Opinion
No. 107,328.
2012-11-16
STATE of Kansas, Appellee, v. Harold Dean SPENCER, Appellant.
Appeal from Shawnee District Court; Mark S. Braun, Judge. Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Mark S. Braun, Judge.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., McANANY and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
As part of a plea agreement, Harold Dean Spencer pled guilty to two counts of aggravated indecent liberties with a child under 14 and the State agreed to remain silent at sentencing. The State did remain silent at sentencing, but when Spencer was granted both a departure from his Jessica's Law, K.S.A. 21–4643, sentence and a dispositional departure to probation, the State appealed the sentence. The Kansas Supreme Court vacated the sentence, finding that there were not substantial and compelling reasons to support either departure. State v. Spencer, 291 Kan. 796, 829, 248 P.3d 256 (2011). On remand, Spencer moved to withdraw his pleas alleging that the State violated the plea agreement by challenging his sentence on appeal. Because we find that the State did not violate the plea agreement, we affirm the district court's denial of Spencer's motion to withdraw his pleas.
Factual and Procedural History
Spencer pled guilty to two counts of aggravated indecent liberties with a child under 14 in violation of K.S.A. 21–3504. The victims included Spencer's 6–year–old great-granddaughter and a granddaughter of similar age. Both convictions were subject to Jessica's Law and carried presumptive sentences of life in prison with 25–year mandatory minimums. In exchange for Spencer's plea, the sentencing portion of the plea agreement stated: “The State will stand silent at sentencing. There are no other agreements regarding sentencing recommendations.”
Prior to sentencing, Spencer filed a motion for “a dispositional departure, or in the alternative a durational departure to 55 months .” He alleged two mitigating factors justifying departure, his lack of any criminal history and his advanced age. As promised, the State remained silent at sentencing, and the district court granted Spencer both a departure from his Jessica's Law sentences and a dispositional departure. The district court sentenced Spencer to departure sentences of 36 months' probation, with underlying sentences of 155 months on each count to be served concurrently.
The State appealed the departure sentences directly to the Kansas Supreme Court. The Supreme Court reversed, holding that the district court abused its discretion because there were not substantial and compelling reasons to support either departure. The court vacated Spencer's sentences and remanded for resentencing. Spencer, 291 Kan. at 829.
Prior to resentencing, Spencer filed a motion to withdraw his pleas. Spencer argued that the State violated its plea agreement to “stand silent at sentencing” when it filed a notice of appeal challenging his departure sentences. At his resentencing, a different district court judge denied Spencer's motion. The district court sentenced Spencer to life terms on each of the two counts, with the sentences to run concurrent with each other. Spencer timely appeals.
Additional facts will be included in the analysis where necessary.
Analysis
Spencer argues the district court erred in denying his motion to withdraw his pleas where the State breached its plea agreement. Specifically, Spencer maintains that the State's agreement to “stand silent at sentencing” not only meant that the State would not oppose his motion for downward or, in the alternative, dispositional departures at the sentencing hearing, but it also precluded the State from appealing his departure sentences. Standard of Review
On appeal, this court will not disturb a district court's denial of a motion to withdraw a plea, either before or after sentencing, unless the defendant establishes an abuse of discretion. State v. Bricker, 292 Kan. 239, 244, 252 P.3d 118 (2011); State v. White, 289 Kan. 279, 284–85, 211 P.3d 805 (2009). But here, Spencer's underlying complaint is that the State breached the plea agreement. Because a criminal defendant's due process rights are implicated when the State breaches a plea agreement, this court exercises unlimited review of such claims. State v. Chesbro, 35 Kan.App.2d 662, 673, 134 P.3d 1,rev. denied 282 Kan. 792 (2006). The State did not violate the plea agreement.
A fundamental expectation in every plea agreement is that each party will honor the terms of that agreement. Santobello v. New York, 404 U.S. 257, 260–62, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); State v. Boley, 279 Kan. 989, 992, 113 P.3d 248 (2005). In Boley, the Kansas Supreme Court noted that application of fundamental contract principles is generally the best means to fair enforcement of the parties' agreed upon obligations provided courts remain mindful that in some circumstances the constitutional implications of the plea bargaining process may require a different analysis. 279 Kan. at 992–93.
Spencer argues that two general rules in the construction of contracts apply here. First, “ ‘[t]he terms of a contract should be construed to give effect to the intention of the parties when they entered into the contract, and this must be determined from the four corners of the contract itself.’ “ Second, “ ‘a contract must be interpreted in light of its provisions, and every provision must be construed, if possible, to be consistent with every other provision and to give effect to all.’ “ See Daggett v. Board of Public Utilities, 46 Kan.App.2d 513, 516, 263 P.3d 847 (2011), rev. denied 294 Kan. –––– (May 21, 2012).
The plea agreement provides that “in the event of any probation violations, the State reserves the right to make an independent recommendation regarding disposition,” Spencer points to this language as evidence of the parties' intent that the State's agreement to remain silent at sentencing extended beyond the sentencing hearing. Spencer reasons that the parties would not have needed to include this clause had the parties just intended for the State to stand silent at the sentencing hearing because it would have no effect. In other words, Spencer asks this court to infer from a review of the entire agreement that the “stand silent at sentencing” language under the agreement meant the State intended to waive its statutory right to appeal his sentence when it entered into the plea agreement. See K.S.A. 21–4721(a) (the State may appeal a departure sentence). The State argues that had the parties intended the State to waive its right to appeal Spencer's sentence, the agreement would have provided for such a condition. We agree.
We find State v. Copes, 290 Kan. 209, 213–18, 224 P.3d 571 (2010), particularly helpful to our analysis in this case. In Copes, the State argued that the defendant, in her written plea agreement, had effectively contracted away her statutory rights under K.S.A. 22–4513(b) regarding the district court's assessment of the Board of Indigents' Defense Services (BIDS) attorney fees. Although the Supreme Court acknowledged that the defendant's plea agreement had contained an explicit waiver of an extensive recitation of rights, the court found that it did not specifically contain an agreement to waive her rights granted under K.S.A. 22–4513(b). 290 Kan. at 217. In reaching its conclusion the court cited with approval to State v. Thompson, 15 Neb.App. 764, 773, 735 N.W.2d 818 (2007), a case with facts nearly identical to those here. The court specifically cited Thompson for the proposition that “as with other contracts, courts cannot rewrite plea agreement to include terms not present.” Copes, 290 Kan. at 217. A closer look at Thompson is warranted.
In Thompson, the defendant pled no contest to two counts of sexual assault of a child in exchange for the State dismissing a charge of first-degree sexual assault. The plea agreement provided that the State would remain silent at sentencing. As agreed, the State made no arguments or recommendations at sentencing. The trial court sentenced the defendant to 5 years' probation on each count, to run consecutively. The State exercised its statutory right to appeal the defendant's sentence as being “excessively lenient.” 15 Neb.App. at 768–69. The defendant argued that because the State agreed to remain silent at sentencing it had also waived its right to appeal the sentence.
The Nebraska Court of Appeals held that the State's agreement to remain silent at sentencing did not waive its statutory right to appeal the trial court's sentences. Thompson, 15 Neb.App. at 776. In doing so, the Thompson panel ruled: “The State's waiver of its right of appellate review must actually be part of the agreement rather than judicially created from a plea agreement that fails to even mention such a condition.” 15 Neb.App. at 776; see also Brown v. Nebraska, No. 8:10CV236, 2011 WL 3861346, at *5 (D . Neb.2011) (unpublished opinion) (finding that even had the plea agreement provided for the State to remain silent at sentencing, that agreement, under federal law and Nebraska law, did not specifically waive the State's statutory right to appeal the defendant's sentence as excessively lenient).
To return to our case, given Copes acknowledgment of the Thompson holding, it is clear that in the context of plea agreements we cannot “imply as a matter of law a term which the parties themselves did not agree upon.” United States v. Benchimol, 471 U.S. 453, 455–56, 105 S.Ct. 2103, 85 L.Ed.2d 462 (1985) (finding that the government did not violate its plea agreement where it made the agreed-upon sentencing recommendation and failed to make the recommendation “ ‘enthusiastically’ ”).
Here, the plea agreement was not ambiguous or reasonably susceptible to different interpretations. See State v. Wills, 244 Kan. 62, Syl. ¶¶ 1, 2, 765 P.2d 1114 (1988) (an ambiguous plea agreement reasonably susceptible to different interpretations must be strictly construed in favor of the defendant). The plea agreement did include an explicit waiver of Spencer's right to appeal his sentences and only permitted an appeal challenging either the court's jurisdiction or whether his sentences exceeded that permitted by law. See K.S.A. 60–1507. As the State argued, Spencer could have similarly protected against the risk that it would exercise its right to appeal a departure sentence “by including a provision in the plea agreement requiring the State to waive its right to appeal or indicating that if the State successfully challenged his sentence, it would be considered a breach of the plea agreement.” Of note, the district court at Spencer's initial sentencing informed both parties after granting Spencer's departure motion that they had the right to appeal within 10 days. See K.S.A. 22–3608(c).
Spencer does not allege that the State violated the agreement by failing to remain silent at the time of sentencing. Moreover, the record does not contain any indication that the State's right to appeal was discussed as part of any plea negotiations, and the plea and sentencing hearing transcripts do not show that the State waived its statutory right to appeal. In light of the law and the facts, we find that the State fulfilled its part of the bargain to remain silent at sentencing. See United States v. Fentress, 792 F.2d 461, 464 (4th Cir.1986) (“While the government must be held to the promises it made [in a plea agreement], it will not be bound to those it did not make.”). While the State must clearly honor its plea agreements, we are not at liberty to imply as a matter of law essential terms to which the parties did not agree. Benchimol, 471 U.S. at 456;Copes, 290 Kan. at 217.
The sole basis that Spencer seeks to withdraw his pleas is his contention that the State violated the plea agreement. Because we find that the State did not violate the plea agreement, we fmd that the district court did not abuse its discretion in denying Spencer's motion to withdraw his pleas.
Affirmed.