person. We said:

"Unless a motion for modification is considered part of the 'imposition of sentence,' the appellant had no right to appear in support of his motion. We resolved this issue in State v. Bryant, 227 Kan. 385, 607 P.2d 66 (1980), where we held that a defendant's right to be present does not extend to post-conviction motions. In so holding, we reasoned that the trial ends when a verdict has been rendered, any right which the accused may have to be present at proceedings following indictment continues only during the pendency of the trial, and a defendant, once convicted, cannot expect to be present at post-conviction motions. See also State v. Myers, 10 Kan.App.2d 266, 271, 697 P.2d 879 (1985), where the Court of Appeals noted that a defendant has no right to be present at a ruling on a motion to modify. We agree and hold that a defendant has no right to a hearing on a motion to modify sentence or to be present at consideration of that motion." 240 Kan. at 378-79, 729 P.2d 454.

The obligation of the State pursuant to a plea agreement was not at issue in Jennings. Nor did the State in the present case limit its promise to the "imposition of sentence."

In Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), the United States Supreme Court stated:

"The plea must, of course, be voluntary and knowing and if it was induced by promises, the essence of those promises must in some way be made known....

"This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." 404 U.S. at 261-62, 92 S.Ct. at 498.

The basis for the Court's decision is somewhat unclear because the Court did not specifically cite a constitutional provision as the basis for its decision. However, one obviously existed in order for the Court to reverse the decision of the New York State court. The Court seems to apply a combination of contract and constitutional law in arriving at its decision. However, in Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984), the Court made it clear that the decision in Santobello was based upon constitutional due process considerations. In Mabry, the Court said:

"A plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest. It is the ensuing guilty plea that implicates the Constitution....

....

"Thus, only when it develops that the defendant was not fairly apprised of its consequences can his plea be challenged under the Due Process Clause. Santobello v. New York, 404 U.S. 257[, 92 S.Ct. 495, 30 L.Ed.2d 427] (1971), illustrates the point. We began by acknowledging that the conditions for a valid plea 'presuppose...