Opinion
No. 36466-2-II.
March 10, 2009.
Appeal from a judgment of the Superior Court for Cowlitz County, No. 06-1-00861-5, Jill M. Johanson, J., entered May 24, 2007.
Affirmed in part and remanded by unpublished opinion per Quinn-Brintnall, J., concurred in by Van Deren, C.J., and Penoyar, J.
Thomas Walter DeClue appeals the denial of his post-sentencing motion to withdraw his guilty plea to charges of second degree manslaughter and first degree unlawful possession of a firearm. He contends that the prosecutor breached the plea agreement and that his sentence failed to clearly state that his term of incarceration and community custody cannot exceed the statutory maximum term for his conviction for second degree manslaughter. We affirm the trial court's denial of DeClue's motion to withdrawal his plea, but remand for clarification of his sentence.
FACTS
On July 1, 2006, DeClue shot and killed his friend, Richard Shelburg, during an altercation in Kelso. DeClue fled the state but was apprehended in Oregon on July 3, 2006.
On July 11, 2006, the State charged DeClue with first degree murder and first degree unlawful possession of a firearm regarding the Shelburg homicide. A week before the State filed these charges, the Department of Corrections (DOC), on July 3, 2006, filed probation violation notices with the court alleging that DeClue violated his probation from an earlier conviction (cause No. 94-1-00006-1) by (1) failing to be available for contact at his reported address since July 1, 2006; (2) consuming methamphetamine on or about June 21, 2006; and (3) failing to pay his legal financial obligations.
On March 26, 2007, as part of a plea agreement in the Shelburg homicide, the State ultimately filed a second amended information charging DeClue with second degree manslaughter and first degree unlawful possession of a firearm. At the change of plea hearing, defense counsel and DeClue acknowledged that the parties had agreed that the prosecutor would recommend an exceptional sentence of 10 years. The trial court accepted DeClue's Alford plea.
North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
The plea agreement did not address the probation violations that DOC had already filed for alleged violations of DeClue's sentence in cause No. 94-1-00006-1, including the seemingly related matter of DeClue's unavailability from July 1, 2006.
At the sentencing hearing on April 6, 2007, the court stated that it had also been handed a probation violation file under cause No. 94-1-00006-1 and inquired about the three noted violations. When defense counsel stated that DeClue intended to deny the alleged probation violations, the matter was set for a later hearing. The proceedings then moved on to sentencing on the Shelburg homicide at which time the State explained to the trial court, "the parties have agreed to make a recommendation of a hundred and twenty months, which is ten years. The State does recommend that sentence to the Court." Report of Proceedings (RP) (Apr. 6, 2007) at 7. The trial court sentenced DeClue to concurrent sentences of 120 months for second degree manslaughter and 54 months for first degree unlawful possession of a firearm and also imposed 18 to 36 months of community custody.
On April 25, 2007, some two weeks after sentencing in the Shelburg homicide, the State filed a supplemental notice of probation violations in cause No. 94-1-00006-1 alleging that DeClue violated the terms of his supervision by leaving the state without permission and by possessing a firearm on or about July 1, 2006. On May 10, 2007, DeClue filed a motion to either dismiss the supplemental probation violations or to rescind his plea in the Shelburg homicide (cause No. 06-1-00861-5). On May 17, 2007, the possession of firearm allegation was dismissed on the State's motion.
As noted, DeClue fled to Oregon after killing Shelburg on July 1, 2006.
At the May 24, 2007, hearing on all remaining alleged probation violations, DeClue moved to withdraw his guilty plea in cause No. 06-1-00861-5 based on the State's April 25 allegation (in cause No. 94-1-00006-1) that he was out of the state without permission. He argued that because the additional violation arose out of the same conduct as the offenses to which he pleaded guilty, the plea negotiation included that violation. DeClue argued that the State was essentially trying to impose more time for the same offense in violation of the plea agreement. The trial court found no breach of the plea agreement and denied DeClue's motion to withdraw his guilty pleas.
The trial court ultimately found DeClue guilty of violating his probation by using methamphetamines and failing to pay his legal financial obligations. It did not find him guilty of violating his probation in cause No. 94-1-00006-1 by leaving Washington.
DeClue appealed the trial court's denial of his motion to withdraw his guilty plea and challenged the community custody portion of his sentence in cause No. 06-1-00861-5. In response, the State filed a motion on the merits pursuant to RAP 18.14. On September 18, 2008, a commissioner of this court issued a ruling granting the State's motion on the merits and affirming DeClue's judgment and sentence. DeClue moved to modify that ruling under RAP 17.7. We issue this opinion in response to DeClue's motion to modify. RAP 17.6(b).
ANALYSIS
Motion to Withdraw
DeClue appeals from the denial of his motion to withdraw his pleas of guilty to second degree manslaughter and first degree unlawful possession of a firearm. He contends that the State breached the plea agreement by charging probation violations in another case. We disagree.
Plea agreements are contracts and the State must act in good faith. State v. Sledge, 133 Wn.2d 828, 838-39, 947 P.2d 1199 (1997). Due process requires that the prosecutor adhere to the terms of the plea bargain agreement. Sledge, 133 Wn.2d at 839 (citing Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971)). The State may not undercut the terms of the plea agreement "explicitly or by conduct evidencing an intent to circumvent the terms of the plea agreement." Sledge, 133 Wn.2d at 840. The test is whether the prosecutor objectively contradicted the recommendation by use of words or conduct. State v. Talley, 134 Wn.2d 176, 187, 949 P.2d 358 (1998). In determining whether a prosecutor violated the duty to adhere to a plea agreement, we consider the entire sentencing record. State v. Jerde, 93 Wn. App. 774, 782, 970 P.2d 781, review denied, 138 Wn.2d 1002 (1999). Where the prosecutor breaches a plea agreement, the defendant is entitled to the remedy which restores him to his position before the breach. State v. James, 35 Wn. App. 351, 355, 666 P.2d 943, review denied, 100 Wn.2d 1023 (1983). Such a defendant is entitled to either withdraw his plea or have the bargain specifically enforced. State v. Miller, 110 Wn.2d 528, 536, 756 P.2d 122 (1988).
DeClue argues that in filing the April 25 probation violation alleging his absence from Washington, the State violated its duty of good faith by attempting to circumvent the terms of the plea agreement and confine him beyond the agreed 120 months. We disagree. The State did not breach its plea agreement in cause No. 06-1-00861-5. A breach occurs when the State offers unsolicited information by way of report, testimony, or argument that undercuts the State's obligations under the plea agreement. See State v. Carreno-Maldonado, 135 Wn. App. 77, 83, 143 P.3d 343 (2006); see also Sledge, 133 Wn.2d at 840-43. At sentencing, the prosecutor stated unequivocally that he recommended 120 months. He did not attempt to convince the court that DeClue deserved a different sentence.
Further, DeClue received the benefit of his bargain, a 120-month sentence for second degree manslaughter and a 54-month sentence for first degree unlawful possession of a firearm. Unlike defendants in cases where the courts have found that the State breached the plea agreement, DeClue received the exact sentence of his plea agreement. See Sledge, 133 Wn.2d at 830 (trial court imposed a sentence of 103 weeks instead of the recommended 21 to 28 weeks); Carreno-Maldonado, 135 Wn. App. at 81-82 (trial court imposed a sentence of 318 months instead of the recommended 240 months); Jerde, 93 Wn. App. at 777, 779 (trial court imposed a sentence of 497 months instead of the recommended 346 months).
Moreover, there is no evidence that the parties intended to include probation violations from an unrelated case in the plea agreement. In explaining the plea agreement to the court, the following exchange occurred:
[THE STATE]: . . . The parties have reached a settlement in this case. The State's filed an Amended Information to two counts, Manslaughter in the Second Degree and Unlawful Possession of a Firearm in the First Degree, and the Defendant has filled out a Statement on Plea of Guilty.
I've also filed a Notice to seek an exceptional sentence. The parties are in agreement that the recommendation, the joint recommendation, will be a hundred and twenty months, which is above the high end of the standard range.
THE COURT: All right.
Mr. Morgan [DeClue's trial counsel], is that an accurate representation?
MR. MORGAN: That's correct, Your Honor.
RP (Mar. 26, 2007) at 3.
Here, at the time of the plea bargain, DOC had already filed allegations that DeClue had violated his probation for conduct unrelated to the homicide (i.e., DeClue's alleged drug use and failure to pay his legal financial obligations) and for conduct related to the homicide (i.e., DeClue's unavailability from July 1, 2006). DeClue did not seek to have any probation violations resolved in the plea agreement. The entire bargain included a reduced charge and a sentence recommendation of 120 months. This is the sentence the State recommended and the trial court imposed. While DeClue could have explicitly negotiated for the resolution of both the criminal offense and any related probation violations or other conduct related to or occurring at the time of the homicide, he did not. Instead, the deal he struck with the State addressed only the criminal charge. The State did not breach the plea agreement.
Finally, that the probation violations arise out of the same conduct as DeClue's plea is not relevant. A probation violation is separate from a charged crime. See State v. Guy, 87 Wn. App. 238, 247, 941 P.2d 674 (1997) (holding that double jeopardy is not implicated where the State prosecutes a defendant for an action constituting a new offense that also serves as the basis for the enforcement of a previous sentence), aff'd sub nom. State v. Ammons, 136 Wn.2d 453, 963 P.2d 812 (1998); State v. Prado, 86 Wn. App. 573, 578, 937 P.2d 636, review denied, 133 Wn.2d 1018 (1997).
Accordingly, we hold that the State did not breach its plea agreement by filing the additional (April 25, 2007) probation violation. We also hold that the trial court did not err in denying DeClue's motion to withdraw his pleas when the State filed the additional probation violation. Sentence
DeClue also contends that remand is warranted in any event because his judgment and sentence fails to expressly set forth the maximum sentence and fails to state that the total of incarceration and community custody cannot exceed that maximum. We agree.
In sentencing DeClue, the trial court followed the State's recommendation and imposed an agreed exceptional sentence of 120 months (10 years) for count I (second degree manslaughter) and 54 months for count II (first degree unlawful possession of a firearm) for a total confinement term of 120 months. The court also imposed a community custody period for count I of 18 to 36 months.
The legislature sets the maximum punishment for every offense. State v. Vant, 145 Wn. App. 592, 605, 186 P.3d 1149 (2008). The total punishment, including imprisonment and community custody, may not exceed the statutory maximum for a particular offense. Vant, 145 Wn. App. at 605. Where a defendant is sentenced to the statutory maximum and also sentenced to community custody, the judgment and sentence should set forth the statutory maximum and clarify that the term of community custody cannot exceed that maximum. Vant, 145 Wn. App. at 605-06.
The statutory maximum term for second degree manslaughter (a class B felony) is 10 years. See RCW 9A.32.070; RCW 9A.20.021(1)(b). DeClue is correct that the judgment and sentence does not clearly set forth the statutory maximum sentence and does not clearly indicate that the total incarceration and community custody time imposed cannot exceed the maximum sentence. The judgment and sentence merely notes that count I is a class B felony. This is insufficient. Vant, 145 Wn. App. at 606-07. Remand is required. Vant, 145 Wn. App. at 607.
In compliance with Vant, we remand for resentencing to enable the trial court to clearly set forth the maximum sentence and to include clarifying language that the combined term of confinement and community custody cannot exceed that maximum.
In sum, we deny DeClue's motion to modify the commissioner's ruling to the extent it affirmed the trial court's denial of DeClue's motion to withdraw his guilty pleas. We grant the motion to modify to the extent it challenges DeClue's sentence, and we remand for clarification of his sentence consistent with this opinion.
Affirmed in part and remanded.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
VAN DEREN, C.J. and PENOYAR, J., concur.