No. 51620-5-I.The Court of Appeals of Washington, Division One.
Filed: November 17, 2003. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 01-1-07368-7. Judgment or order under review. Date filed: 01/03/2003.
Counsel for Appellant(s), Christopher Gibson, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
G Torres — Informational only (Appearing Pro Se), Doc # 845034, Clallam Bay Corr. Center, 1830 Eagle Crest Way, Clallam Bay, WA 98326-9723.
Counsel for Respondent(s), Hugh J. Barber, Attorney at Law, King Cnty Pros Offc, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
KENNEDY, J.
A prosecutor may not undercut the terms of his or her plea agreement with the defendant, either explicitly or by conduct evidencing such an intention. Here, the prosecutor expressly supported the plea agreement at the time of sentencing by recommending a high-end standard range sentence. The court, after reviewing letters and hearing statements from the victim’s family requesting that an exceptional sentence upward be imposed, did impose an exceptional sentence. Torres contends that the prosecutor undercut the terms of the plea agreement by telling the family, who were unhappy with the plea bargain, that they could ask the court to impose an exceptional sentence.
Because the record is ambiguous, we cannot conclude that the prosecutor, as opposed to somebody else, such as a victim’s advocate or another member of the family whose letter indicates that he performed independent legal research, so advised the family. But even if it was the prosecutor who told the family about their right to address the sentencing court and to request an exceptional sentence, this is not conduct evidencing an intention to undercut the plea agreement. Torres does not contest the exceptional sentence on any other ground. Accordingly, we affirm the exceptional sentence. However, because the defendant’s term of community custody was capable of exact determination at the time of sentencing, but not obvious on the face of the documents, we modify the judgment and sentence to reflect that Torres’ term of community custody is 36 to 48 months.
FACTS
On August 21, 2001, a woman’s body was found at a park in King County. An autopsy revealed that 90 stab wounds had been inflicted on the body. Gregory Torres and a co-defendant, Michael Koehler, later pleaded guilty to premeditated first degree murder of the victim. Torres stated that he and Koehler lured the victim to a park on the false promise of exchanging drugs for sex, and there stabbed her, raped her, searched her clothing for money, and then stabbed her to death after she tried to escape. Torres admitted that the murder was committed with sexual motivation, and that he was armed with a deadly weapon at the time of the crime. He also stipulated that the court, in sentencing, could consider the facts set forth in the certification for probable cause and the prosecutor’s summary as real facts.
In return for Torres’ plea, the prosecutor agreed to recommend a high-end standard range sentence. Members of the victim’s family submitted letters and pictures of the victim prior to sentencing. The letters requested that the judge impose `the strongest possible terms’ allowed by law and to make an example of the defendants. One letter, written by the victim’s brother-in-law, criticized the prosecutor for not having charged aggravated first-degree murder and, citing aggravating circumstances of deliberate cruelty, sexual motivation, and the deadly weapon enhancement, requested the court to impose on Torres an exceptional sentence above the standard range. Both Torres and Koehler were sentenced at the same time.
At sentencing, the prosecutor recommended a sentence of 344 months, the high end of a standard range sentence for first degree murder with a deadly weapon enhancement.[1] The prosecutor asserted that the 80-month variance in the standard range of sentencing for first degree murder afforded the court some discretion to consider the manner in which the crime was committed.
The prosecutor pointed out that the facts were egregious; the defendants lured the victim to a secluded park in the middle of the night, stabbed her, raped her, searched her clothing for money, and then murdered her when she tried to escape. The prosecutor emphasized that the defendants said, `I’m going to kill you, bitch,’ and `This is fun. This is so fun,’ as they stabbed the victim, and that the victim had been stabbed 90 times. Numerous family members and friends of the victim also appeared at sentencing. The victim’s sister stated, `When the prosecutors made the plea agreement with the two that murdered my sister, we were told that as a family we could persuade the judge to give an exceptional sentence by writing letters or speaking at sentencing.’ 2 Report of Proceedings at 36. Those who spoke at sentencing all urged the court to give Torres a life sentence or an exceptional sentence.
The victim’s brother-in-law repeated the request in his letter for an exceptional sentence, asserting that the prosecutor’s recommendation was `ludicrous.’ The court ultimately imposed an aggravated exceptional sentence of 404 months, i.e., 380 months for the murder and 24 months for the deadly weapon enhancement. Relying on two aggravating factors, the court found that substantial and compelling reasons justified imposing an exceptional sentence. First, the court found that RCW 9.94A.535(2)(a) justified an exceptional sentence because of the defendants’ `deliberate cruelty and intimidation of the victim.’ The court asserted that the incident `took place over a period of time and distance sufficiently long to inflict extreme fear, pain and suffering on the part of the victim prior to her death . . . {and} the remarks of the defendants during the attack evidence their deliberate and cruel intent to perpetrate gratuitous violence towards their victim.’ Clerk’s Papers at 58.
Second, the court found that an exceptional sentence was justified based on RCW 9.94A.535(2)(f) because the crime was committed with sexual motivation.[2] The court also imposed a term of community custody of 36 to 48 months pursuant to RCW 9.94A.010(36) for sex offenses, `or for the entire period of earned early release awarded under RCW 9.94A.150, whichever is longer.’ Clerk’s Papers at 51. Torres timely appealed. He claims that the prosecutor violated the plea agreement by enlisting the victim’s family to speak at sentencing, and that the community custody terms were insufficiently specific and require remand for re-sentencing.
DISCUSSION I. Plea Agreement
Torres does not claim that the prosecutor’s own comments violated the plea agreement. Rather, he asserts that the prosecutor `enlisted’ relatives of the victim to encourage imposition of an exceptional sentence, and that this conduct violated the plea agreement. When a defendant pleads guilty, he or she waives various constitutional rights, including the right to a jury trial, to confront one’s accusers, to present witnesses, to remain silent, and to be convicted by proof beyond a reasonable doubt. State v. Tourtellotte, 88 Wn.2d 579, 583, 564 P.2d 799
(1977), citing Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Waiver of these rights in the form of a plea bargain creates a binding agreement between the State and the defendant. State v. Sledge, 133 Wn.2d 828, 838-39, 947 P.2d 1199 (1997); Tourtellotte, 88 Wn.2d at 584, citing Santobello, 404 U.S. at 263. Because plea agreements affect fundamental constitutional rights, a claim that a plea agreement was breached can be raised for the first time on appeal. State v. Van Buren, 101 Wn. App. 206, 211-12, 2 P.3d 991
(2000), citing State v. WWJ Corp., 138 Wn.2d 595, 603, 980 P.2d 1257
(1999)).
A plea agreement requires the State to exercise good faith in fulfilling the promises that were part of the inducement which led the defendant to enter into the agreement. Sledge, 133 Wn.2d at 839; State v. Coppin, 57 Wn. App. 866, 871, 791 P.2d 228 (1990), citing Santobello, 404 U.S. at 262), distinguished on other grounds by State v. Jerde, 93 Wn. App. 774, 784-86, 970 P.2d 781 (1999). This includes making the specific sentencing recommendation that the State promised the defendant it would make. Sledge, 133 Wn.2d at 840; Coppin, 57 Wn. App. at 874. Although a prosecutor is not required to make the recommendation `enthusiastically,’ he or she may not undercut the terms of the agreement, `explicitly or by conduct evidencing an intent to circumvent the terms of the plea agreement.’ Sledge, 133 Wn.2d at 840. See also, Jerde, 93 Wn. App. at 780; Coppin, 57 Wn. App. at 874. The test is whether the prosecutor contradicts, by word or conduct, the State’s own recommendation. State v. Talley, 134 Wn.2d 176, 197, 949 P.2d 358 (1998).
In State v. Sledge, the prosecutor improperly undercut a plea agreement when, after making the agreed-upon recommendation for a sentence within the standard range, he elicited extensive testimony from the defendant’s probation counselor and parole officer about their recommendations for an exceptional sentence and re-emphasized various aggravating factors which would sustain an exceptional sentence. Sledge, 133 Wn.2d at 842-43. Similarly, in State v. Jerde the State violated the terms of the plea agreement when the prosecutor first recommended the agreed-upon mid-range sentence, and then proceeded to outline the legal and factual basis upon which the court could impose an exceptional sentence. Jerde, 93 Wn. App. at 777-78, 782. See also, State v. Williams, 103 Wn. App. 231, 233, 11 P.3d 878 (2000) (State violated plea agreement to recommend a standard range sentence by submitting a sentencing report that set forth aggravating circumstances for an exceptional sentence); State v. Van Buren, 101 Wn. App. 206, 217, 2 P.3d 991 (2000) (State violated the plea agreement when it downplayed its recommendation and focused the court’s attention on various aggravating factors).
Here, the prosecutor described factors of the murder that he asserted would justify an upper-end standard range sentence for Torres. These factors may have been the same ones the court relied upon in imposing an exceptional sentence. Nevertheless, Torres only asserts that the prosecutor breached the plea agreement by actively enlisting members of the victim’s family to recommend an exceptional sentence. However, the record does not support this conclusion.
The record indicates that family members were aware that they could appear at the sentencing hearing, aware that they could ask the judge to give a higher sentence than that recommended by the State, and that somebody made them aware of these rights. Inferentially, it may have been the prosecutor, in that the victim’s sister indicated that they were made aware of their rights `{w}hen the prosecutors made the plea agreement{.}’ 2 Report of Proceedings at 36. But the record also indicates that the family worked with a victim’s and witnesses’ advocate, and that the victim’s brother-in-law engaged in some rather sophisticated legal research on his own. But even if it was the prosecutor who made the victim’s family aware of their rights, the prosecutor did not thereby undercut the plea bargain.
Division Two of this court recently held that a prosecutor did not undercut a plea bargain in which the state agreed to recommend a low-end standard range sentence by failing to object to the sentencing court’s consideration of an argument by an attorney representing the victim’s family, in which the family sought the imposition of an exceptional sentence. See State v. Lindahl, 114 Wn. App. 1, 12, 56 P.3d 589
(2002), review denied 149 Wn.2d 1013 (2003). As the Lindahl court pointed out, the prosecutor had no basis for objecting. This is because RCW 7.69.030(13) provides that reasonable efforts shall be made to ensure that survivors of crime victims have the right to `submit a victim impact statement or report to the court{.}’ And for felony convictions, the survivors may submit their statements personally or by representation, at the sentencing hearing. RCW 7.69.030(14). See also RCW 9.94A.500(1) (requiring sentencing courts to consider victim impact statements and to allow arguments from survivors of victims and others regarding the sentence to be imposed). Moreover, the right of crime victims or their representatives to be heard at sentencing is more than merely statutory, it is constitutional. See Const., art. I, sec. 35 (giving crime victims or their representatives a constitutional right to make statements at sentencing).
It is clear from the record that the victim’s family was outraged at the plea bargain in this case. If they made their outrage known to the prosecutor, and if the prosecutor then advised them that they had both statutory and constitutional rights to be heard at sentencing, and that they could make their own sentencing recommendations independently, this is understandable.
Indeed, the prosecutor would have been remiss in failing to so advise them. It follows, then, that where the prosecutor, as here, makes the agreed-upon sentencing recommendation and actively advocates for it, the fact that the prosecutor may also have informed the victim’s family of their right to be heard at sentencing and to make a different recommendation, does not in and of itself undermine the plea bargain. A prosecutor who agrees to recommend a standard range sentence, and who makes that recommendation at sentencing, has not `actively enlisted’ family members to advocate for a different sentence merely by advising them of their statutory and constitutional rights to be heard at sentencing. Torres does not argue that the exceptional sentence should be reversed on any other basis. Accordingly, we affirm the exceptional sentence.
II. Community Custody
The court also imposed a term of community custody of 36 to 48 months `or for the entire period of earned early release awarded under RCW 9.94A.150, whichever is longer.’ Clerk’s Papers at 51. Torres asserts that this boilerplate language is necessarily ambiguous because he must review various statutes to determine his maximum early release credits. He argues that the sentence requires remand for clarification of the actual term of community custody he must serve.
A trial court should expressly provide in the judgment and sentence for the precise term of community placement. State v. Broadaway, 133 Wn.2d 118, 135, 942 P.2d 363 (1997). `Where a sentence is insufficiently specific about the period of community placement required by law, remand for amendment of the judgment and sentence to expressly provide for the correct period of community placement is the proper course.’ Broadaway, 133 Wn.2d at 136. Whether the boilerplate language used to specify community placement is sufficiently specific is a question of law that receives de novo review. State v. Campbell, 125 Wn.2d 797, 800, 888 P.2d 1185 (1995). Three cases involving calculations of earned early release time and community placement are instructive here.
In State v. Jones, 96 Wn. App. 649, 650, 980 P.2d 791 (1999), the defendant was convicted of delivery of cocaine within a bus zone and sentenced to a standard range sentence. The sentence contained boilerplate language that specified he was sentenced to one year community placement for `any felony offense under chapter 69.50 or 69.52
RCW’ to begin either upon completion of the term of confinement or at the time the defendant was transferred to community custody in lieu of early release. The defendant argued that this language was insufficiently specific to articulate the terms of community custody. Jones, 96 Wn. App. at 651. The court held that unlike other cases that presented unusual circumstances, such as calculation of community placement after imposition of an exceptional sentence, it was clear from the face of the documents that the defendant was subject to one year of community placement. Thus, remand for clarification was unnecessary. Id. at 652-53, citing State v. Jones, 93 Wn. App. 14, 16-17, 968 P.2d 2
(1998); State v. Raines, 83 Wn. App. 312, 316-17, 922 P.2d 100
(1996).
In State v. Nelson, 100 Wn. App. 226, 227, 996 P.2d 651 (2000), the defendant’s sentence also contained boiler-plate language, stating:
Defendant additionally is sentenced on convictions herein, for each sex offense and serious violent offense committed on or after 1 July 1990 to community placement for two years or up to the period of earned release awarded pursuant to RCW 9.94A.150(1) and (2) whichever is longer and on conviction herein for . . . any crime against a person where it is determined in accordance with RCW 9.94A.125 that the defendant or an accomplice was armed with a deadly weapon at the time of commission . . . to a one-year term of community placement.
Nelson, 100 Wn. App. at 228.
This court ruled that the defendant’s particular sentence required him to engage in complicated statutory research to determine his maximum early release date because his conviction involved both a serious offense and a deadly weapon finding. Because the defendant’s term of community custody could be definitely determined, but only after complicated research, the sentence was deemed ambiguous and required remand for clarification. Nelson, 100 Wn. App. at 228-231.
In State v. Mitchell, 114 Wn. App. 713, 715, 59 P.3d 717 (2002), the defendant was convicted of one count of possession of heroin and sentenced to a standard range. His sentence provided a community custody period of 9 to 12 months `or for the entire period of earned early release awarded under RCW 9.94A.150, whichever is longer.’ However, unlike the defendant in Nelson, the defendant in Mitchell could earn up to 19 months of early release time, a period of time longer than the 9 to 12 month period of community custody. Thus, his term of community custody was not capable of a definite statement. Mitchell, 114 Wn. App. at 716-17.
This court held that remand was not required, both because the trial could not determine the term of community custody with certainty at the time of sentencing and because the term of community custody could easily be determined at the time of the defendant’s release. Mitchell, 114 Wn. App. at 718-19. Here, the situation is like more like the situation presented in Nelson. Torres’ term of community custody was capable of exact determination at the time of sentencing. However, due to his exceptional sentence, he had to engage in complicated statutory research to calculate his maximum time of early release. This is the same type of ambiguity that Nelson attempted to dissuade, and a complication anticipated by Jones. Nevertheless, Torres properly concludes that the maximum amount of early release time he could receive is 21 months. This is because he cannot earn any early release credits for that portion of his sentence that includes the 240-month mandatory confinement for murder, RCW 9.94A.540, or the consecutive mandatory 24-month deadly weapon enhancement, RCW 9.94A.510(4)(e).
And for the remaining portion of his sentence, 140 months, he may not earn more than 15 percent in earned early release credits, that is, 21 months, former RCW 9.94A.150(1), recodified as RCW 9.94A.728 by Laws 2001, ch. 10, sec. 6, which is less than the 36 to 48 month term prescribed by statute. Thus, Torres’ term of community custody is 36 to 48 months. If Torres had not been able to calculate his term of community custody with precision, we would be required to remand so that the trial court could do so. But because Torres was able, with the assistance of his appellate counsel, to perform the appropriate calculation, remand for the purpose of requiring the trial court to perform exactly the same calculation would be a waste of judicial time and resources. Accordingly, we express our appreciation to appellate counsel for performing the necessary calculation, and we hereby modify the judgment and sentence to strike the boilerplate language and simply to state that Torres term of community custody is 36 to 48 months. We also encourage prosecutors in like situations to either take care of the problem before the issue reaches the appellate court, or to concede error on appeal. As modified by this court, the judgment and sentence is affirmed.
COX and BAKER, JJ., concur.