Appeal from Superior Court of King County. Docket No: 92-1-02798-1. Date filed: 05/08/96. Judge signing: Hon. William L. Downing.
Per Curiam. Lonnie Burton appeals from the order amending his judgment and sentence to reflect lower offender scores. He argues the trial court erred in denying his motion to withdraw his guilty plea after the prosecutor violated the terms of the plea agreement during the resentencing hearing. Burton's personal restraint petition, which raises identical issues, has been consolidated with his appeal.
Under the circumstances, the prosecutor's comments at the resentencing hearing did not constitute a breach of the plea agreement or rise to the level of a manifest inJustice that would permit Burton to withdraw his guilty plea. Accordingly, we affirm the order amending the judgment and sentence and deny the personal restraint petition.
In October 1992, Lonnie Burton pleaded guilty to second degree rape of a child (count I), second degree child molestation (count II), and sexual exploitation of a minor (count IV). Under the terms of the plea agreement, the State dropped 5 additional charges and recommended standard-range sentences for all 3 counts, including 90 months for count II.
On November 20, 1992, the court imposed the following concurrent standard-range sentences: 89 months (count I), 102 months (count II), and 102 months (count IV). The sentences on counts I and IV were at the top end of the standard range; the sentence on count II was at the mid-point. Burton's offender scores were based in part on a prior conviction in Snohomish County for third degree child rape.
Burton's sentence was affirmed on appeal. State v. Burton, No. 31847-1-I (June 20, 1994). He then moved to withdraw his guilty plea, arguing that it was not voluntary. On May 8, 1995, the trial court denied that motion.
On April 25, 1995, Burton's Snohomish County conviction for third degree child rape was reversed and remanded for a new trial. State v. Burton, No. 31432-7-I. On September 7, 1995, Burton moved for resentencing, arguing that the judgment and sentence should be amended to reflect the lower offender scores resulting from the reversal of his Snohomish County conviction. Based on the recalculated offender scores, the standard ranges for Counts I and IV were reduced. The standard range for Count II remained the same (87-116 months) because the offender score was reduced from 12 to 9. Counsel for Burton asked the court to impose lower sentences on counts I and IV, but the same sentence on count II (102 months).
In a written resentencing recommendation filed on January 2, 1996, the State noted that it was bound by the plea agreement and recommended lower sentences on counts I and IV to reflect the recalculated standard ranges. The State's recommendation for count II remained the same (90 months).
The State also alerted the court to what it termed a "potential fraud." Defense counsel had submitted a supplemental sentencing memorandum asserting that Burton's 2 Indiana theft convictions had been reduced to misdemeanors, a fact that would have lowered the offender scores even more. Defense counsel's memorandum was apparently based on Burton's declaration and 2 attached exhibits purporting to show that Burton's motion to reduce the Indiana convictions to misdemeanors had been granted. The deputy prosecutor submitted evidence that Burton's motion had in fact been denied and that the exhibits purporting to show otherwise had been altered. Two days later, defense counsel withdrew as Burton's attorney, informing the court that he now believed Burton's Indiana convictions had not been reduced.
Resentencing occurred on May 8, 1996. Burton, who was represented by new counsel, participated in the hearing by telephone. At the beginning of the hearing, the deputy prosecutor summarized the case at the court's request, stating that "we've prepared a modified Judgment and Sentence to reflect the newer, lower standard ranges, and it's my understanding that the total term of confinement of 102 months remains in effect." The trial court responded that the prosecutor's understanding was correct as to count II, "as the midpoint of what remains the standard range of 87 to 116." The court then stated that "it does remain the court's intention to reimpose the same sentence as previously on that count."
At this point, Burton asked the deputy prosecutor what his recommendation was, and the deputy prosecutor replied, "my recommendation is 102." Burton then moved to withdraw his guilty plea, arguing that the State had violated the terms of the plea agreement by changing its recommendation from 90 months to 102 months. The trial court denied the motion, noting that it was simply retaining the previously imposed sentence and that the court's decision bore no relation to the State's "recommendation." The court also indicated, in an apparent reference to the incident involving Burton's Indiana convictions, that the circumstances occurring after the guilty plea might serve to release the State from its obligations under the plea agreement.
The deputy prosecutor explained that the proposed order had been worked out with Burton's prior attorney and that his comment in response to Burton's question merely reflected his awareness that the court intended to impose a sentence of 102 months on count II.
On appeal, Burton argues that the deputy prosecutor breached the terms of the plea agreement when he "recommended" a sentence of 102 months at the resentencing hearing rather than 90 months. Burton maintains that he is therefore entitled to withdraw his guilty plea on all 3 counts.
Under CrR 4.2(f), the court must permit the defendant to withdraw a guilty plea whenever it appears that withdrawal is necessary "to correct a manifest inJustice." A "manifest inJustice" is "an inJustice that is obvious, directly observable, overt, not obscure." State v. Saas, 118 Wash. 2d 37, 42, 820 P.2d 505 (1991) (quoting State v. Taylor, 83 Wash. 2d 594, 596, 521 P.2d 699 (1974)). Examples of a manifest inJustice include denial of effective counsel, a plea not ratified by the defendant, an involuntary plea, and the prosecutor's failure to adhere to the plea agreement. Taylor, 83 Wash. 2d at 597.
Due process requires the prosecutor to adhere to the terms of a plea agreement. State v. Coppin, 57 Wash. App. 866, 871, 791 P.2d 228, review denied, 115 Wash. 2d 1011, 797 P.2d 512 (1990). A prosecutor breaches the plea agreement by recommending a longer sentence or by otherwise failing to act as agreed. In re James, 96 Wash. 2d 847, 640 P.2d 18 (1982). A defendant may be entitled to relief even if the breach was inadvertent. State v. Collins, 46 Wash. App. 636, 639, 731 P.2d 1157, review denied, 108 Wash. 2d 1026 (1987); Santobello v. United States, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971) (new prosecutor inadvertently breached plea agreement by recommending longer sentence). When the prosecution has breached a plea agreement, the defendant is generally ...