Opinion
No. 22803-7-III
Filed: March 31, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 03-1-00492-9. Judgment or order under review. Date filed: 02/18/2004. Judge signing: Hon. Gregory David Sypolt.
Counsel for Appellant(s), Tracy Scott Collins, Attorney at Law, 1011 W Mallon Ave, Spokane, WA 99201-2044.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
This is an appeal from a conviction for third degree assault with sexual motivation. Michael R. Jackson argues the State breached the plea agreement during the sentencing hearing. We agree that the State breached the agreement and we reverse and remand.
FACTS
Michael R. Jackson pleaded guilty under a plea agreement to one count of third degree assault with sexual motivation. He and the State agreed the standard range sentence for the crime was 9 to 12 months. The court requested a presentence investigation report (PSI). The PSI was not favorable.
At the sentencing hearing, the prosecutor made it clear that he did not know the contents of the PSI when he made the plea bargain. The prosecutor made several comments to the court about Mr. Jackson's past behaviors and about information contained in the PSI. The court sentenced Mr. Jackson to an exceptional sentence.
DISCUSSION
Mr. Jackson argues that the State breached the plea agreement by the prosecutor's statements to the court.
The breach of a plea agreement is a problem of constitutional magnitude that we will review for the first time on appeal. 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); RAP 2.5. We use an objective standard to review the record for a breach of the plea agreement. Van Buren, 101 Wn. App. at 213. "The test is whether the prosecutor contradicts, by word or conduct, the State's recommendation for a standard range sentence." Id. (quoting State v. Jerde, 93 Wn. App. 774, 780, 970 P.2d 781 (1999)).
A plea agreement binds the State to recommend the agreed upon sentence to the court. Sledge, 133 Wn.2d at 840; Van Buren, 101 Wn. App. at 213. The State is not required to make an enthusiastic recommendation. But it cannot undercut the agreement. Sledge, 133 Wn.2d at 840; Van Buren, 101 Wn. App. at 213. An agreement can be undercut `either explicitly or implicitly through conduct indicating an intent to circumvent the agreement.' Van Buren, 101 Wn. App. at 213; Sledge, 133 Wn.2d at 840. The State must candidly answer questions from the court, but an expression of subjective reservation about the agreement without prompting from the court effectively undercuts the agreement. Sledge, 133 Wn.2d at 840; State v. Talley, 134 Wn.2d 176, 184-85, 949 P.2d 358 (1998); Jerde, 93 Wn. App. at 780; In re Pers. Restraint of Palodichuk, 22 Wn. App. 107, 108-11, 589 P.2d 269 (1978). Nor can the State undercut the agreement `by placing emphasis on the evidence that supports findings that aggravating factors are present.' Talley, 134 Wn.2d at 186.
Here are the prosecutor's comments pertinent to our review:
As I understand it, there are specific remedies available for defendants should there be a breach of the prosecutor's agreement or withdrawal of the plea or specific enforcement. I'm not inclined to breach the plea deal and I want to — I do want to address the PSI.
On to address this, I made a deal in this case before the details were known from the PSI, and it's one of those, of course, you don't get to make the deal and know the details up front. So, in other words, the deal has to be made and then all these details come out and it is hard to digest those details.
Report of Proceedings (RP) at 38. Later the prosecutor outlined his view of Mr. Jackson:
Mr. Jackson has violated every thing and everybody in every imaginable way. . . . His thinking pattern is so completely isolated from reality and so in line with a true sex offender, a true predator, . . . . But it is consistent with a sexual — with a pedophile.
. . . .
His history is just absolutely frightening. His attorney confirms that Mr. Jackson suffers from some incorrect thinking and still has some inappropriate thoughts. No doubt. That and his proven history is disturbing.
RP at 38-39.
The prosecutor pointed out the nature of the relationship between Mr. Jackson and the victims and concluded that he had an obligation to watch out for them. He also addressed the circumstances of Mr. Jackson's 20-year-old conviction as well as comments made by Mr. Jackson at that hearing. The prosecutor noted other prior sexual acts contained within the PSI, which reflected badly on Mr. Jackson.
The State acknowledged it had reservations about the deal. Palodichuk, 22 Wn. App. at 108-11. It pointed out the most disturbing acts in the PSI; acts which led the community corrections officer to make a recommendation for an exceptional sentence. Talley, 134 Wn.2d at 186. These comments undercut the plea agreement.
We remand for the defendant to choose either to withdraw his guilty plea or to demand a new sentencing hearing before a different judge. Van Buren, 101 Wn. App. at 217-18.
Mr. Jackson makes additional arguments that he received ineffective assistance of counsel. But he has not overcome the strong presumption that he received effective assistance of counsel. State v. Shaver, 116 Wn. App. 375, 382, 65 P.3d 688 (2003); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
We reverse and remand.
A majority of the panel has determined that 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.
SCHULTHEIS, J. and BROWN, J., Concur.