Opinion
Docket No. 31891.
Filed June 22, 2007.
Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bannock County. Hon. Peter D. McDermott, District Judge.
Order revoking probation, executing the original sentence and denying I.C.R. 35 motion for reduction of sentence, affirmed.
Molly J. Huskey, State Appellate Public Defender; Diane M. Walker, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Thomas R. Tharp, Deputy Attorney General, Boise, for respondent.
Tim A. Timbana appeals from the district court's order revoking probation, executing the underlying sentence, and denying his Rule 35 motion. Timbana contends the prosecutor breached an agreement not to oppose his Rule 35 motion, entitling Timbana to a new disposition hearing before a different judge. We affirm.
I. BACKGROUND
On December 29, 1999, Timbana was charged with felony driving under the influence (DUI) with an excessive alcohol concentration and eluding a police officer. Pursuant to a plea agreement, Timbana pled guilty to felony DUI, I.C. §§ 18-8004, -8004C(2), and the eluding charge was dismissed. Timbana received a unified sentence of five years with three years determinate, and the district court retained jurisdiction for 180 days. Upon Timbana's successful completion of the retained jurisdiction program, the district court suspended the sentence and placed him on probation for five years.
The written minute entry and order, as well as all subsequent written minute entries and orders of the district court, erroneously recorded the sentence as four years determinate instead of three.
Timbana argues that the orally imposed sentence in open court prevails over the written judgment of conviction. See State v. Dreier, 139 Idaho 246, 254, 76 P.3d 990, 998 (Ct.App. 2003); State v. Watts, 131 Idaho 782, 786, 963 P.2d 1219, 1223 (Ct.App. 1998) ("The only legally cognizable sentence in a criminal case is the actual oral pronouncement in the presence of the defendant."). The state concedes that "the unified five-year sentence with three years fixed that was orally pronounced by the district court at sentencing is the maximum sentence the court could have imposed when it revoked Timbana's probation." Specific relief is available to Timbana via an I.C.R. 36 motion for correction of clerical mistakes. State v. Wallace, 116 Idaho 930, 932, 782 P.2d 53, 55 (Ct.App. 1989).
A probation violation report was filed in August 2004, alleging that Timbana was intoxicated while driving a vehicle involved in a rollover accident. After finding Timbana had violated probation, the district court decided to continue supervised probation. In February 2005, a second probation violation report was filed, stating that Timbana had been charged with felony DUI and leaving the scene of an accident, and that Timbana had refused his probation officer's instruction to submit to an alcohol blood test when he arrived at the jail following his arrest.
Prior to the probation violation evidentiary hearing on the second probation violation incident, Timbana's counsel negotiated an agreement with a deputy prosecutor whereby Timbana would admit to violating probation in exchange for the state's promise to recommend that the underlying sentence run concurrently with the 2004 felony DUI sentence and not to oppose Timbana's Rule 35 motion for reduction of his original sentence. At the hearing, after Timbana admitted to the probation violation, another deputy prosecutor (who was not aware of the agreement) expressed opposition to reduction of Timbana's sentence, stating:
Timbana received a concurrent unified sentence of five years, with a minimum period of confinement of four years following his guilty plea to the 2004 felony DUI. In an unpublished opinion, we affirmed Timbana's judgment of conviction and sentence, and the district court's order denying his Rule 35 motion in that case. State v. Timbana, Docket No. 31946 (May 2, 2006) (unpublished).
Your Honor, here, the sentence is four fixed, one indeterminate. He was placed on probation, given numerous chances, and here he has gone and committed the exact same offense that he was put on probation for. I don't think he's deserving of a reduction in sentence; however, I will note that he has completed a rider.
I'm not sure what other time he has served on this charge alone initially, so if Your Honor gave him credit for that time, I believe that would reduce the four fixed sentence down some and get it closer to the two plus three that he got in Power County, but I don't think a reduction, per se, is warranted.
At that point, Timbana's counsel apparently alerted the deputy prosecutor to the agreement. The deputy prosecutor then apologized to the court for not adhering to the agreement, withdrew his opposition to the Rule 35 motion, and said he would defer to the discretion of the court. The district court revoked Timbana's probation, reinstated the original sentence, and denied Timbana's motion for reduction of the sentence. This appeal followed.
II. DISCUSSION
Timbana contends that the prosecutor breached the agreement not to oppose his Rule 35 motion, thus entitling him to a new disposition hearing before a different judge. In response, the state "recognizes that parties should adhere to their agreements," but argues that there are important distinctions between a plea agreement and the agreement involved here such that the remedy requested by Timbana is inappropriate. The state argues that post-sentencing agreements concerning the admission of a probation violation carry few of the protections afforded a party pleading guilty to a crime.
It is well established that when a plea rests in any significant degree on a promise or agreement of the prosecutor, such promise must be fulfilled as part of the inducement or consideration. Santobello v. New York, 404 U.S. 257, 262 (1971). This principle is derived from the Due Process Clause and the fundamental rule that, to be valid, a guilty plea must be both voluntary and intelligent. Mabry v. Johnson, 467 U.S. 504, 508-09 (1984); State v. Rutherford, 107 Idaho 910, 913, 693 P.2d 1112, 1115 (Ct.App. 1985). If the prosecution intentionally or inadvertently breaches a promise given in a plea agreement, it cannot be said that the defendant's plea was knowing and voluntary, for the defendant has been led to plead guilty on a false premise. State v. Jones, 139 Idaho 299, 301-02, 77 P.3d 988, 990-91 (Ct.App. 2003). In that event, the defendant will be entitled to relief. State v. Fuhriman, 137 Idaho 741, 744, 52 P.3d 886, 889 (Ct.App. 2002). As a remedy, the court may order specific performance of the agreement or may permit the defendant to withdraw the guilty plea. Santobello, 404 U.S. at 263; Jones, 139 Idaho at 302, 77 P.3d at 991.
The prosecution's obligation to recommend a sentence promised in a plea agreement does not carry with it the obligation to make the recommendation enthusiastically. United States v. Benchimol, 471 U.S. 453, 455 (1985); Jones, 139 Idaho at 302, 77 P.3d at 991. A prosecutor may not circumvent a plea agreement, however, through words or actions that convey a reservation about a promised recommendation, nor may a prosecutor impliedly disavow the recommendation as something the prosecutor no longer supports. Jones, 139 Idaho at 302, 77 P.3d at 991. Although prosecutors need not use any particular form of expression in making an agreed sentence recommendation, their overall conduct must be reasonably consistent with making such a recommendation, rather than the reverse. Id.; see also State v. Wills, 140 Idaho 773, 776, 102 P.3d 380, 383 (Ct.App. 2004) (sentence recommendation made with "great restraint" breached plea agreement); State v. Daubs, 140 Idaho 299, 300-01, 92 P.3d 549, 550-51 (Ct.App. 2004) ("lip service" does not suffice where prosecutor constructively disavows the agreed recommendation). A defendant is entitled to have the prosecutor's conduct conform to the defendant's reasonable understanding of the bargain. Wills, 140 Idaho at 776, 102 P.3d at 383. Prosecutors must endorse the recommended terms of an agreement as the ones the district court should accept. Id.
In State v. Lankford, 127 Idaho 608, 613, 903 P.2d 1305, 1310 (1995), the Idaho Supreme Court considered a binding sentencing agreement whereby the prosecution agreed to recommend an indeterminate life sentence in exchange for the defendant's cooperation in the prosecution of his brother. The state breached this agreement by filing a "Notice of the Intention to Seek The Death Penalty," thereby exposing the sentencing judge to the prosecution's impermissible request for a death sentence. Id. at 612, 903 P.2d at 1309. The Supreme Court held, however, that resentencing is not necessary if the breach is discovered prior to sentencing and an appropriate cure is adopted by the judge. The Court opined that " the fact that the sentencing judge is exposed to a sentencing recommendation that breaches a plea agreement should not in and of itself require transfer of the case to another judge if the breach is recognized and appropriate remedial action taken." Id. at 616, 903 P.2d at 1313 (emphasis added).
In seeking to fashion an appropriate remedy, the sentencing judge in Lankford correctly determined that his own ability to consider imposition of a death sentence was not foreclosed by the state's promise not to request the death penalty. Id. At the capital sentencing hearing, however, the state aggressively cross-examined defense witnesses testifying in mitigation, presented testimony that the defendant had been a disruptive inmate and was a poor candidate for rehabilitation, and argued that the defendant was manipulative and dangerous and not deserving of the most lenient treatment — an indeterminate life sentence. Id. at 617, 903 P.2d at 1314. The Supreme Court reversed and remanded for a new sentencing hearing, concluding that the state's breach was not cured because the state continued to advocate a position "fundamentally at odds with the position the state was obligated to recommend," namely, that Lankford receive the minimum sentence. Id.
The principles embodied in Lankford control our case, assuming arguendo that the due process protections of Santobello apply to post-sentencing agreements. By admitting to the probation violation, Timbana, like Lankford, had already performed his end of the bargain with the state. The state breached the agreement when the prosecutor inadvertently overlooked the agreement to remain silent on the Rule 35 motion and told the district court that Timbana's case did not warrant a sentence reduction. After the breach was brought to the attention of the state, the prosecutor apologized for the breach and explained to the court that the state had agreed not to oppose the Rule 35 motion. To remedy the situation, the court asked whether the state would specifically perform according to the agreement with Timbana. The prosecutor answered affirmatively that the state would not oppose Timbana's Rule 35 motion. The court then asked whether counsel for either party had any comments to make. Timbana's counsel stated, "Your Honor, we just ask that this Court, in whatever disposition is determined here, grants Mr. Timbana time for that served on these underlying probation violations." Timbana's counsel did not ask for any alternative relief in response to the district court's remedial efforts. The court proceeded to deny Timbana's motion to reduce his sentence.
The prosecutor's actions here, while exposing the district judge to a recommendation in breach of the agreement, do not present a per se bar to disposition sentencing by the same judge. In breaching the agreement, the prosecutor merely recounted facts already in the record, and thus the prosecutor's initial recommendation — similar in effect to the "Notice of Intention to Seek The Death Penalty" in Lankford — was not enough to color the mind of the presiding judge.
Upon recognizing the breach, it was appropriate for the judge to inquire as to the state's willingness to specifically perform its promise not to oppose Timbana's motion for reduction of his original sentence. Unlike in Lankford, the state changed course by openly acknowledging the agreement with Timbana and withdrawing the objection to his Rule 35 motion rather than continuing to advocate an inconsistent position. Because specific performance of the state's affirmation (to recommend that the underlying sentence run concurrently with the 2004 felony DUI sentence and not to oppose Timbana's Rule 35 motion for reduction of his original sentence) was an adequate remedy under the circumstances presented here, the prosecutor's breach does not entitle Timbana to a new disposition hearing before a different judge.
III. CONCLUSION
The district court fashioned an appropriate remedy for the prosecutor's breach of the state's promise not to oppose a reduction of sentence. The district court's order revoking Timbana's probation, executing the sentence, and denying his Rule 35 motion is therefore affirmed.
Chief Judge PERRY and Judge LANSING CONCUR.