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
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.
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
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.
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.
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 May 3, 2016) (unpublished),
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.
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.
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
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.
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.