Opinion
No. 104,516.
2013-10-11
STATE of Kansas, Appellee, v. Tiffany A. JONES, Appellant.
Appeal from Sedgwick District Court; Joseph Bribiesca, Judge. Theresa L. Barr, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, former district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Joseph Bribiesca, Judge.
Theresa L. Barr, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, former district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., PIERRON and ATCHESON, JJ.
MEMORANDUM OPINION
PIERRON, J.
The Kansas Supreme Court remanded this case for reconsideration of our previously issued opinion in light of its recent decisions in State v. Peterson, 296 Kan. 563, 293 P.3d 730 (2013), and State v. Urista, 296 Kan. 576, 293 P.3d 738 (2013). In Peterson, the Supreme Court found the prosecutor breached the plea agreement by going beyond mere correction of misrepresentations and made comments aimed at the defendant's likelihood of recidivism. 296 Kan. at 573–74. In Urista, the prosecutor breached the plea agreement by making unprovoked and “particularly grave” comments regarding her personal opinion of the defendant. 296 Kan. at 593–94.
In our case, Tiffany Jones entered a plea to aggravated robbery. The plea agreement provided the State would agree to recommend the high number in the applicable guidelines sentencing grid box and, if Jones had a criminal history of G or lower, join in her request for a downward dispositional departure to probation. Jones criminal history was I. At sentencing the prosecutor told the court, “I don't have a recommendation outside the plea agreement.” The prosecutor also contradicted defense counsel's statement that there were minor injuries, informing the court there were injuries and offering to show the court pictures. The sentencing court declined to impose a downward dispositional departure and instead imposed the presumptive guidelines sentence.
On appeal Jones argued the State had breached the plea agreement by failing to join in her request for a downward departure sentence. We found the prosecutor had not breached the plea agreement by his lackluster support for the plea agreement recommendations and the sentencing court was aware the State had agreed to a departure and the grounds for the request. We further found the prosecutor's correction of defense counsel's statement that the victim had suffered minor injuries and offer to show the sentencing court pictures did not undermine the agreement. State v. Jones, No. 104,516, 2011 WL 6309613 (Kan.App.2011) (unpublished opinion), reversed and remanded May 20, 2013 ( Jones I ).
We have considered the Supreme Court's decisions in Peterson and Urista and find these cases distinguishable from the facts of our case. Accordingly, we affirm.
Factual and Procedural Overview
We recounted the following factual and procedural background in Jones I.
“Jones, also known as Maria Coleman, entered a plea to aggravated robbery in violation of K.S.A. 21–3427, a severity level 3 person felony. Jones entered the plea agreement in exchange for the following:
‘a. The State will recommend that the Court impose the high number in the applicable sentencing guidelines grid box.
‘b. Contingent on Defendant's criminal history being “G” or lower, State will join in Defendant's request for a downward dispositional departure to probation and will recommend supervision by Community Corrections Field Services.
‘c. The agreed joint basis for dispositional departure will include: the fact that Defendant was not the sole actor in this case; the joint request of the parties; that appropriate treatment programs exist and are available that are more likely to be more effective in reducing offender recidivism, including substance abuse treatment, anger management, and mental health services; and that a non-prison sanction will serve community safety interests by promoting offender reformation.
‘d. If Defendant's criminal history is higher than “G” the State will recommend the presumption be followed.’
“The presentence investigation report indicated Jones' criminal history score was I.
“At sentencing, defense counsel advocated for a departure sentence. As part of the argument, counsel noted the ‘victim suffered only minor injuries as a result of the beating that she took. I don't believe there was any hospitalization required as a result of that. But I think the court should consider that factor.’
“In response to the district court's request for the State's comment, the prosecutor stated, ‘Judge, you know, I don't have a recommendation outside the plea agreement.’ When asked again if the State had anything to say, the following comments were made:
“ ‘[Prosecutor]: Not really, Judge. Her criminal history came back as an I.
“In looking at the plea agreement, Judge, they did anticipate that she could be possibly a G or lower. Frankly, you know, the word, there were injuries, there were photographs that would say [the victim] did not have injuries, I think, is a misstatement. But I'm sort of bound by the plea agreement, Judge, when she is a G or lower, to follow the plea agreement that was negotiated in this case. “.... So, as far as that goes, Judge, about the only thing I could add to statements, I could show you injuries if that would be helpful to the court. So, given that, Judge, I have nothing to add.'
“The district court indicated it wanted to see the pictures ‘since there is not an agreement as to the extent of the injuries.... And the court doesn't see that as going outside the plea agreement, there is just a disagreement as to the extent of the injuries.’
“The victim was present at the sentencing hearing and gave substantial testimony concerning the trauma her young children suffered after witnessing the crime. Additionally, the victim testified that her injuries were significantly more than minor, contrary to defense counsel's earlier representation.
“The district court imposed a mid-range guidelines sentence of 59 months in prison. The court denied the motion for departure stating, ‘As far as the motion to depart, the court, when it weighs the gravity of the offense with what's been advocated on her behalf this morning, the court is unable in good conscious to find substantial and compelling reasons to depart. The motion is denied.’ “ 2011 WL 6309613, at *1–2.
A majority of the Jones I court found the prosecutor had not breached the plea agreement and affirmed. 2011 WL 6309613, at *4–5. On May 20, 2013, the Supreme Court granted Jones' petition for review, summarily reversed our decision, and remanded the case to us for reconsideration in light of Peterson and Urista.
Standard of Review
An allegation the State breached a plea agreement presents a question of law. Thus, this court exercises unlimited review. Peterson, 296 Kan. at 567.
Peterson provides us with further considerations.
“A plea agreement is a contract between the State and the accused, and the exchanged promises must be fulfilled by both parties. See Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). ‘An expectation inherent in all plea agreements is that each party will honor the terms of the agreement.’ Woodward, 288 Kan. at 300 (citing State v. Boley, 279 Kan. 989, 992, 113 P.3d 248 [2005] ). The State's breach of a plea agreement denies the defendant due process. See Santobello, 404 U.S. at 265–67 (Douglas, J., concurring); State v. Wills, 244 Kan. 62, 65, 765 P.2d 1114 (1988) (citing Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 [1984] );State v. Foster, 39 Kan.App.2d 380, Syl. ¶ 1, 180 P.3d 1074,rev. denied 286 Kan. 1182 (2008). ‘If the State fails to perform its obligations under a bargained plea agreement, then the court must decide whether justice requires that the promise be fulfilled or whether the defendant should have the opportunity to withdraw his or her plea.’ Woodward, 288 Kan. 297, Syl. ¶ 2.
“ ‘[A]pplication of fundamental contract principles is generally the best means to fair enforcement of a plea agreement, as long as courts remain mindful that the constitutional implications of the plea bargaining process may require a different analysis in some circumstances.’ State v. Copes, 290 Kan. 209, 217, 224 P.3d 571 (2010).” Peterson, 296 Kan. at 567.
Peterson
In Peterson, the Supreme Court found the State had violated the plea agreement that in part provided the State would not object to Peterson's motion for dispositional departure to probation. The State also agreed to remain silent at sentencing unless there were misstatements of fact.
In the first of two sentencing hearings, the district court found Peterson to be a persistent sex offender. At that hearing, Peterson called a clinical psychologist who testified Peterson would be a good candidate for probation. Peterson allowed the prosecutor to cross-examine the psychologist. The prosecutor focused her questioning on information Peterson had not provided to the psychologist in rendering his opinion. In response to Peterson's suggestion that the prosecutor was violating the plea agreement, the prosecutor argued:
“ ‘[I]t does show Mr. Peterson wasn't being honest with the evaluator about what his involvement was in this particular case or in his other case, and I think that should be considered by the court that he cannot or will not address his looking at child pornography or desire to look at child pornography. That's all I have to say.’ “ 296 Kan. at 566.
At the second sentencing hearing, the district court denied Peterson's dispositional departure motion and sentenced him to 52 months in prison with lifetime postrelease supervision.
On appeal to our court, the Peterson panel found the case was similar to that in State v. Woodward, 288 Kan. 297, 302, 202 P.3d 15 (2009) (the State is not required to ignore defense's attempts to minimize the defendant's culpability), and held the prosecutor was not required to stand silent at sentencing. The Supreme Court granted review and reversed.
The Peterson court found plea agreements typically involve three types of promises prosecutors make that govern their conduct at sentencing: “(1) a promise to recommend a mutually agreed upon sentence; (2) a promise to take no position on a portion or specific aspect of the sentence, e.g., whether consecutive or concurrent sentences should be imposed; and (3) a promise to remain silent at sentencing.” 296 Kan. at 569.Woodward, according to the court, controls the first type of promise, and, in Peterson's case, the prosecutor promised to remain silent, the third type of promise.
Nevertheless, the Peterson court found a promise to remain silent has its limits and if a defendant's minimization or other tactics rise to misimpressions, the prosecutor has a duty to the district court to correct such misimpressions, albeit not to the extent it constitutes an end-run around the prosecutor's plea agreement promise. Consequently, the court held the prosecutor's questions challenging the factual basis for the psychologist's opinion were appropriate and did not violate the plea agreement. But the prosecutor did not stop at correcting the misimpression. The prosecutor told the court Peterson's dishonesty to the psychologist should be considered by the court and that Peterson could not or would not address his child pornography problem, a comment the Supreme Court concluded was aimed directly at Peterson's likelihood of recidivism and a key issue when a sentencing court considers a dispositional departure to probation. 296 Kan. at 572–74.
The Peterson court held the prosecutor had breached the plea agreement to stand silent. Although the standard for constitutional harmless error may apply in this situation, the court found the State had failed to pursue such an argument. Thus, the State had failed to prove there was no reasonable possibility that the error contributed to the sentence. 296 Kan. at 574.
Urista
In Urista, the Supreme Court also found the State had violated the plea agreement. In that case the plea agreement provided the State would agree to recommend imposing the standard sentence for the base offense and that all sentences run concurrently.
At sentencing the prosecutor said, “ ‘Your Honor, there's a written plea agreement in this case and the State's going to ask you to follow that written agreement.’ “ 296 Kan. at 579. The prosecutor then gave extensive statements regarding Urista's prior juvenile adjudications, his affiliation with a street gang, his current conviction, and information contained in the victim impact statements. Additionally, the prosecutor made several statements that conveyed a “negative and fatalistic” opinion of Urista, which included statements like: “ ‘He's a very dangerous young man.... This young man has absolutely no remorse .... [t]his is a young man who is extremely street savvy, and has absolutely no qualms about shooting somebody. He is a menace to this community....’ “ 296 Kan. at 579–80. The district court rejected the parties' sentencing recommendations and imposed consecutive sentences for Urista's three aggravated robbery convictions.
On appeal, a panel of our court held, in part, that the prosecutor had not violated the plea agreement because her statements were not sufficient to negate the sentencing recommendations in the plea agreement. The Supreme Court granted review and reversed.
The Urista court found the State can breach a plea agreement even if it makes the promised sentencing recommendation in the event the prosecutor's additional comments undermine the sentencing recommendation. In that context, the court provided the following relevant factors to consider: (1) Courts must consider the terms of the plea agreement—do the terms prohibit the prosecutor from making the comments at issue; (2) are the comments made in response to defense counsel's arguments at sentencing; and (3) courts should consider the level of discretion the district court had to impose the recommended sentence. 296 Kan. at 584–92.
In Urista, the State had not negotiated away its right to speak at the sentencing hearing, and the prosecutor had a right to present information relevant to the sentencing court's decision. But the prosecutor's comments went far beyond a mere factual description of the crimes or summary of the victims' statements. The Urista court viewed the prosecutor's particularly negative editorializing, unprovoked by defense counsel's argument, as effectively arguing against the parties' recommended sentence and a breach of the plea agreement. 296 Kan. at 592–94. The court concluded since the State's central promise of the plea agreement had been breached by the prosecutor's comments at sentencing—and Urista timely objected to the comments—the breach was not harmless. 296 Kan. at 595. Application of Peterson and Urista to Jones
In our case, the State made a promise to recommend the agreed upon sentence and join in Jones' request for a downward dispositional departure to probation. The plea agreement did not prohibit the State from making any further comments. As to whether the State fulfilled its promise, we acknowledged “the prosecutor came close to recommending nothing. The prosecutor merely stated there was no recommendation ‘outside the plea agreement,’ and I'm sort of bound by the plea agreement ... to follow the plea agreement that was negotiated in this case.' “ Jones, 2011 WL 6309613, at *4. Nonetheless, we found the State had not breached the plea agreement. Although the sentencing court would have been required to make findings before it could impose the downward dispositional departure, the court was aware of the parties' recommendations in the agreement and that the State had agreed to a departure and the grounds to support a departure. We concluded the prosecutor did not advocate against the plea agreement. 2011 WL 6309613, at *4.
Unlike Peterson and Urista, the prosecutor did not make any comments that were aimed at defeating or making an end-run around Jones' request for a departure sentence. The prosecutor merely disagreed with defense counsel's assertion the victim's injuries were minor and offered to show the court pictures. The prosecutor's comments went no further. The comments did not touch upon the likelihood of Jones' recidivism or state a negative opinion on her nature or character. Finally, the agreed basis for departure did not include the victim's injuries, minor or otherwise, and Jones did not object to the State's comments.
Therefore, we find the instant case is factually distinguishable from Peterson and Urista on the critical issues involved. We affirm the sentence.
Affirmed.
ATCHESON, J., dissenting.
The Kansas Supreme Court summarily reversed the majority's decision that the State honored the plea agreement made with Defendant Tiffany Jones and remanded so that we might consider its recent rulings in State v. Urista, 296 Kan. 576, 293 P.3d 738 (2013), and State v. Peterson, 296 Kan. 563, 293 P.3d 730 (2013). The majority's largely retooled decision sticks with the same wrongheaded result and, in doing so, misapplies Urista and Peterson as if they establish the minimal factual circumstances necessary to find the State has breached a plea agreement. Those cases do no such thing. The majority also misconstrues the record in this case and fails to fully address the principal breach of the plea agreement requiring relief for Jones. I, therefore, continue to respectfully dissent and rely largely on my previous explanation with some elaboration.
In this case, the prosecutor appearing at Jones' sentencing in Sedgwick County District Court failed to adhere to the plea agreement requiring the State to affirmatively join in a request for probation at the hearing and instead offered comments that were thoroughly pallid and entirely grudging, thereby sending a message to the district court of indifference, at best, and, more likely, reluctance. A prosecutor need not come to a sentencing hearing with pom-poms and a megaphone to promote a plea agreement. But the State's representative must make a good-faith effort to support the negotiated agreement. Both Urista, 296 Kan. at 583 (implied covenant of good faith and fair dealing recognized in most contracts applies to plea agreements), and Peterson, 296 Kan. at 567 (contract principles generally guide enforcement of plea agreements), say as much. That was lacking here. Accordingly, I would reverse and remand for resentencing in front of another district court judge with the direction that the State honor its plea bargain. The State's failing not only deprived Jones of the benefit of that bargain, it undercut the basic fairness and, thus, the institutional integrity of both the plea bargaining process and the criminal justice system in which the vast majority of cases are resolved through such agreements.
In this case, Jones pled guilty to aggravated robbery, a severity level 3 person felony. As outlined in the majority opinion, the plea agreement required that the State “will join in” her request for a downward dispositional departure to probation if she had a minimal criminal history, “will recommend” a community corrections placement, and acknowledge the specified circumstances warranting the departure sentence. The agreement required Jones admit her guilt, waive a jury trial, and relinquish her attendant constitutional rights and protections. Jones fulfilled her part of the bargain. The presentence investigation report showed that she had one misdemeanor conviction that could be scored for criminal history purposes, placing her in the lowest category on the sentencing grid. That satisfied the condition precedent to the State's obligation to join in the request for probation, to recommend community corrections, and to otherwise support the downward departure.
At sentencing, the prosecutor told the district court he really didn't have anything to say and added: “I'm sort of bound by the plea agreement.” The prosecutor then disputed that the victim of the robbery had no physical injuries. But counsel for Jones never claimed the victim suffered no injuries, only that they were minor. The victim spoke to the district court judge at sentencing and said nothing to suggest she had more than minor injuries. Her remarks seemed to confirm that assessment. The victim, however, was with her two young children when she was robbed. Jones hit the victim at least several times, knocked her down, and grabbed her purse. The victim told the judge that her children had been emotionally traumatized by the event and continued to be fearful. Neither the prosecutor nor Jones' lawyer had mentioned the children in their remarks to the district court.
Ultimately, the kerfuffle over the victim's physical injuries is a secondary consideration, although the majority elevates it to a primary position and mischaracterizes it. The majority says “[t]he prosecutor merely disagreed with defense counsel's assertion the victim's injuries were minor” and cites that as a key reason to find no breach of the plea agreement. But the record of the sentencing hearing shows that Jones' lawyer consistently characterized the victim's injuries as minor, while the prosecutor sought to refute a straw-man argument that the victim had no physical injuries.
The real problem here was the failure of the prosecutor to fulfill the State's obligations under the plea agreement to affirmatively join in the recommendation for probation in open court at the sentencing. Apart from the generic acknowledgment that a plea agreement existed, the prosecutor never said any more about it. He didn't so much as mention the obligations the agreement placed on the State, let alone make some effort to honor them. The district court imposed a standard sentence, sending Jones to prison for nearly 5 years. In doing so, the district court specifically pointed out and discounted Jones' sentencing memorandum requesting the downward departure consistent with the plea bargain. But the district court made no mention of the plea agreement whatsoever.
A plea agreement essentially entails a contract between the State and a criminal defendant in which each promises something to the other in a bargain they view as mutually beneficial. State v. Copes, 290 Kan. 209, 217, 224 P.3d 571 (2010); State v. Foster, 39 Kan.App.2d 380, 388–89, 180 P.3d 1074,rev. denied 286 Kan. 1182 (2008). The State avoids the time, expense, and uncertainty of a trial. The defendant also avoids that uncertainty and typically secures from the State a reduction in the criminal charges or a promise of a recommendation to the court about punishment—sometimes both. By entering into a plea agreement, the defendant also gives up significant constitutional rights.
Because of the contractual nature of plea agreements, the rules of contract law generally apply to their interpretation and operation. Urista, 296 Kan. at 583;Peterson, 296 Kan. at 567;Copes, 290 Kan. at 217. The Kansas courts have recognized that contracts, apart from at-will employment agreements, contain covenants of good faith and fair dealing. Morriss v. Coleman Co., 241 Kan. 501, 514–15, 518, 738 P.2d 841 (1987). Similarly, the Kansas courts hold that “contractual provisions requiring the exercise of judgment or discretion will be honestly exercised and faithfully performed.” Lessley v. Hardage, 240 Kan. 72, Syl. ¶ 7, 727 P.2d 440 (1986). In Urista, the court specifically recognized that those principles govern plea agreements. 296 Kan. at 583; see Foster, 39 Kan.App.2d at 388–89. The parties to a plea agreement, therefore, must act fairly and in good faith in carrying out the promises they have made.
Because the agreements affect the constitutional rights of criminal defendants and may have a material impact on their liberty, the State's failure to hold up its end amounts to a denial of due process. Peterson, 296 Kan. at 567;Foster, 39 Kan.App.2d at 390; see United States v. VanDam, 493 F.3d 1194, 1203 (10th Cir.2007) (Affording a remedy for the government's breach of a plea agreement serves the “interests of justice” and “implicates, at a minimum, principles of fundamental fairness.”). The modern law of plea agreements often traces back to Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). There, the United States Supreme Court stated: “[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” 404 U.S. at 262. Much of that law was laid out in detail in Foster, 39 Kan.App.2d at 387–89, and has been restated in Urista, 296 Kan. at 583–86, and Peterson, 296 Kan. at 567.
Although a plea agreement does not bind the district court, the recommendation of the State as to punishment typically is thought of as having some persuasive influence on a sentencing judge. State v. Boley, 279 Kan. 989, 993, 113 P.3d 248 (2005) (confirming the settled principle that plea agreements do not bind the court). Were those agreements routinely disregarded or otherwise ineffective, they would be far less beneficial to defendants and far less common. It stands to reason, then, that most district courts will give substantial consideration to the State's recommendation on punishment in a given case. When a prosecutor stands up in court and tells a judge the State joins in a recommendation for a certain sentence, that carries some weight. In considering whether the State has met its obligations under a plea agreement, appellate courts certainly may indulge that assumption.
Indeed, in Urista, the court recognized that “the State can breach a plea agreement by explicitly failing to fulfill an agreed-upon promise, such as failing to make a sentencing recommendation to the district court that it promised it would make.” 296 Kan. at 583–84. That's what happened here. The State didn't make the recommendation at the sentencing hearing that the plea agreement required.
The State's promise, as set out in the agreement, entailed future performance: joining in Jones' request for a downward departure at sentencing, recommending at that time that Jones be placed in community corrections, and recognizing the validity of specific reasons for that outcome. The prosecutor appearing at sentencing did nothing even approaching what the agreement required. He barely acknowledged a plea agreement had been reached and then suggested the State was “sort of bound” by it. That's not good enough. If it were, I suppose Jones ought to have been allowed to “sort of plead guilty to fulfill her part of the bargain.
At the sentencing hearing, the prosecutor had an obligation to articulate the State's position in support of the agreement generally and of its component parts. The prosecutor, however, was not required to gild the lily by declaring the agreement to be among the best he had ever seen or eminently just or proclaiming the defendant especially deserving of mercy. The prosecutor's statement here might—charitably—be characterized as “lip service” to the existence of an agreement. Lip service alone does not satisfy the State's obligation. Foster, 39 Kan.App.2d at 387;United States v. Frazier, 340 F.3d 5, 12 (1st Cir.2003); United States v. Taylor, 77 F.3d 368, 371 (11th Cir.1996) (“[T]he ‘lip service’ the government paid the agreement did not cure its breach.”). In addition, the signal the prosecutor sent at the sentencing hearing was not one of good-faith support for the terms of the agreement; the message plainly was one of unspoken disdain. See Frazier, 340 F.3d at 12 (“Instead, the prosecution's ‘overall conduct must be reasonably consistent’ with the promises contained in a plea agreement.”) (quoting United States v. Canada, 960 F.2d 263, 269 [1st Cir.1992] ).
The majority papers over the State's rank disregard of the plea agreement by concluding “the [district] court was aware of the parties' recommendations.” But that conclusion is hardly plain from the record. The district court judge taking Jones' plea and going over the agreement in detail at that time was not the judge imposing sentence. Those circumstances only enhance the duty on the State to be forthcoming at the sentencing hearing in making known fully and fairly its position on punishment. As I have noted, the district court judge imposing sentence on Jones did not so much as mention the plea agreement or explain his marked deviation from it. The district court judge, however, specifically stated he reviewed the presentence investigation report and Jones' motion for a downward departure. The report doesn't set out the terms of the plea agreement. And the motion isn't in the record, so we don't know about it. The written plea agreement was not entered in the district court file as a distinct document; it appeared only as an unidentified exhibit to Jones' Acknowledgment of Rights and Entry of Plea. As a result, it wasn't patently catalogued in the court file. A sentencing court, of course, is not obligated to offer an explanation for rejecting a plea agreement. But the absence of that explanation and so much as even a direct reference to the plea agreement suggest the district court judge may not have fully appreciated the scope and terms of the agreement.
Moreover, as I have stated, the plea agreement in this case required the State to affirmatively join in the recommendation for probation at the sentencing hearing. I question whether the district court's review of a written plea agreement in the court file—even assuming that happened—would satisfy the State's agreed-upon obligation to endorse the recommended sentence on the record at the hearing.
Had the State found the terms of the agreement with Jones unpalatable, it should not have struck the bargain in the first place. The State could have made some other deal in which it reserved the right to oppose probation, to stand silent, or something else altogether. The State, however, did not have the right to make a bargain and then torpedo its terms with a performance conveying distaste. That cannot be considered good faith.
The dividing line between acceptable, though minimal, support for a plea agreement and legally insufficient backing may be difficult to discern in circumstances falling close to that line. Anytime the law draws a line that tends to be true. For example, there isn't much to distinguish a case filed the day before the statute of limitations expires and one filed the day after in terms of delay or elapsed time. To be sure, the basic standard for determining a violation of a statute of limitations is much clearer than the standard for breach of a plea agreement. Here, however, the State's performance at sentencing is far from the line and falls on the insufficient side.
Ultimately, the majority concludes that Jones gets no relief because the circumstances here are “factually distinguishable” from Peterson and Urista “on the critical issues.” The majority identifies the critical issue to be the false conflict over the extent of the victim's injuries. But that isn't the issue at all. The State's material breach of the agreement lay in its failure to endorse at the hearing Jones' request for probation and the circumstances supporting that departure sentence. Jones' argument on appeal correctly focused on that failure—not the debate over the victim's injuries. So the majority denies relief to Jones by ignoring her primary argument.
The factual distinctions between Peterson and Urista, on the one hand, and this case, on the other, would compel denial of relief to Jones—as the majority reasons—only if those decisions have established legally necessary factual predicates for relief rather than legally sufficient sets of conditions warranting relief. That is, the majority's analysis holds up only if the State's actions in Peterson and Urista represent the minimum required to breach a plea agreement and anything less severe does not as a matter of law. But neither Peterson nor Urista purports to draw that line. Rather, the decisions simply recognize the conduct at issue there required relief. So an argument that the State's performance here might not be as bad is unsound both legally and logically as a reason, in and of itself, to deny Jones relief, although it would reflect a factual distinction. The majority, however, offers no more.
In Peterson, the court held that the State does not breach a plea agreement to remain silent on the sentence when the prosecutor corrects factual misrepresentations the defendant has made to the district court at the sentencing hearing. 296 Kan. at 571–72. In that case, the prosecutor did not violate the agreement when she demonstrated that an expert witness testifying for the defense at sentencing relied on demonstrably incomplete and inaccurate information—including unduly favorable characterizations the defendant offered about himself—in reaching his conclusions. But the prosecutor did breach the agreement to stand silent on the sentence when she then argued to the district court that the defendant's statements to the expert witness ought to be considered in fixing punishment and intimated they pointed toward an increased likelihood of recidivism. 296 Kan. at 573–74. Based on that one argument, the court reversed and remanded for resentencing. 296 Kan. at 575. In Peterson, the State committed reversible error with a single statement when it had agreed not to speak. Here, the State made no statement when it had agreed to speak. That is, indeed, factually distinguishable. But I fail to see much of a meaningful legal distinction.
In Urista, the prosecutor acknowledged the written plea agreement and the specific punishment it recommended in addressing the district court at sentencing but then made a detailed argument focusing on the young defendant's extensive juvenile history, characterizing him as remorseless, and predicting for him a future of violent criminal behavior. 296 Kan. at 579–80. The district court judge, who handled both the plea and the sentencing, imposed a controlling punishment of 204 months—twice what the plea agreement recommended. As I have noted, the court recognized that the State may breach a plea agreement by failing to make a sentencing recommendation that it promised. 296 Kan. at 583–84. But the court also pointed out that the State may voice the recommendation, as happened in Urista, and still breach the agreement by making arguments effectively undercutting or disparaging the recommendation. 296 Kan. at 584. The prosecutor's argument about Urista did just that, so the court reversed and remanded for resentencing. 296 Kan. at 595–96. The breach in this case is of the first type mentioned in Urista—the State failed to do what it promised at sentencing—rather than what happened in Urista—the State did what it promised and then effectively negated the promise with additional argument. The circumstances in Urista are, therefore, factually distinguishable and arguably more egregious. But the factual differences don't create a legal distinction mandating that this court affirm.
The importance of the State's obligation to honor plea agreements extends far beyond this case, although the breach here inexcusably has denied Jones her constitutional due. The criminal justice process depends upon fair dealing in plea bargaining. In Santobello, 404 U.S. at 261, the United States Supreme Court recognized plea bargaining to be “not only an essential part of the [criminal justice] process but a highly desirable part for many reasons.” The “interests of justice,” thus, require that prosecutors adhere to their bargains inducing defendants to plead guilty and that defendants be afforded meaningful relief in the event of a breach. 404 U.S. at 262–63. To avoid handing prosecutors a license to treat their plea bargains cavalierly, the appellate courts require defendants show breach alone to obtain relief. VanDam, 493 F.3d at 1204. The result preserves “the integrity of the judicial system” and protects against “institutional harm [that] ... transcends any prejudice that a single defendant might suffer.” 493 F.3d at 1204–05 (cases cited).
Ultimately, however, once a breach has been established, a defendant need not prove actual prejudice—that would be a difficult task in a specific case. Santobello, 404 U.S. at 262–63 (defendant entitled to relief for breach of plea agreement without showing prejudice); Foster, 39 Kan.App.2d at 390 (same). In Peterson, the court suggested the State might avoid a reversal and remand for resentencing if it could prove beyond a reasonable doubt that its breach of the plea agreement had no effect on the punishment the district court imposed. 296 Kan. at 574. And in Urista, the court indicated a defendant might be entitled to no relief if the plea agreement “had little, if any, influence” on his or her decision to plead. 296 Kan. at 594–95.
Here, the State has argued only that the plea agreement was not breached. In neither its original brief nor in the supplemental brief we invited following remand has the State suggested that if there were a breach, Jones, nonetheless, should be denied a remedy. That alternative argument is not before us. In any event, I think it improbable the joint sentencing recommendation for probation was anything less than a major factor in Jones' decision to enter a plea. And I am not prepared to say beyond a reasonable doubt that had the prosecutor honored the agreement by actually joining in the recommendation for probation in open court at the sentencing hearing that the result would have been the same.
The appropriate remedy when the State breaches a plea agreement takes either of two forms. The defendant may be granted specific performance of the agreement, requiring remand for resentencing in front of another judge with the State fulfilling its obligations under the agreement. See Peterson, 296 Kan. at 574 (describing resentencing in front of a different judge as the typical remedy). Alternatively, the court may permit a defendant to withdraw his or her plea and proceed from that point either to negotiate a new agreement or to go to trial. See Santobello, 404 U.S. at 262–63;Peterson, 296 Kan. at 574;VanDam, 493 F.3d at 1206. The relief, of course, does not impair the merits of the underlying criminal charge or the ability of the State to prosecute fully that charge. In this case, Jones has opted for specific performance. Under the circumstances, she is entitled to that relief, and I would so rule.