State v. Xaviar, 28438-3-II.

• Decision Date: 03 June 2003
• Docket Number: No. 28438-3-II.,28438-3-II.
• Citation: 117 Wash. App. 196,69 P.3d 901
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Michal Johnathen XAVIAR, Appellant.

69 P.3d 901

117 Wash. App. 196

STATE of Washington, Respondent, v. Michal Johnathen XAVIAR, Appellant.

No. 28438-3-II.

Court of Appeals of Washington, Division 2.

June 3, 2003.

Thomas E. Weaver, Attorney at Law, Port Orchard, WA, for appellant.

Robert Lee Naon, Kitsap County Prosecutor's Office, Port Orchard, WA, for respondent.

SEINFELD, J.

Michal Xaviar contends that the prosecutor breached the State's plea agreement by commenting at his sentencing hearing about the egregious nature of the crime and describing potential aggravating factors. He also contends that under Apprendi,¹ the State must prove to a jury the existence of aggravating circumstances beyond a reasonable doubt. We disagree with the later contention but agree that the prosecutor undercut the sentencing recommendation. Thus, we reverse the sentence and remand.

FACTS

Xaviar pleaded guilty to sexual exploitation of a minor, first- and second-degree child rape, and first-degree child molestation. In exchange, the State agreed to recommend a 240-month sentence, the bottom of the standard sentence range for the charges.

At the sentencing hearing, the prosecutor made the agreed upon 240-month recommendation. But instead of stopping there, and without the court's prompting, she proceeded to (1) emphasize the graveness of the situation; (2) reiterate the charges that the State did not bring; (3) note that the State had forgone the opportunity to ask for a 60-year exceptional sentence; and (4) highlight aggravating circumstances that would support an exceptional sentence.

After also hearing from parents of some of the victims and after reviewing the Department of Corrections's presentence investigation report, the trial court imposed a 480-month exceptional sentence. The court relied on the following aggravating circumstances: (1) deliberate cruelty; (2) vulnerable victims; (3) abuse of a position of trust and authority to facilitate the commission of the offenses; (4) an ongoing pattern of sexual abuse; and (5) danger to society.

Xaviar appeals the exceptional sentence.

DISCUSSION

I. Breach of the Plea Agreement

The State contends that the prosecutor did not undercut the sentencing recommendation but was merely placing her recommendation within the larger context of the case and showing that she was aware of the disturbing circumstances surrounding Xaviar's crimes. But this justification cannot support what amounts to a breach of the agreement.

By entering into a plea bargain, the defendant gives up important constitutional rights. State v. Van Buren, 101 Wash.App. 206, 211, 2 P.3d 991 (2000). For this reason, the defendant can raise the issue of the prosecutor's breach for the first time on appeal, as Xaviar does here. Van Buren, 101 Wash.App. at 211-12, 2 P.3d 991.

Further, the constitutional dimensions of the plea agreement make it essential that the State fulfill its "implied promise to act in good faith." State v. Williams, 103 Wash.App. 231, 235, 11 P.3d 878 (2000). To do so, it "must adhere to its terms by recommending the agreed upon sentence." State v. Jerde, 93 Wash.App. 774, 780, 970 P.2d 781.

Moreover, the State may not undercut the plea bargain "either explicitly or implicitly through conduct indicating an intent to circumvent the agreement." Williams, 103 Wash.App. at 236, 11 P.3d 878. We determine whether the State violated its duty to adhere to the agreement by reviewing the entire sentencing record and applying an objective standard. Williams, 103 Wash. App. at 236, 11 P.3d 878. Neither good motivations nor a reasonable justification will excuse a breach. Van Buren, 101 Wash.App. at 213, 2 P.3d 991.

RCW 9.94A.535 authorizes the court to impose an exceptional sentence "if it finds... that there are substantial and compelling reasons justifying an exceptional sentence." The statute lists several "illustrative factors which the court may consider in the exercise of its discretion to impose an exceptional sentence," including that (1) the defendant's conduct "manifested deliberate cruelty to the victim"; (2) the defendant knew that the victim "was particularly vulnerable or incapable of resistance due to extreme youth"; (3) the offense was sexually motivated; and (4) "[t]he offense was part of an ongoing pattern of sexual abuse of the same victim under the age of eighteen years manifested by multiple incidents over a prolonged period of time." RCW 9.94A.535.

Here, the prosecutor commented that (1) under the plea bargain the State agreed not to pursue other charges, including multiple counts of first- and second-degree child molestation, first- and second-degree rape of a child, and depictions of a minor in sexually explicit conduct, or to seek a 60-year exceptional sentence; (2) the situation was "grave" and Xaviar was "one of the most prolific child molesters that this office has ever seen"; (3) molesting children permeated every aspect of Xaviar's life and was his reason for being, as indicated by the fact that he created a corporation and named the victims as corporate officers; (4) Xaviar's conduct involved "grooming" children as young as 10 years old "in the worst manner possible" for a long time until he was caught; (5) the victims suffered huge trauma and would never have a normal relationship; (6) Xaviar has exhibited no remorse; and (7) his conduct constituted a "monumental violation of trust" in that his victims considered him a father figure, a best friend, and a guardian, and he gave them money, alcohol, and drugs to facilitate having sex with them. Report of Proceedings at 34-35.

The above unsolicited remarks obviously refer to the aggravating factors in RCW 9.94A.535 that justify an exceptional sentence. By highlighting these compelling aggravating facts, the prosecutor clearly signaled to the court her lack of support for a standard range sentence and thereby "effectively undercut the plea agreement in a transparent attempt to sustain an exceptional sentence." Jerde, 93 Wash.App. at 782, 970 P.2d 781 ("Without prompting from the court, the first prosecutor laid the foundation by articulating several factual and legal arguments that would support an exceptional sentence."); compare State v. Coppin, 57 Wash. App. 866, 875, 791 P.2d 228 (1990)

(prosecutor's comment that if not for the plea agreement he would have sought an exceptional sentence did not breach agreement because trial court solicited the comment and attorneys have duty under RPC 3.3 to answer court's questions honestly).

Further, it appears that the court adopted the prosecutor's reference to violation of the victims' trust as an aggravating circumstance to support its exceptional sentence. This went beyond the presentence investigation report, which did not mention abuse of the victims' trust as an aggravating circumstance; it only noted that the victims' parents trusted Xaviar to care for their children. See Jerde, 93 Wash.App. at 782,

970 P.2d 781 (prosecutor undercut plea agreement by, among other things, "highlighting aggravating factors and even add[ing] an aggravating factor not found in the presentence report")

The State argues that the prosecutor's comments were necessary to demonstrate her knowledge of the underlying facts and circumstances; this is not persuasive. First, the presentence investigation report included a detailed description of the facts and circumstances of Xaviar's misconduct and the prosecutor indicated that she was familiar with the report. This was sufficient to show that the prosecutor was aware of the underlying facts and circumstances. And second, absent a question from the court, the prosecutor's knowledge of the details of the crime was not a relevant issue before the court.

Therefore, we remand this matter to the superior court where Xaviar may either withdraw his guilty plea and proceed to trial on the charges or enforce the plea bargain agreement before a judge who has not heard the State's unsolicited comments. Van Buren, 101 Wash.App. at 217-18, 2 P.3d 991; Jerde, 93 Wash.App. at 782-83, 970 P.2d 781. If Xavier elects to enforce the plea agreement, "the State must present the agreed-upon sentencing recommendation without equivocation" but "the sentencing court retains the discretion to accept or reject the recommendation." Williams, 103 Wash.App. at 239, 11 P.3d 878; Van Buren, 101 Wash. App. at 218, 2 P.3d 991; see also In re Powell, 117 Wash.2d 175, 199, 814 P.2d 635 (1991).

II. Proof of Aggravating Circumstances

Xaviar argues that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the State must prove aggravating factors that support an exceptional sentence to a jury under a beyond a reasonable doubt standard. The State responds that the Washington Supreme Court rejected this contention in State v. Gore, 143 Wash.2d 288, 21 P.3d 262 (2001).

The Apprendi court held that the Sixth Amendment right to trial by jury and the Fourteenth Amendment right to due process requires that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490,120 S.Ct. 2348. Apprendi had pleaded guilty to second-degree possession of a firearm for an unlawful purpose, a crime punishable by imprisonment for between five and ten years. Apprendi, 530 U.S. at 468-69,120 S.Ct. 2348. But at sentencing, the trial court applied New Jersey's hate crime sentencing enhancement statute, which authorized the court to sentence Apprendi to prison for between ten and twenty years if it found by a preponderance that he committed the crime with a racially biased purpose. Apprendi, 530 U.S. at 468-71,120 S.Ct. 2348.

The Apprendi court recognized that a criminal defendant is constitutionally entitled to "`a jury determination that [he] is guilty of every element of the...