Argued October 2, 2014
As amended by order of the Supreme Court April 13, 2015.
Jennifer M. Winkler (of Nielsen Broman & Koch PLLC ), for petitioner.
Daniel T. Satterberg, Prosecuting Attorney, and Amy R. Meckling, Deputy, for respondent.
AUTHOR: Justice Charles K. Wiggins. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Charles W. Johnson, Justice Susan Owens, Justice Mary E. Fairhurst, Justice Sheryl Gordon McCloud. AUTHOR: Justice Mary I. Yu. WE CONCUR: Justice Debra L. Stephens, Justice Steven C. González.
[183 Wn.2d 4] Wiggins,
¶ 1 Ronald Wayne MacDonald entered into a plea agreement for second degree manslaughter with the prosecutor in exchange for recommending a 5-year suspended [183 Wn.2d 5] sentence with 16 months' confinement in King County jail, with credit for time served. At sentencing, the investigating police officer, purportedly speaking on behalf of the victim, advocated for a sentence contrary to the agreement. The trial court gave MacDonald
the maximum sentence, and the Court of Appeals affirmed.
¶ 2 We hold that the investigating officer was functioning as a substantial arm of the prosecution and should not have been permitted to advocate against the plea bargain. Therefore, the State breached the plea agreement by undercutting the agreed sentencing recommendation. We reverse the Court of Appeals and remand with instructions to permit MacDonald to either withdraw his guilty plea or seek specific performance of the plea agreement.
¶ 3 In 1978, Arlene Roberts was found dead in her home. Her trailer had been ransacked, her hands and ankles were bound with stockings, she had a garment tied around her mouth, and a ligature made from a hairnet was around her neck. She was 80 years old. The cause of death was asphyxiation by strangulation, and the case was listed as a homicide. The police collected several latent fingerprints from bank statements and traveler's checks within her trailer but never identified a suspect. The case went inactive.
¶ 4 In 2010, detective Scott Tompkins reviewed the case files and matched the fingerprints to MacDonald, who was living at that time in Reno, Nevada. Tompkins noted that MacDonald had numerous burglary arrests between 1978 and 1980 and that MacDonald had lived near Roberts at the time of her death. Tompkins flew to Nevada to obtain a DNA (deoxyribonucleic acid) sample and fingerprints. He also interviewed MacDonald and prepared him for extradition. Following this interview, the State charged MacDonald with murder in the first degree.
[183 Wn.2d 6] ¶ 5 After the trial began, the parties entered into plea negotiations. MacDonald argued that DNA taken from the crime scene was exculpatory, that there were no fingerprints tying him to the murder, and that the age of the case would create significant problems for the State. The State agreed that the prosecutor would change the charge from first degree felony murder to second degree manslaughter and recommend a five-year suspended sentence in exchange for an Alford  plea. MacDonald accepted the plea agreement.
¶ 6 At sentencing, Deputy Prosecutor Kristin Richardson informed the court that Detective Tompkins wished to speak on behalf of the victim pursuant to RCW 9.94A.500. Though Tompkins had remained involved throughout the plea negotiations and Richardson intended for Tompkins to sit at counsel's table pursuant to ER 615 in order to assist her, Richardson asserted that she did not know what Tompkins wanted to say. MacDonald objected, but the trial court permitted Tompkins to testify as a victim advocate over MacDonald's objection.
¶ 7 Tompkins immediately asked the court to impose the maximum sentence. He asked to present what happened to the victim and provided the court with a series of marked photographs of the victim's body as police found her. Tompkins informed the court that the medical examiner's report contained 18 paragraphs detailing her injuries and then asserted that Roberts " died a horrific death."
¶ 8 Tompkins continued, attacking each of the points raised by MacDonald in favor of the plea agreement. Tompkins argued that the DNA evidence was not exculpatory and related several of MacDonald's unrecorded admissions to the court. He further testified that, because of his [183 Wn.2d 7] 14 years' experience as a robbery-homicide officer, it was his opinion that this was not a sophisticated crime and that " people like [MacDonald] in that age group are the people that kill elderly women." He then implored the court, speaking as a cold case detective, to hold someone accountable for this crime.
¶ 9 The trial court imposed the maximum sentence, giving MacDonald 60 months in prison with a minimum sentence of 55 months and credit for time served. MacDonald informed the court that he was considering
a motion to withdraw the plea based on a violation of the plea agreement.
¶ 10 MacDonald timely moved to withdraw his plea. Because the trial court judge had retired, the motion was transferred to the Court of Appeals. The Court of Appeals denied this motion and affirmed MacDonald's conviction in an unpublished decision. State v. MacDonald, noted at 179 Wn.App. 1006, 2014 WL 231981. We granted review. 180 Wn.2d 1008, 325 P.3d 913 (2014).
¶ 11 We reverse the Court of Appeals and permit MacDonald to elect whether to withdraw his guilty plea or to seek specific performance. We affirm our decision in State v. Sanchez that investigating officers cannot make sentence recommendations contrary to a plea agreement. 146 Wn.2d 339, 46 P.3d 774 (2002).
¶ 12 We also hold that the same due process concerns precluding an investigating officer from undermining a plea agreement bar that officer from making unsolicited remarks on a victim's behalf to the court at sentencing that are contrary to the plea agreement. Washington's crime victims' rights laws do not permit the State to breach a plea agreement.
[183 Wn.2d 8] I. Standard of Review
¶ 13 We review constitutional issues, like questions of law, de novo. State v. Gresham, 173 Wn.2d 405, 419, 269 P.3d 207 (2012). A reviewing court applies an objective standard to determine whether the State breached a plea agreement. State v. Sledge, 133 Wn.2d 828, 843 n.7, 947 P.2d 1199 (1997).
¶ 14 Harmless error review does not apply when the State breaches a plea agreement. State v. Carreno-Maldonado, 135 Wn.App. 77, 87-88, 143 P.3d 343 (2006) (citing In re Pers. Restraint of James, 96 Wn.2d 847, 849-50, 640 P.2d 18 (1982)); accord Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Because the State's conduct in breaching the agreement eliminates the basis of that bargain, the State cannot benefit from the bargain. Carreno-Maldonado, 135 Wn.App. at 88.
II. Plea Agreements
¶ 15 A plea agreement is a contract between the State and the defendant. Sledge, 133 Wn.2d at 838. The State thus has a contractual duty of good faith, requiring that it not undercut the terms of the agreement, either explicitly or implicitly, by conduct evidencing intent to circumvent the terms of the plea agreement. Id. at 840; State v. Jerde, 93 Wn.App. 774, 780, 970 P.2d 781, review denied, 138 Wn.2d 1002, 984 P.2d 1033 (1999). " Fairness is mandated to ensure public confidence in the administration of our justice system." Sledge, 133 Wn.2d at 839.
¶ 16 In addition to contract principles binding the parties to the agreement, constitutional due process " requires a prosecutor to adhere to the terms of the agreement" by recommending the agreed upon sentence. Id. (plea agreements concern fundamental rights of the accused and thus are more than simple common law contracts). By pleading guilty to a crime, defendants waive significant rights. These rights include the right to a jury trial, the [183 Wn.2d 9] right to confront accusers, the right to present witnesses in his defense, the right to remain silent, and the right to have the charges against him proved beyond a reasonable doubt. Santobello, 404 U.S. at 264 (Douglas, J., concurring). However, in exchange for these waivers, the defendant receives the benefits of the bargain. When the State breaches a plea agreement, it " undercuts the basis for the waiver of constitutional rights implicit in the plea." State v. Tourtellotte, 88 Wn.2d 579, 584, 564 P.2d 799 (1977).
III. Investigating Officers
¶ 17 This court has held that an investigating officer (IO) could not undermine the prosecution's plea bargain. Sanchez, 146 Wn.2d at 370 (Madsen, J., dissenting), id. at 358-59 (Chambers, ...