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State v. Gleim

Court of Appeals of Washington, Division 3

August 1, 2017

STATE OF WASHINGTON, Respondent,
v.
LONNIE DEAN GLEIM, JR., Appellant.

          PENNELL, J.

         A prosecutor's duty to abide by the terms of a plea agreement applies both at an original sentencing hearing as well as at resentencing after remand. What is unclear under our case law is the scope of a prosecutor's duty when a remand order permits the trial court to choose between full resentencing and a more limited remedy. In such circumstances, must a prosecutor advocate for full resentencing if doing so is the only way the trial court might issue a judgment consistent with the terms of the plea agreement?

         Our answer is no. Until the trial court makes clear that it has opted for full resentencing, a prosecutor's duties are akin to those on an appeal. The prosecutor may advocate for finality and oppose full resentencing, even if it means the sentence sustained against the defendant differs from the disposition recommended in the parties' plea agreement.

         Applying this principle to the present case, we reject Lonnie Dean Gleim Jr.'s claim that the prosecutor violated the terms of Mr. Gleim's plea agreement on remand by not advocating for full resentencing. We also disagree with Mr. Gleim's other assignment of error pertaining to the imposition of legal financial obligations (LFOs). The matter is therefore affirmed.

         BACKGROUND

         Mr. Gleim pleaded guilty to four counts of first degree possession of depictions of a minor engaged in sexually explicit conduct. Pursuant to a plea agreement, the parties agreed to a joint recommendation of 36 months' confinement. This recommendation was substantially lower than the standard range of 77 to 102 months.

         At the original sentencing hearing in 2015, the State and Mr. Gleim both requested an exceptional sentence downward of 36 months' confinement followed by 36 months' community custody. It is undisputed that the prosecutor abided by his duties under the plea agreement at this hearing. However, the trial court opted for a high-end sentence of 102 months on each count, all to run concurrently, plus 36 months of community custody. The court also imposed a series of discretionary and mandatory LFOs. Pertinent to this appeal, the court imposed $200 in unspecified "Court costs." Clerk's Papers (CP) at 28.

         Mr. Gleim appealed. During his first appeal, Mr. Gleim successfully argued the total sentence imposed by the court exceeded the statutory maximum and discretionary LFOs were imposed without an adequate inquiry into ability to pay. State v. Gleim, No. 33209-8-III, slip op. at 1-2 (Wash.Ct.App. May 3, 2016) (unpublished), http://www.courts.wa.gov/opinions/pdf/332098.unp.pdf. We remanded Mr. Gleim's case "to the trial court to either amend the community custody term or to resentence Mr. Gleim consistent with [RCW 9.94A.701(9)]" and to conduct a proper LFO inquiry. Id. at 6-7, 11.

         Mr. Gleim's case returned to the trial court for proceedings before the original sentencing judge. On remand, the prosecutor initially informed the court the general purpose of the hearing was to amend Mr. Gleim's term of community custody and to conduct an individualized inquiry into LFOs. The defense objected, claiming the purpose was to conduct a full resentencing. After a continuance, the prosecutor revised his statement, explaining the purpose was either to amend the previous judgment or to issue a new judgment and sentence "that goes through everything." 1 Verbatim Report of Proceedings (VRP) (June 27, 2016) at 4. Defense counsel then continued to argue for a full resentencing and advocated at length for the joint recommendation contained in the plea agreement. At the close of defense counsel's comments, the court asked if the prosecutor had anything to add. He stated he did not.

         Immediately after the prosecutor declined further comment, defense counsel made an oral motion to withdraw Mr. Gleim's guilty plea. The defense claimed the State had violated its plea agreement obligation to recommend a 36-month term of incarceration. The prosecutor responded the State had never changed its recommendation and the State reiterated the same recommendation. The court noted it had the parties' recommendation. The motion to withdraw the plea was then denied. After the court's oral ruling, defense counsel complained the prosecutor never articulated any reasons in support of its 36-month recommendation. The court stood by its ruling.

         After disposing of Mr. Gleim's motion to withdraw his plea, the court resentenced Mr. Gleim to 102 months concurrent on all four counts and 18 months community custody. This was the first time during the proceedings that the court clarified it would be resentencing Mr. Gleim, as opposed to merely amending the term of community custody. As part of the resentencing, the court also imposed $800 in LFOs, noting it was "taking off those that are voluntary fines." 1 VRP (June 27, 2016) at 12. The $800 imposed by the court includes a $500 victim assessment fee, a $100 DNA (deoxyribonucleic acid) collection fee, and a $200 clerk's filing fee.

         Mr. Gleim appeals the sentence imposed on remand, arguing the State breached the plea agreement and the court failed to recognize and strike a discretionary LFO.

         ANALYSIS

         Breach of ...


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