Opinion
Nos. 21916-0-III, 22251-9-III
Filed: February 24, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Grant County. Docket No: 02-1-00899-5. Judgment or order under review. Date filed: 02/19/2003. Judge signing: Hon. Evan E. Sperline.
Counsel for Appellant(s), Juan Luis Alejo Blancas, 208 J St SW, Quincy, WA 98848.
Brent Adrian De Young, De Young Law Office, 1233 E Wheeler Rd, Moses Lake, WA 98837-1859.
Counsel for Respondent(s), Teresa Jeanne Chen, Grant County Prosecutors Office, PO Box 37, Ephrata, WA 98823-0037.
John Dietrich III Knodell, Attorney at Law, Pros Atty Grant Co Crthse, PO Box 37, Ephrata, WA 98823-0037.
Juan Blancas pleaded guilty to third degree assault and harassment arising out of a domestic violence incident. Mr. Blancas has filed both a direct appeal and a personal restraint petition, which we have consolidated. On appeal, he contends the prosecutor breached the plea agreement by making unsubstantiated statements of fact to the court at the sentencing hearing. In his personal restraint petition, he raises the additional contention that he was ineffectively represented at the sentencing hearing. We affirm Mr. Blancas's convictions and his sentence.
FACTS
Juan Blancas was charged with second degree assault (domestic violence), harassment (domestic violence), and unlawful imprisonment. The police report indicated that Mr. Blancas and his wife, Nicole Blancas, were involved in a domestic violence dispute. When the police arrived, Ms. Blancas was hysterical and crying. She told the police that Mr. Blancas choked her until she could not breathe and that he threatened to kill her. This incident occurred on December 23, 2002. On December 30, Brent A. De Young filed a notice of appearance and informed the court that Mr. Blancas was entering a plea of not guilty. One month later, a notice was filed stating that Guillermo Romero was withdrawing as counsel, and Mr. De Young was being substituted in his place.
Hearing. Approximately two weeks later, on February 19, 2003, the court held a hearing to consider Mr. Blancas's change of plea, pursuant to a plea agreement, and the appropriate sentence. Mr. De Young was unavailable for the hearing and arranged for Mr. Romero to represent Mr. Blancas.
The plea statement submitted at the hearing indicated that the prosecutor reserved recommendation except to request appropriate restitution. The plea statement warned of the possible consequence of deportation. Mr. Blancas stated that he signed the plea agreement after reading it.
Prosecutor's Explanation of the Charges. As part of the plea agreement, the prosecutor amended the information, charging Mr. Blancas with third degree assault, domestic violence, and harassment, domestic violence. At the same time, the prosecutor explained that he would be recommending a first time offender option, with credit for time served. Because the amended information required reasons for the amendment on the record, the prosecutor explained that the record supported the reduced charge and that Mr. Blancas had agreed to plead guilty to the charges in the amended information. The prosecutor also represented that the amended charge was agreeable to the victim and the law enforcement agency.
When explaining the charges in the amended information to the court, the prosecutor stated:
Your Honor, this involved some form of disagreement between Mr. Blancas and his wife which escalated to the point where Mr. Blancas attacked his wife with his bare hands. He choked her, apparently to the point of unconsciousness. He also threatened to kill her. We had originally charged domestic violence, I think, on the basis there was loss of consciousness. Clerk's Papers (CP) at 33 (emphasis added).
The prosecutor also represented that Mr. Blancas offered his statement and stipulated to the police reports as the basis for the plea. At sentencing, the court was also entitled to rely on the victim impact statement. RCW 9.94A.500(1). None of these documents support the prosecutor's statement that Mr. Blancas choked his wife to the point of unconsciousness.
Mr. Blancas's statement in the plea agreement reads as follows: `On December 23, 2002, I assaulted Nicole Blancas my wife with criminal negliegence [sic] in Grant County, Washington. During the same incident I threatened her and that such threat placed her in reasonable fear. The threat was that I would kill [her].' CP at 14.
Prosecutor's Sentencing Recommendation. The plea statement indicated that the prosecutor reserved recommendation except to require any appropriate restitution. When the court asked for the prosecutor's recommendation at the hearing, the following exchange occurred:
MR. KNODELL: We're recommending first time offender option, credit for time served. I think at this point we're not asking for restitution. We are asking the court to impose the condition of the community custody that Mr. Blancas have no contact directly or indirectly with the victim.
MR. ROMERO: We'd ask the court to follow the joint recommendation, Your Honor, as indicated by Mr. Knodell.
THE COURT: Mr. Blancas, is there anything you'd want to say on your own behalf?
THE DEFENDANT: No, sir.
CP at 34.
Sentencing. The court imposed a sentence within the standard range. When explaining this decision, the court stated:
There is such a seemingly endless parade of cases before this court of husbands battering their wives or men battering their girl friends, but it's odd to talk about one being different from the other. They all seem the same. Occasionally one stands out and this is one that does.
The violence here was so brutal. The impact on the family and the victim was so devastating that I can't bring myself to believe that the punishment available under the first time offender option is sufficient to adequately respond to this level of violence. The most jail time that I could impose under the first time offender option would be 90 days in jail. It is not sufficient.
CP at 34 (emphasis added).
Appeal and Personal Restraint Petition. Mr. Blancas filed this appeal and also filed a personal restraint petition. These matters have been consolidated here.
In his personal restraint petition, Mr. Blancas provides several affidavits to support his position. First, he submits the affidavits of assigned counsel, Brent De Young, and his paralegal indicating that, during an interview with the victim, neither Mr. De Young nor his paralegal heard the victim state that she had been strangled to the point of unconsciousness. Second, Mr. De Young further asserts in his affidavit that the State agreed to recommend credit for time served. Third, in his affidavit, Mr. Blancas states that his attorney informed him that the plea agreement included the State's offer to recommend credit for time served. Mr. Blancas also states that he asked Mr. Romero to object to the prosecutor's statement that the victim was choked to unconsciousness. Finally, Mr. Blancas submitted the affidavit of Mr. Romero, who states that he did not object to the prosecutor's statement despite Mr. Blancas's request.
ANALYSIS
Plea Agreement. Mr. Blancas contends the State breached the plea agreement. He did not raise this question before the trial court, but he may raise this issue here because the question has constitutional magnitude. RAP 2.5(a); State v. Walsh, 143 Wn.2d 1, 7, 17 P.3d 591 (2001); State v. Sledge, 133 Wn.2d 828, 839, 947 P.2d 1199 (1997); State v. Van Buren, 101 Wn. App. 206, 211-12, 2 P.3d 991 (2000). Terms of the Plea Agreement. The State contends there was no breach of the plea agreement because the prosecutor reserved recommendation as to sentencing. Plea agreements are contracts between the defendant and the prosecutor and are generally analyzed under basic contract principles. Sledge, 133 Wn.2d at 838. But because plea agreements implicate fundamental constitutional rights of the accused, the defendant's contract rights implicate due process considerations. Id. at 839. As a result, `[d]ue process requires a prosecutor to adhere to the terms of the agreement.' Id. Equally important, `[p]lea agreements, by their nature, tend to be less formal and rely more on implicit understandings of the State and criminal defendants and their attorneys than do contracts in a commercial context.' State v. Oliva, 117 Wn. App. 733, 779, 73 P.3d 1016 (2003), review denied, 151 Wn.2d 1007 (2004). For this reason, `the terms of an agreement are generally defined by what the defendant understood them to be when he or she entered into the plea agreement.' Id. (citing State v. Cosner, 85 Wn.2d 45, 51-52, 530 P.2d 317 (1975)).
With these distinctions in mind, we apply contract principles when construing plea agreements. See State v. Wheeler, 95 Wn.2d 799, 803, 631 P.2d 376 (1981). The goal of contract interpretation is to ascertain and give effect to the intent of the parties. See Berg v. Hudesman, 115 Wn.2d 657, 667, 801 P.2d 222 (1990). Courts accomplish this by viewing" the contract as a whole, the subject matter and objective of the contract, all the circumstances surrounding the making of the contract, the subsequent acts and conduct of the parties to the contract, and the reasonableness of respective interpretations advocated by the parties." Berg, 115 Wn.2d at 667 (quoting Stender v. Twin City Foods, Inc., 82 Wn.2d 250, 254, 510 P.2d 221 (1973)).
The State's argument is based on the assumption that our inquiry is limited to the written terms of the plea agreement. But we need not restrict our inquiry to the written terms of the plea agreement when the prosecutor has made representations to the court detailing the parties' understanding of their agreement. Here, immediately before Mr. Blancas pleaded guilty, he heard the prosecutor represent to the court that the State would be recommending a first time offender option, with credit for time served. In a recent case, In re Personal Restraint of Lord, 152 Wn.2d 182, 184, 94 P.3d 952 (2004), the court considered Mr. Lord's contention that the prosecutor breached the plea agreement when she failed to recommend that he receive a partially suspended sentence conditioned on a Special Sex Offender Sentencing Alternative (SSOSA). Specifically, the plea agreement stated that Mr. Lord receive a partially suspended sentence on the "condition' of his `successfully [sic] treatment per SSOSA.'' Id. at 191. The prosecutor revoked her agreement after the first two psychologists who saw Mr. Lord stated he was not amenable to treatment. Mr. Lord argued that the State was still bound by its agreement because a third, privately-retained psychologist found Mr. Lord amenable to treatment. On appeal, the court noted that nothing in the plea agreement supported the conclusion that Mr. Lord must first obtain a SSOSA from the sentencing court before the prosecutor had an obligation to make a sentencing recommendation. Second, the court determined the parties' intent by examining their conduct prior to the hearing on the plea agreement and the statements made by parties at the hearing. Id. Examining the plea agreement and the parties' statements, the court concluded that the parties clearly understood that the prosecutor's recommendation for a partially suspended sentence depended on Mr. Lord's eligibility for a SSOSA. Id. at 192.
In this case, the language of the plea agreement states that the State reserved its recommendation concerning sentencing; but, in court, the State made the lenient recommendation for the first time offender option with credit for time served. Specifically, the prosecutor stated: `We're recommending first time offender option, credit for time served.' CP at 34. And, defense counsel agreed to this `joint recommendation.' CP at 34. Significantly, the prosecutor's recommendation at the sentencing hearing did not contradict the terms of the written plea agreement. Hence, as in Lord, this court should interpret the plea agreement in light of the parties' conduct and statements at the sentencing hearing. Breach of the Plea Agreement. Mr. Blancas contends the prosecutor breached the plea agreement by informing the court that Mr. Blancas choked his wife until she was unconscious, an aggravating factor that was not disclosed to Mr. Blancas and that did not appear in the police reports or the victim's interview. He further argues the prosecutor's misstatement may have altered the court's decisions by highlighting the case as one that stands out because the violence was so brutal.
The State responds that the prosecutor's statements to the court did not undercut the plea agreement because Mr. Blancas cannot prove that the prosecutor failed to disclose information on the record. Moreover, the police report states that Mr. Blancas choked the victim until she could not breath. Additionally, the State argues that the prosecutor's statement was insignificant in light of the multiple aggravating factors known to the sentencing court.
`The prosecutor has a duty not to explicitly undercut the terms of the agreement or evidence an intent to circumvent the terms.' State v. Harris, 102 Wn. App. 275, 280-81, 6 P.3d 1218 (2000), aff'd sub nom., State v. Sanchez, 146 Wn.2d 339, 46 P.3d 774 (2002). `The prosecutor is obliged to make the promised sentencing recommendation but need not do so enthusiastically.' Harris, 102 Wn. App. at 281. But he must make it, and do so in good faith, not holding back any relevant information. RCW 9.94A.460; State v. Jerde, 93 Wn. App. 774, 780, 970 P.2d 781 (1999) (quoting State v. Talley, 134 Wn.2d 176, 183, 949 P.2d 358 (1998)). Also, the court is not bound by the plea agreement. Harris, 102 Wn. App. at 281 (citing former RCW 9.94A.090(2) (1995)). But, if the prosecution breaches its promise under an executed plea agreement — and the defendant pleads guilty on a false premise — the conviction cannot stand. Harris, 102 Wn. App. at 280 (quoting Sledge, 133 Wn.2d at 839-40).
Here, the record shows that the prosecutor neither breached the plea agreement nor undercut it. The prosecutor agreed to a reduction of the charges and recommended a first time offender option, with credit for time served. The prosecutor complied with his agreement. And, the record does not support Mr. Blancas's contention that the prosecutor undercut his recommendation by statements to the court. The sentencing court's observation that this crime of domestic violence was brutal is supported by the record available to the court at sentencing. The police report shows that Mr. Blancas choked his wife until she could not breath and he threatened to kill her. At sentencing, the court specifically referenced the victim's statement, wherein Ms. Blancas explained the devastating impact of the crime upon her and her family. The court's decision to impose a standard range sentence of six months, rather than a first time offender option, is readily explained by this record.
Ineffective Assistance of Counsel. Mr. Blancas also maintains that his counsel was ineffective for failing to object to the prosecutor's statement that Mr. Blancas choked his wife until she was unconscious.
A criminal defendant is entitled to effective assistance of counsel to ensure a fair and impartial trial. State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816 (1987). We presume that counsel is effective. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). The defendant must show (1) that his counsel's performance was deficient, and (2) that prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); McFarland, 127 Wn.2d at 334-35.
Counsel's performance is deficient if it falls below an objective standard of reasonableness. McFarland, 127 Wn.2d at 334-35. But deficient performance prejudices a defendant only if it is reasonably probable that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Lord, 117 Wn.2d 829, 883-84, 822 P.2d 177 (1991) (quoting Strickland, 466 U.S. at 694).
We question the premise contained in Mr. Blancas's contentions that his attorney should have made a sentencing argument based upon the distinction between choking the victim until she could not breath and choking the victim until she was unconscious. Furthermore, we conclude that even if the defense counsel should have objected to the prosecutor's unsubstantiated statement, Mr. Blancas suffered no prejudice. The court imposed a mid-range sentence of six months. The sentence is longer than the prosecutor's recommendation, but the court explained its reasoning and did not mention the prosecutor's unsubstantiated statements. For that reason, Mr. Blancas has not shown a reasonable probability that the prosecutor's unsubstantiated misstatement affected the trial court's sentencing decision.
In conclusion, we affirm Mr. Blancas's convictions and his sentence.
The 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 BROWN, J., Concur.