CITE: 35 Wn. App. 45, 665 P.2d 419
STATE v. MORLEY
CAUSE NUMBER: 5040-8-III
FILE DATE: June 16, 1983
CASE TITLE: The State of Washington, Respondent, v. Gary Lee Morley, Appellant.
[1] Criminal Law - Plea of Guilty - Plea Bargaining - Breach by Defendant - Proof. Whether the State is relieved of its obligations under a plea bargain by virtue of the defendant's nonperformance of his obligations is a question of fact to be determined after an evidentiary hearing at which the State has the burden of proving by a preponderance of the evidence that the defendant breached the agreement.
[2] Criminal Law - Plea of Guilty - Plea Bargaining - Breach by State - Remedy. When the State has violated its obligations under a plea bargain without justification, the trial court may either permit the guilty plea to be withdrawn or grant specific performance of the bargain. The defendant's preferred remedy is entitled to considerable weight. If specific performance is granted following a remand, the State must comply with its obligations under the bargain without equivocation and a different judge should perform the resentencing.
NATURE OF ACTION: Pursuant to a plea bargain, a defendant charged with second degree assault agreed to enter an alcohol treatment program and the State agreed to recommend probation.
Superior Court: The Superior Court for Yakima County, No. 81 1-00640-5, Carl L. Loy, J., on February 4, 1982, entered a judgment on a plea of guilty and a sentence of imprisonment. While on release pending sentencing, the defendant had been arrested in an intoxicated state.
Court of Appeals: Holding that the State's failure to recommend probation was improper in the absence of an evidentiary hearing regarding the defendant's failure to perform his obligations under the plea bargain, the court REVERSES the judgment and REMANDS for withdrawal of the plea or specific performance of the plea bargain.
COUNSEL: DIRK A. MARLER and PORTER, SCHWAB, ROYAL & ROWLEY, for appellant.
JEFFREY C. SULLIVAN, PROSECUTING ATTORNEY, and JOHN C. MONTER, DEPUTY, for respondent.
AUTHOR OF MAJORITY OPINION: Green, J.-
MAJORITY OPINION:
On September 16, 1981, defendant was charged with second degree assault. He entered a guilty plea pursuant to STATE v. NEWTON, 87 Wn.2d 363, 552 P.2d 682 (1976), on the basis he could not refute the charge because he was too intoxicated to recall what occurred. In return for this plea, the State agreed to recommend probation. Sentencing was deferred until February 1982, at defendant's request, to allow him to enter an alcohol treatment program in Spokane. He intended to urge any progress he made with this program as a basis for probation.
At the sentencing hearing, the prosecutor reported defendant failed to enter the alcohol treatment center, but instead consumed alcohol after his release and, on January 15, was arrested "on misdemeanor trespass and possession of marijuana charges" in the Tri-Cities. He concluded:
The problem that I am faced with: One, I don't want to violate the agreement that I made with [defense counsel] and [defendant]; but, on the other hand, it is my feeling that [defendant] has perhaps violated his part of the agreement . . . I am kind of in a quandry [SIC],I guess is the problem I'm faced with. Defendant admitted to becoming intoxicated and being arrested. No inquiry was made or proof offered as to the underlying facts or disposition of the charges.
In pronouncing sentence, the court indicated the consumption of alcohol was a violation of the conditions of defendant's release pending sentencing. The court further stated:
not only did you use alcohol again, but you COMMITTED TWO MORE CRIMES. We have done everything we can to help you . . . the string has just run out for you. (Italics ours.) Defendant was sentenced to not more than 10 years.
Thereafter, defendant moved to set aside the sentence and withdraw his guilty plea on the basis the prosecuting attorney violated the plea bargaining agreement. The State argued defendant's subsequent misconduct released it from the bargain. The court denied this motion without an evidentiary hearing. This appeal followed.
It is evident the State did not keep its bargain and understandably so. It equivocated in its recommendation because of defendant's subsequent misconduct. However, IN RE JAMES, 96 Wn.2d 847, 640 P.2d 18 (1982) controls our disposition of this case.
[1] JAMES also involved arrests for two misdemeanors after a guilty plea was entered but before sentencing. The court in a 5-to-4 decision held, at page 850, the mere accusation or charge of misconduct by a defendant "does not relieve the State of its bargained-for duty. . . . [T]he issue of noncompliance [by the defendant] is a question of fact to be determined by the court . . ." After reviewing decisions from other jurisdictions, the court also stated, at page 850:
To ensure fairness, those jurisdictions have required, before relieving the State of its promises, that an evidentiary hearing be held and that the defendant be given an opportunity to call witnesses and have other due process rights, including the requirement that the State prove, by a preponderance of the evidence, that the defendant has failed to perform his or her part of the agreement. . . . Like them, we believe such a procedure is constitutionally required. Although the trial court did not have the benefit of the JAMES decision, that case mandates the sentence be set aside here.
[2] JAMES also mandates this case be remanded for a determination of whether to allow withdrawal of the plea or specific performance of the bargain. "The appropriate remedy is for the trial court to decide, with the defendant's preference to be accorded considerable weight." JAMES, at 852; SEE ALSO STATE v. POPE, 17 Wn. App. 609, 614-15, 564 P.2d 1179 (1977). Notwithstanding the language of IN RE PALODICHUK, 22 Wn. App. 107, 589 P.2d 269 (1978), we construe specific performance to require resentencing before a different judge with the prosecutor making the agreed-upon recommendation, without equivocation. SEE SANTOBELLO v. NEW YORK, 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971). This is in "no sense to question the fairness of the sentencing judge . . ." but to preserve integrity of the plea bargaining process. SANTOBELLO, at 263.
While our review of the record leads us to believe the trial court's determination was justified, we, nevertheless, are constrained to reverse and remand this case "even though the sentencing judge was not bound, nor even influenced, by the prosecutor's recommendation." IN RE JAMES, SUPRA at 850.
Reversed and remanded.
CONCURRING JUDGES:
Munson, A.C.J., and McInturff, J., concur.
POST-OPINION INFORMATION: