Opinion
No. 21614-4-III.
Filed: April 29, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Yakima County. Docket No: 02-1-01295-2. Judgment or order under review. Date filed: 11/08/2002. Judge signing: Hon. James P Hutton.
Counsel for Appellant(s), Stephanie C Cunningham, Attorney at Law, # 552, 4603 University Vlg NE, Seattle, WA 98105-5091.
Counsel for Respondent(s), Ronald Stanton Zirkle, Attorney at Law, Yakima County Courthouse, 128 N 2nd St. Rm 329, Yakima, WA 98901-2639.
Alecia Dawn Penado pleaded guilty to delivering cocaine. The plea bargain partly required the State to recommend a Drug Offender Sentencing Alternative (DOSA) and recommend a release before sentencing. Immediately at the State's urging, the court added to the release order a provision that the State could oppose the sentencing alternative if Ms. Penado failed to appear for sentencing. After Ms. Penado failed to appear for sentencing, the State added a bail jumping charge. At the rescheduled sentencing for the drug offense, the State argued against a DOSA. Faced with the bail jumping charge, defense counsel argued for a mitigated sentence rather than a DOSA. The trial court gave a bottom standard range sentence. On appeal, Ms. Penado contends the State breached the plea agreement. We affirm.
FACTS
After the State filed an amended information charging Ms. Penado with delivering cocaine, she pleaded guilty pursuant to a plea agreement. The State partly agreed to recommend a DOSA and allow her release until sentencing.
After due inquiry, the trial court accepted her plea.
THE COURT: I'm satisfied that the defendant is entering her plea knowingly, intelligently and voluntarily and there's a factual basis supporting the plea and I do find you guilty as charged.
Is the state in agreement that she should be released until Friday?
[Deputy Prosecutor]: I have no objection. I would ask the order reflect that should she fail to appear the State would file bail jumping charges and it could affect the recommendations as well.
THE COURT: Okay. Do you understand that?
THE DEFENDANT: I'll be here at 9 o'clock.
Report of Proceedings (RP) (October 21, 2002) at 7.
The trial court's furlough order partly states:
Ms. Penado is released on her own recognizance until Friday 10/25/02 at 9 a.m. at which time she is to be in Jail Court Room #1 for sentencing herein.
Should she fail to appear bail jumping charges could be filed and the State could oppose the DOSSA [sic.]
Clerk's Papers (CP) at 44.
Ms. Penado failed to appear for sentencing as ordered. The State then amended the information to add a bail jumping charge as Count 2.
At the rescheduled sentencing, the deputy prosecutor noted Ms. Penado had not appeared at her original sentencing date, thus giving the State 'leave to argue for something other than DOSA[.]' RP (November 8, 2002) at 2. She then vigorously argued against a DOSA sentencing and urged a 108-month bottom of standard range sentence.
Defense counsel argued he was 'somewhat boxed in' regarding Ms. Penado's DOSA request. RP (November 8, 2002) at 6. Defense counsel reasoned a potential consecutive sentencing on the bail jumping charge would defeat the sentencing benefits of DOSA. Defense counsel finally argued for a downward departure from the standard-range sentence, not a DOSA.
In pronouncing sentence, the trial court partly stated:
And I guess the thing that concerns me, and the point that the prosecutor's made, here, is that you apparently have had, and do have, a problem following through with things that for most of us would be fairly straightforward, like appearing for the sentencing hearing. It seems to me that if you felt it was significant enough and of enough consequence to your life, you would have been there on the 25th for sentencing, and at that time the prosecutor would have been obligated to follow through on her — on her obligation to recommend DOSA.
RP (November 8, 2002) at 13.
The trial court followed the State's recommendation, ordering a low end standard range sentence for the delivery charge. Four days later, another judge dismissed with prejudice the bail jumping charge at the State's request 'for the reason that the defendant has entered a plea of guilty or has been sentenced on Count(s) 1 and prosecution of indicated count(s) is not necessary or desired.' CP at 16.
Ms. Penado appealed.
ANALYSIS
The issue is whether, under these facts, the State breached the plea agreement by failing to urge a DOSA sentencing.
Advocating a position contrary to a promise made in a plea agreement is a breach of that agreement. See, e.g., State v. Sledge, 133 Wn.2d 828, 842-43, 947 P.2d 1199 (1997); State v. Lake, 107 Wn. App. 227, 233-34, 27 P.3d 232 (2001); State v. Van Buren, 101 Wn. App. 206, 215-17, 2 P.3d 991 (2000), review denied, 142 Wn.2d 1015 (2000); State v. Jerde, 93 Wn. App. 774, 782, 970 P.2d 781 (1999). Ms. Penado did not raise this issue below; however, 'a claim of error based upon a breach of a plea agreement involves an issue of constitutional magnitude that may be raised for the first time on appeal under RAP 2.5(a)(3).' State v. Walsh, 143 Wn.2d 1, 8, 17 P.3d 591 (2001).
'When a defendant claims constitutional error, the court previews the merits of the claimed error to determine whether the argument is likely to succeed.' State v. Sanchez, 146 Wn.2d 339, 346, 46 P.3d 774 (2002) (citing State v. WWJ Corp., 138 Wn.2d 595, 603, 980 P.2d 1257 (1999)); see also Walsh, 143 Wn.2d at 8. 'The error is considered 'manifest' under RAP 2.5(a)(3) if the facts necessary to review the claim are in the record and the defendant shows actual prejudice.' Sanchez, 146 Wn.2d at 346 (citing State v. McFarland, 127 Wn.2d 322, 333-34, 899 P.2d 1251 (1995)). A defendant asserting a breach of plea agreement can show actual prejudice if the trial court did not sentence the defendant in accordance with the plea agreement. Sanchez, 146 Wn.2d at 346. Therefore, 'this court can accept review under the 'manifest error affecting a constitutional right' standard.' Id. (quoting RAP 2.5(a)(3)).
Ms. Penado argues the State added a term to the agreement allowing the State to argue against a DOSA if she failed to appear at sentencing. The record does not support her argument. While the State promised to recommend a DOSA sentencing in return for Ms. Penado's guilty plea, the written plea agreement contained a promised recommendation by the State for release before sentencing. Although the written plea did not state the State could withdraw its DOSA recommendation should Ms. Penado fail to appear, the State immediately related that understanding to the trial court. Without objecting, Ms. Penado agreed. Consistently, the agreed release order allowed the State to oppose a DOSA sentencing if she failed to appear for sentencing Moreover, at the rescheduled sentencing, Ms. Penado's counsel abandoned his effort to secure a DOSA sentencing when faced with the practical problem of the added bail jumping charge, observing that he was 'somewhat boxed in' under the circumstances. RP (November 8, 2002) at 6. Instead, defense counsel asked for a downward departure from the standard-range, not a DOSA sentencing. Accordingly, Ms. Penado fails to show prejudice from the alleged breach. And, according to the sentencing court's stated reservations about the viability of a DOSA sentencing, a DOSA sentence was unlikely, again undermining her need to show prejudice.
In any event, we analyze a plea agreement using contract principles. Sanchez, 146 Wn.2d at 347. Consequently, the parties to the plea agreement are bound by the implied contractual duties of good faith and fair dealing. Sledge, 133 Wn.2d at 839. Because of constitutional due process concerns, courts have generally expressed the duties of good faith and fair dealing as obligations of the State. See id. But contract principles dictate the defendant is equally obliged to deal with the State fairly and in good faith.
Consistent with notions of good faith and fairness, implicit in every plea agreement is the defendant's promise that he or she will obey the trial court's orders pending sentencing on the matter on which the plea agreement is based. Failure to obey the trial court's orders is a breach of the agreement. Implicit also in the agreement is the promise that the defendant's breach of the agreement will excuse the State from the promised sentencing recommendation. See, e.g., State v. Morley, 35 Wn. App. 45, 47-48, 665 P.2d 419 (1983); State v. Hall, 32 Wn. App. 108, 110, 645 P.2d 1143 (1982); State v. Yates, 13 Wn. App. 116, 117-18, 533 P.2d 846 (1975). Accordingly, the State's request that the furlough order reflect the consequences of Ms. Penado's failure to appear was an articulation of what is already implied in the plea agreement. It was not, as Ms. Penado contends, an amendment outside the terms of the plea agreement. Ms. Penado, understanding her obligations triggered by the plea agreement and the consequences of breaching the agreement, did not object and expressly promised to appear as ordered. She broke that promise, thus releasing the State from its sentencing recommendation. See Yates, 13 Wn. App. at 118 ('The understanding between the defendant and the prosecutor was breached by the defendant when he did not return for sentencing.')
If there is a genuine factual dispute as to whether the defendant breached the agreement, remand for an evidentiary hearing is required. In re Pers. Restraint of James, 96 Wn.2d 847, 850, 640 P.2d 18 (1982). But if no question exists as to the defendant's breach, this court need not order an evidentiary hearing. See Hall, 32 Wn. App. at 110 (defendant admitted giving false name to induce plea bargain). Here, we see no need to remand; it is an undisputed fact that Ms. Penado failed to appear for sentencing as ordered. Hall, 32 Wn. App. at 110. Thus, the State was no longer obligated to recommend DOSA. Hall, 32 Wn. App. at 110; Yates, 13 Wn. App. at 118.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
KATO, C.J. and SWEENEY, J., concur.