Appeal from Superior Court of King County. Docket No: 93-1-07220-8. Date filed: 08/15/94. Judge signing: Hon. Carmen Otero.
Per Curiam. Steven Eckman pleaded guilty to one count of first degree murder and one count of attempted first degree murder. After determining that the deputy prosecutor breached the terms of the plea agreement during sentencing, the trial court ordered all sentencing records sealed and directed that Eckman be resentenced before a different Judge. On appeal, Eckman argues that the trial court erred by not permitting him to withdraw his guilty plea.
Although the record indicates that there may be compelling reasons to deny Eckman his choice of remedy following the State's breach of the plea agreement, we cannot determine whether the trial court applied the correct standard in reaching its decision. Accordingly, we remand for further proceedings and the entry of findings of fact and Conclusions of law.
Eckman was charged by amended information with one count of first degree murder, two counts of first degree robbery, and one count of attempted first degree murder. The State alleged that Eckman had beaten Tom Horn to death and attempted to kill Joelee Horn, Tom's wife, by slitting her throat. Eckman's girlfriend, Kimberly Talley, was charged as a co-defendant. The crimes occurred when the Horns allowed Eckman and Talley, who were homeless, to spend the night in their apartment.
On March 14, 1994, the day on which trial was to begin, Eckman and Talley accepted plea offers from the State. Eckman entered an Alford plea to one count of first degree murder and one count of attempted first degree murder. Under the terms of the agreement, the State agreed to dismiss the remaining charges against Eckman and recommend consecutive, low-end standard-range sentences, for a total of 420 months of confinement. The State also agreed to reduce the charges against Talley to one count of attempted first degree murder. The State's offer was conditioned on both defendants entering guilty pleas, and the reduction in charges against Talley was a primary factor in Eckman's acceptance of the plea agreement. The trial court accepted Eckman's plea on March 15, 1994.
At sentencing on June 2, 1994, counsel for Eckman objected to some of the deputy prosecutor's remarks on the basis that they were inconsistent with the State's agreement to recommend a low-end standard-range sentence. The court found that Eckman's role and the nature of the offense were too serious to merit a low-end sentence and imposed consecutive, high-end standard-range sentences totaling 560 months. The court observed that it was disregarding the prosecutor's remarks to the extent they might be inconsistent with the terms of the plea agreement.
On June 9, 1994, Eckman moved to withdraw his guilty plea, arguing that the deputy prosecutor had breached the plea agreement by failing to make a good faith recommendation for a low-end standard-range sentence. On July 22, 1994, the trial court found that the prosecutor's remarks during sentencing "can only be considered highly inconsistent with a low end recommendation" and that they "impermissibly undercut the terms of the plea agreement." The court concluded that Eckman was therefore entitled to some relief, even though the State's breach was not necessarily intentional. The court rejected Eckman's request to withdraw his guilty plea, ruling that any damage resulting from the prosecutor's remarks could be undone and Eckman provided the full benefit of his bargain by resentencing before another Judge. The court then vacated the sentence, ordered all sentencing materials to be sealed, and directed that a new sentencing be held before a different Judge in accordance with the terms of the plea agreement.
On August 12, 1994, a new sentencing hearing was held before a different Judge. Eckman was again sentenced to consecutive terms totaling 560 months, *fn1 in accord with the recommendation contained in the Department of Corrections' presentence report.
The sole issue on appeal is whether the trial court erred by ordering specific performance of the plea agreement rather than permitting withdrawal of the guilty plea after determining that the deputy prosecutor had breached the plea agreement.
In Washington, the defendant has the option of choosing either specific enforcement or withdrawal of the guilty plea when the State breaches a plea agreement. State v. Miller, 110 Wash. 2d 528, 756 P.2d 122 (1988) (where State failed to show prejudice, defendant entitled to withdraw guilty plea to murder when both parties were mistaken about relevant mandatory sentence); accord State v. Schaupp, 111 Wash. 2d 34, 757 P.2d 970 (1988) (defendant entitled to specific enforcement of plea agreement where State misrepresented reason for plea at plea hearing). The defendant's choice of remedy controls, "unless there are compelling reasons not to allow that remedy." Miller, 110 Wash. 2d at 535.
court ought to accord a defendant's preference considerable, if not controlling, weight inasmuch as the fundamental rights flouted by a prosecutor's breach of a plea bargain are those of the defendant, not of the State. Miller, 110 Wash. 2d at 534 (quoting Santobello v. United States, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971)); see also State v. Thomas, 79 Wash. App. 32, 899 P.2d 1312 (1995) (when defendant breached plea agreement by refusing to testify, State had option of rescinding or enforcing agreement).
In this case, the trial court found that the deputy prosecutor's remarks at sentencing were inconsistent with the State's agreement to recommend a low-end standard-range sentence and constituted a breach of the agreement. Under Miller and subsequent decisions, Eckman was entitled to his choice of remedy absent compelling circumstances to the contrary.
The State maintains that Eckman was not entitled to withdraw his guilty plea in any event because the State's presentation at sentencing did not constitute a breach of the plea agreement. Eckman argues that the State cannot challenge the trial court's finding of breach because it did not file a cross appeal from the trial court's ruling and has moved to strike this portion of the State's brief.
This court will grant a respondent affirmative relief by modifying the decision under review only if the respondent files a timely notice of cross-appeal or "if demanded by the necessities of the case." RAP 2.4(a). The State asserts that the necessities of this case require review of the trial court's finding because it is "the central question presented in this appeal." This conclusory argument provides no basis for this court to depart from the general procedural requirement of a timely notice of cross appeal. See Jacques v. Sharp, 83 Wash. App. 532, 922 P.2d 145 (1996). Under the circumstances of this case, the issue of the proper remedy for a breach, the issue raised by Eckman, does not compel review of the trial court's finding that a breach occurred. The motion to strike is therefore granted.
In any event, the record amply supports the finding that the deputy prosecutor's argument at sentencing breached the plea agreement. As the trial court noted in its oral ruling, the deputy prosecutor began her presentation at the sentencing hearing by introducing several of the victims' friends and family members and commenting that the defendants' actions have "devastated" the family of Tom Horn and that "words cannot begin to describe how ...