criminal defendant faced with allegations of violating the
terms of a plea agreement is entitled to an evidentiary
hearing. This evidentiary hearing right is rooted in the
constitutional right to due process. As such, it cannot be
waived by silent acquiescence. Instead, the State has a heavy
burden of proving a defendant has intelligently, knowingly,
and voluntarily waived the right to a hearing.
trial court found Caleb Townsend in violation of his plea
agreement without first holding an evidentiary hearing.
Although Mr. Townsend did not affirmatively request an
evidentiary hearing, he also did not say or do anything to
suggest he agreed with the court's summary procedure. To
the contrary, Mr. Townsend protested his innocence. Under the
circumstances presented in this case, the State has not
proved Mr. Townsend waived his hearing rights. Mr.
Townsend's judgment and sentence is therefore reversed,
and this matter is remanded for an evidentiary hearing.
Townsend pleaded guilty to two felony charges pursuant to a
plea agreement. The agreement held considerable value for Mr.
Townsend, as the prosecutor agreed to recommend a sentence
well below the standard range. For his part, Mr. Townsend
agreed to abide by all release conditions, including a
requirement that he "[c]ommit no law violations"
while awaiting sentencing. Clerk's Papers at 29. The
agreement specified that if Mr. Townsend failed to live up to
his side of the bargain, the parties would jointly recommend
a sentence of 61 months' incarceration, the high end of
the standard range.
to his plea, Mr. Townsend was arrested on new felony
allegations. According to a probable cause affidavit, Mr.
Townsend admitted to at least some law violations during a
post-arrest police interview. A warrant was then
issued for Mr. Townsend's violation of his release terms.
Townsend's case proceeded to sentencing. The prosecutor
began his remarks by stating Mr. Townsend had breached the
parties' plea agreement and, as a result, the State
recommended 61 months' imprisonment. In response to
defense counsel's argument that proof of Mr.
Townsend's breach could only be sustained through
evidence of a conviction, the prosecutor claimed the court
could go forward on the existing record. The prosecutor had
earlier argued the court only needed to find a law violation
by a preponderance of the evidence and that this
determination had already been made when the court issued a
warrant for Mr. Townsend's release
court ruled that because the probable cause affidavit stated
Mr. Townsend had admitted to some law violations, there was
adequate proof Mr. Townsend had breached the plea agreement.
Prior to making this ruling, the court did not hear from any
witnesses. No evidence was entered into the record. And Mr.
Townsend was not invited to present evidence or testimony in
court then continued to sentencing. Both parties made
sentencing recommendations and, at the conclusion of
counsels' comments, Mr. Townsend was invited to speak.
Mr. Townsend described his work in the community and stated:
I'm not-I'm not guilty of these crimes, Your Honor,
and I know I can-I can-that's what they're claiming,
and I know it's not-it's not proof in any way to
state that, but I wanted to say my piece and say that I'm
not- I'm not a hardened criminal. I'm not-I don't
know. I don't feel that I deserve the 61 months, Your
Honor, and I don't feel I'm guilty of these crimes.
I'd like to state that I did hire private counsel for
those other charges to be dealt with. I think that's it,
Your Honor. Thank you.
Report of Proceedings (Dec. 21, 2016) at 28.
trial court responded that it was "impressed" with
Mr. Townsend's demeanor and that "[h]e's
certainly entitled to his opinion on whether or not
there's sufficient proof here. Nonetheless, the court has
made the ruling on the plea agreement, and in fact there has
been a breach of that." Id. No further inquiry
was made. Mr. Townsend appeals.
agreement is a contract with constitutional implications.
In re Pers. Restraint of Lord, 152 Wn.2d 182,
188-89, 94 P.3d 952 (2004). If a defendant breaches a plea
agreement, the State may rescind it. State v.
Thomas, 79 Wn.App. 32, 36-37, 899 P.2d 1312 (1995).
However, before doing so the State must prove breach by a
preponderance of the evidence. In re Pers. Restraint of
James, 96 Wn.2d 847, 850-51, 640 P.2d 18 (1982);
State v. Roberson, 118 Wn.App. 151, 158-59, 74 P.3d
1208 (2003), overruled in part on other grounds by State
v. Hughes, 154 Wn.2d 118, 110 P.3d 192 (2005). Due
process requires the State's proof be presented during an
evidentiary hearing, at which the defendant must have the
opportunity to call witnesses and contest the State's
allegations. James, 96 Wn.2d at 850-51;
Roberson, 118 Wn.App. at 158-59.
Townsend argues the trial court improperly relieved the
prosecution of its plea agreement obligations without either
holding an evidentiary hearing or obtaining a valid waiver of
his right to a hearing. Our review of these contentions is de
novo. State v. Nelson, 158 Wn.2d 699, 702, 147 P.3d
553 (2006); State v. Vasquez, 109 Wn.App. 310, 319,
34 P.3d 1255 (2001), aff'd, 148 Wn.2d 303, 59
P.3d 648 (2002). As set forth below, we agree with Mr.
court did not conduct an evidentiary hearing
trial court proceedings did not bear any of the hallmarks of
an evidentiary hearing. No evidence was admitted. No
testimony was taken. The State did not even make a record of
the identity of the law enforcement officer who apparently
signed Mr. Townsend's probable cause affidavit. While the
requirements of due process are flexible, Mr. Townsend's
minimal due process right to " 'be heard in person
and to present witnesses and documentary evidence,
'" Gagnon v. Scarpelli, 411 U.S. 778, 786,
93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (quoting Morrissey
v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d
484 (1972), was not recognized prior to the trial court's
no accident that the trial court proceedings failed to
resemble an evidentiary hearing. None was intended. The
prosecution presented its case under the assumption that the
court's arrest warrant determination conclusively
established Mr. Townsend's release violation. This
approach was mistaken. The only type of evidence that can
constitute conclusive proof of violation conduct is a felony
judgment and sentence. See ER 803(22);
Seattle-First Nat'l Bank v. Cannon, 26 Wn.App.
922, 615 P.2d 1316 (1980). If a felony conviction is obtained
by a guilty verdict or unreserved plea, due process does not
require additional proof of a defendant's violation
conduct. See Clark v. Baines, 150 Wn.2d 905, 84 P.3d
245 (2004); United States v. Williams, 741 F.3d 1057
(9th Cir. 2014). However, an arrest warrant is not a felony
conviction. Prior to the issuance of an arrest warrant, a
defendant is not afforded the right to exercise any due
process rights. As such, an arrest warrant is not a
substitute for the due process right to an evidentiary
State has not proved a valid waiver
defendant can waive the due process right to an evidentiary
hearing. But because the hearing right is constitutional,
waiver will not be presumed. James, 96 Wn.2d at 851.
Silent acquiescence is not sufficient proof of waiver, even
when an individual is represented by counsel. Id.; State
v. Stegall, 124 Wn.2d 719, 730, 881 P.2d 979 (1994).
Instead, the "State carries a heavy burden of
demonstrating a voluntary, knowing, and intelligent
waiver." James, 96 Wn.2d at 851.
Townsend never explicitly stated a desire to waive his due
process hearing rights. To the contrary, the subject of an
evidentiary hearing never came up because the court never
offered the opportunity for an evidentiary hearing, as
required by our case law. Id. at 850 (a defendant is
to "be given an opportunity to call witnesses and have
other due process rights"); Roberson, 118
Wn.App. at 158-59 ("the trial court must
conduct an evidentiary hearing, at which the State must prove