Opinion
No. 106,255.
2013-02-15
STATE of Kansas, Appellee, v. Raul Manuel MAGALLANEZ, Appellant.
Appeal from Lyon District Court; W. Lee Fowler, Judge. Kristen B, Patty, of Wichita, for appellant. Amy L. Aranda, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Lyon District Court; W. Lee Fowler, Judge.
Kristen B, Patty, of Wichita, for appellant. Amy L. Aranda, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., BUSER and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Raul Manuel Magallanez alleges the State violated his right to due process when it recommended the aggravated Kansas Sentencing Guidelines Act (KSGA) sentence for each of two counts of aggravated indecent liberties with a child. Specifically, Magallanez claims the county attorney's recommendation violated the parties' written plea agreement, which obligated the State to recommend the standard KSGA sentence for each count. For the reasons stated below, we affirm the sentence imposed.
Facts
Following a 3–week jury trial, Magallanez was convicted of 49 counts in 3 child sexual abuse cases tried together by the district court. On direct appeal, the Kansas Supreme Court found the cumulative effect of five errors substantially prejudiced his right to a fair trial. As a result, the court remanded all but two counts, which were reversed on jurisdictional grounds. State v. Magallanez, 290 Kan. 906, 926–27, 235 P.3d 460 (2010).
On remand, Magallanez executed a plea agreement with the State in which he agreed to enter a no contest plea to two counts of aggravated indecent liberties in one case in exchange for dismissal of the remaining charges in all three cases. Shortly thereafter, Magallanez pled no contest to the charges as contemplated in the plea agreement. The court later permitted Magallanez to withdraw his plea based on a mutual mistake between the parties regarding the term of postrelease supervision applicable to his convictions.
On March 4, 2011, Magallanez executed a new plea agreement with the State in which he again agreed to enter a no contest plea to two counts of aggravated indecent liberties in exchange for dismissal of the remaining charges in all three cases. This March 4, 2011, plea agreement is a typed document with handwritten markings, each of which appear to represent the parties' intention to add, delete, or modify typed language. The typed language in both paragraph 5.b and paragraph 5.g reflect an agreement by the parties that each side would recommend the court to impose the standard KSGA sentence for each of the two counts to which Magallanez pled no contest. At some point before the document was executed, however, the typed language in paragraph 5.g regarding recommendation of a standard sentence was deleted using a pen and initialed by the attorneys. Relevant to the issue presented on appeal, the corresponding language in paragraph 5 .b was not deleted or modified in any way.
The plea hearing was held the same day the plea agreement was executed. At this hearing, Magallanez' attorney recited the terms of the plea agreement and advised the court that the State “was going to argue for the sentence that [it] believed would be appropriate within the grid box” and “whatever terms the county attorney feels is appropriate.” After recitation of the plea agreement, the court asked Magallanez if the agreement as recited by his attorney was his agreement, and Magallanez said yes.
At sentencing, the county attorney recommended the court “impose the aggravated sentence” for each count and “that they should be run consecutively.” Magallanez' attorney argued for the mitigated KSGA sentence to run concurrently. The court found Magallanez' criminal history classification was F and sentenced him to the aggravated KSGA prison term on each count of aggravated indecent liberties, 83 and 61 months, to run consecutively.
Analysis
On appeal, Magallanez argues the State breached the plea agreement by recommending to the court that it impose the aggravated KSGA sentence instead of the standard sentence as required under paragraph 5.b of the written agreement. Alleging this breach violated his right to due process, Magallanez requests the court to vacate his sentence, direct the county attorney to comply with the written plea agreement, and remand for a new sentencing hearing before another district court judge.
I. Jurisdiction
Before we can consider whether the State breached its plea agreement, we must have jurisdiction over the matter. Neither party raises this issue on appeal; however, an appellate court has a duty to question jurisdiction on its own initiative. State v. Comprehensive Health of Planned Parenthood, 291 Kan. 322, 352, 241 P.3d 45 (2010). Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. State v. Ellmaker, 289 Kan. 1132, 1147, 221 P.3d 1105 (2009), cert. denied130 S.Ct. 3410 (2010). A. Failure to Raise Issue Below
Magallanez did not object when the State allegedly breached the plea agreement in making its sentencing recommendations to the district court. Ordinarily, an issue not raised in the district court cannot be raised on appeal. State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008). But appellate courts make an exception to this general rule when the issue presented alleges deprivation of a fundamental right. State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010); State v. McDonald, 29 Kan.App.2d 6, 9, 26 P.3d 69 (2001). Because a criminal defendant's due process rights are implicated when the State breaches a plea agreement, State v. Chesbro, 35 Kan.App.2d 662, 673, 134 P.3d 1,rev. denied 282 Kan. 792 (2006), the issue presented by Magallanez comes within the exception to this general rule. B. Presumptive Sentence
The district court imposed the aggravated KSGA sentence within the presumptive grid box. A defendant typically is barred from appealing a presumptive guidelines sentence because this court lacks statutory authority to review such a sentence. K.S A. 21–4721(c)(1). As our Supreme Court recently explained, this statutory provision represents an intention by the legislature to remove presumptive sentences from appellate review, even when appeals are based on a claim of prejudice or corrupt motive by the court or a court error involving a constitutional right. State v. Huerta, 291 Kan. 831, 835–37, 838, 247 P.3d 1043 (2011).
But unlike the defendant in Huerta, Magallanez does not base his appeal on a court sentencing error that violated his fundamental rights under the Constitution. Instead, Magallanez claims the State's breach of the plea agreement in this case deprived him of his constitutional right to due process. This court previously has recognized an exception to the statutory prohibition against appealing a presumptive sentence when the defendant contends the State has violated a plea agreement. See Chesbro, 35 Kan.App.2d at 673. Although pre- Huerta, the rationale justifying the exception set forth in Chesbro remains sound: a due process challenge to the prosecutor's failure to honor a plea agreement is directed to actions taken by the State and not to actions taken by the court. And, if the court ultimately finds that the State breached a plea agreement, the remedy is reversal and remand without requiring the defendant to show prejudice in the sentence itself. See Santobello v. New York, 404 U.S. 257, 262–63, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (defendant entitled to relief for breach of plea agreement without showing prejudice); State v. Foster, 39 Kan.App.2d 380, 390, 180 P.3d 1074 (same), rev. denied 286 Kan. 1182 (2008). In Santobello, the United States Supreme Court essentially likened the State's breach of a plea agreement to a structural error transcending the individual case and going to the integrity of the criminal justice process. Because such an error erodes the overall sentencing scheme, we conclude that the holding in Chesbro has not been undercut by the Huerta decision. We therefore have jurisdiction to consider the limited argument made here by Magallanez—that the State breached its plea agreement by recommending to the court that it impose the aggravated KSGA sentence instead of the standard sentence.
II. The Plea Agreement
A plea agreement is 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. See State v. Copes, 290 Kan. 209, 217, 224 P.3d 571 (2010); Foster, 39 Kan.App.2d at 388–89. “[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.” Copes, 290 Kan. at 217.
“The primary rule for interpreting written contracts is to ascertain the parties' intent.” Carrothers Constr. Co. v. City of South Hutchinson, 288 Kan. 743, 751, 207 P.3d 231 (2009). Absent ambiguity, courts do not construe contracts but merely enforce the contract terms in accordance with their plain and ordinary meanings. Hall v. Shelter Mutual Ins. Co., 45 Kan.App.2d 797, 803, 253 P.3d 377 (2011), rev. denied 293 Kan. –––– (February 17, 2012). A contract is ambiguous if its terms are reasonably open to more than one meaning or the meaning of the language used is uncertain. ARY Jewelers v. Krigel, 277 Kan. 27, 35, 82 P.3d 460 (2003). When a contract is ambiguous, the court must resort to the rules of construction in order to interpret it. Those rules require looking beyond the literal words of the contract and considering “ “ “all language employed, the circumstances existing when the agreement was made, the object sought to be attained, and other circumstances, if any, which tend to clarify the real intention of the parties.” “ “ Wichita Arms, Inc. v. Wichita Precision, No. 103,866, 2011 WL 4031509, at *3 (Kan.App.2011) (unpublished opinion), rev. denied 294 Kan. (May 21, 2012). When a contract is ambiguous as to a material point, parol evidence will be admitted to help in its construction. Ives v. McGannon, 37 Kan.App.2d 108, 118, 149 P.3d 880 (2007). A plea agreement deemed ambiguous must be strictly construed in favor of the defendant. State v. Wills, 244 Kan. 62, Syl. ¶ 1, 765 P.2d 1114 (1998).
Having set forth the applicable law, we turn to the question presented on appeal. As framed by the parties, the threshold issue for decision is whether the terms of the written plea agreement here are ambiguous. Although we will address the ambiguity issue as framed by the parties, we also will engage in an alternative analysis of the issue without regard to the question of ambiguity. Regardless of which analysis is used, however, our conclusion is the same: the parties did not agree that they would be limited to recommending only the standard grid sentence. In the absence of such an agreement, the State did not breach the plea agreement by recommending the aggravated sentence. A. Simultaneously Deleting a Provision in One Paragraph But Retaining the Same Provision in Another Renders the Plea Agreement Ambiguous and Permits the Court to Consider Parol Evidence to Determine the Intent of the Parties
On the second page of the written agreement submitted to the court, the parties deleted the typewritten text of paragraph 5.g by striking through the text with a pen and placing their initials next to it. That paragraph stated:
“I agree that at Sentencing, the State and the Defendant will recommend to the Court that it impose the standard number within the appropriate grid box with full criminal history score of ‘F’ consecutive to the standard number of the grid box under criminal history score of ‘I.’ “
However, the parties did not strike through Paragraph 5.b, which stated:
“In exchange for my pleas as set forth above, it has been agreed as to sentencing that the State and Defendant will recommend that the Court impose the standard number of months in the appropriate grid boxes under Kansas Sentencing Guidelines for convictions of two counts of Aggravated Indecent Liberties with a Child under 16, that these offenses are Severity level 3 Person felonies and that they occurred between October 1 and December 31, 2005.”
This handwritten attempt to delete the provision requiring both parties to recommend the standard grid sentence while simultaneously preserving another nearly identical provision creates conflicting terms in the only written copy of the agreement. Thus, the plea agreement is reasonably open to more than one meaning. This ambiguous point is certainly material, because the length of the sentence recommended by the prosecution is one of the main inducements and a key consideration the defendant receives in exchange for giving up his or her rights under a plea agreement.
Because the provision is ambiguous and material, contract law requires the court to consider other circumstances, including parol evidence, to determine whether the parties intended to include this material term at all. The court must determine the intent of the parties by considering the four corners of the written instrument, along with evidence supporting the intent of the written instrument. See T.R. Inc. of Ashland v. Brandon, 32 Kan.App.2d 649, 654, 87 P.3d 331 (2004).
In this case, the only other evidence supporting the intent of the parties comes from their own statements at the plea and sentencing hearings. At least in the context of collateral proceedings on a plea agreement breach, the United States Supreme Court has noted that the representation of the defendant, his or her lawyer, and the prosecutor at a plea hearing, as well as any findings made by the judge accepting the plea, “carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). In addition to the plain language of a written plea agreement, this court has recently examined parties' actions at the plea and sentencing hearings to determine what terms the parties agreed to. State v. Santor, No. 100,219, 2009 WL 863245, at *2–3 (Kan.App.2009) (unpublished opinion) (holding defendant's argument that State agreed not to recommend restitution as part of plea agreement was not persuasive where plea agreement was silent regarding restitution, State did not indicate at plea hearing that it would not seek restitution, and defendant did not object at sentencing when State recommended restitution).
Here, the evidence of what the parties stated at the plea and sentencing hearings clearly supports a conclusion that they intended to delete all references to the standard KSGA sentence each party would recommend so that each party could argue for any KSGA sentence. Any ambiguity in the written plea agreement was resolved by defense counsel's own statements to the district court. At the plea hearing, Magallanez' counsel spoke first and told the court, “I believe the county attorney has said that Mr. Magallanez can argue for whatever sentence he would like to argue for, but the state was going to argue for the sentence that [it] believed would be appropriate within the grid box.” In announcing the nature of the plea agreement for the record, Magallanez' counsel stated that “Mr. Magallanez will be permitted to argue the appropriate sentence that he does at the time of sentencing. The county attorney, of course, will be free to argue consecutive and whatever terms the county attorney feels is appropriate.” When the court asked if the agreement announced by his attorney was his agreement, Magallanez said, “Yes, Your Honor.” Consequently, at the sentencing hearing, the State argued for the “aggravated sentence,” and Magallanez' attorney then argued for the “mitigated number in the box.” Magallanez never objected to the State's recommended sentence.
Although ambiguous plea agreements are normally strictly construed in favor of the defendant, Magallanez' own counsel's statements at the time he entered his plea before the district court established that he understood that both his counsel and the county attorney would be free to argue for any KSGA sentence at the sentencing hearing. In addition, the State's actions at the plea and sentencing hearings—as well as Magallanez' failure to object to those actions—lead us to conclude that the parties agreed they each would be free to argue for any KSGA sentence within the presumptive box. Finding no agreement between the parties to recommend the standard sentence, the court cannot say the State breached the plea agreement by recommending Magallanez receive the aggravated sentence. B. Regardless of Whether it Contains Ambiguous Language, a Written Contract May Be Reformed So That the True Agreement Between the Parties is Given Effect Over the Written Words
In his brief, Magallanez appears to argue that the fact the parties did not delete the typed language in paragraph 5.b necessarily means that the written plea agreement must be enforced based on the plain and unambiguous language contained in that paragraph—regardless of whether it accurately reflected the parties' actual intentions. But such an argument ignores the cardinal rule of contract interpretation: to ascertain the intention of the parties and give effect to that intention. Krigel, 277 Kan. at 34. In this case, general contract principles requiring courts to enforce plain and unambiguous contract terms are not applicable to the facts presented. That is because the issue here is whether the written words, in the first instance, embody the actual agreement negotiated by the parties. This issue has nothing to do with the clarity or ambiguity of the words or the sentences and paragraphs they construct. If the language does not accurately reflect the agreement made by the parties, the issue of ambiguity is irrelevant. Only if the language accurately reflects the agreement do we attempt to ascertain its meaning. Thoroughbred Assocs. v. Kansas City Royalty Co., 45 Kan.App.2d 312, 323, 248 P.3d 758 (2011), rev. granted December 19, 2011.
To that end, a court may reform a written contract so that the true agreement between the parties is given effect over the incorrect words on paper. Conner v. Koch Oil Co., 245 Kan. 250, 254, 777 P.2d 821 (1989) (recognizing and applying equitable remedy of reformation when a contract or other document fails to set forth accurately the intentions of the parties); Schlatter v. Ibarra, 218 Kan. 67, 70, 542 P.2d 710 (1975) ( “[E]arly in [its] history,” Kansas embraced the equitable principle that a document intended to memorialize an agreement “could be reformed to conform to the original intention of all parties to the instrument, where a mutual mistake was made” in setting forth the provisions of that agreement in writing.); In re Marriage of Jones, 22 Kan.App.2d 753, 762, 921 P.2d 839 (“Kansas has recognized the equitable remedy of reformation to reform written instruments.”), rev. denied 260 Kan. 993 (1996).
As we concluded in the previous section, the evidence in the record here clearly supports a conclusion that the parties intended to free themselves from any requirement to recommend the standard KSGA sentence in order to preserve their ability to recommend any KSGA sentence. Magallanez has offered no sound reason why we should not reform the agreement to supplant the true understanding of the parties in place of the inaccurate paragraph in the plea agreement.
In sum, we find the parties did not agree to recommend the standard sentences in the appropriate grid boxes and thus the State did not breach the plea agreement by recommending Magallanez receive the aggravated sentence.
Affirmed.