No. 49032-0-I.The Court of Appeals of Washington, Division One.
Filed: August 12, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Snohomish County, No. 001023388, Hon. Thomas J. Wynne, July 12, 2001, Judgment or order under review.
Counsel for Appellant(s), John H. Browne, Browne Ressler, Penthouse Suite, 821 2nd Ave, Seattle, WA 98104-1519.
Kathryn A. Miller, Browne Ressler, 821 2nd Ave Ste 2200, Seattle, WA 98104-1540.
Counsel for Respondent(s), Seth A. Fine, Snohomish Co. Prosecutor’s Office, Snohomish Co Pros Office, 3000 Rockefeller, Everett, WA 98201.
Mary K. Webber, Snohomish County Pros Office, Msc 504, 3000 Rockefeller, Everett, WA 98201.
PER CURIAM.
James Slattery appeals his sentence for first degree rape of a child. He argues the State breached its agreement with him by failing to recommend that he receive a Special Sexual Offender Sentencing Alternative (SSOSA). The terms of the agreement only required the State to recommend a SSOSA if Slattery submitted a sexual deviancy evaluation and treatment plan that was `acceptable to the State.’ Because the prosecutor detailed reasonable grounds for concluding the evaluation and treatment plan Slattery submitted was not acceptable to the State, the prosecutor was not required to recommend a SSOSA and did not breach the agreement by failing to do so. Therefore, we deny Slattery’s request for resentencing.
FACTS
In December 2000, the State charged Slattery with one count of first degree rape of a child. In March 2001, Slattery entered into `Stipulation for Bench Trial on Agreed Documentary Evidence.’ Slattery waived his rights to a jury trial, to confront the witnesses against him, to call witnesses on his own behalf, and to testify in his own defense. In exchange, the State agreed not to file any additional sexual abuse charges against him and to recommend a 78-month sentence. The State also agreed to recommend a SSOSA suspending all but six months of his sentence `[u]pon receipt of a sexual deviancy treatment evaluation and treatment plan each acceptable to the State from a sexual deviancy therapist acceptable to the State.’
The trial court found Slattery guilty as charged. As required by the stipulation, Slattery obtained a Sexual Deviancy Evaluation from Dr. Gary D. Smith and submitted it to the State and the trial court. At the sentencing hearing, the State asked the trial court not to impose a SSOSA and to sentence Slattery to 78 months in prison. The prosecutor based his recommendation on the evaluation’s poor prognosis for successful treatment in the community. The trial court ultimately followed the State’s recommendation, imposing a 78-month sentence. Slattery now argues he is entitled to a new sentencing hearing because the State breached its agreement to recommend a SSOSA.
DISCUSSION
Both parties agree that the stipulation in this case is an enforceable agreement between the prosecutor and the defendant. As with a plea agreement, `a prosecutor is required to adhere to the terms of the agreement.’[1] The stipulation required Slattery to give up several of his constitutional rights in exchange for the prosecutor’s promise to recommend a 78-month sentence and to recommend a SSOSA `[u]pon receipt of a sexual deviancy treatment evaluation and treatment plan each acceptable to the State from a sexual deviancy therapist acceptable to the State.’
Slattery argues the State breached the agreement by failing to recommend a SSOSA at sentencing. The State counters that under the terms of the agreement, the prosecutor was not required to recommend a SSOSA because the sexual deviancy treatment evaluation and treatment plan was not `acceptable to the State.’ Division Three of this court addressed a similar situation in State v. Koivu.[2] In that case, the defendant entered into a plea agreement in which he promised to plead guilty to one count of first degree child molestation and the prosecutor agreed, among other things, to `recommend a sexual offender sentencing option if a presentence investigation report indicated Mr. Koivu was amenable to treatment.’[3] At the sentencing hearing, the prosecutor told the court that `the presentence report indicated that Mr. Koivu was not amenable to treatment.’[4] Instead of recommending a sexual offender sentencing option as contemplated by the plea agreement, the prosecutor recommended an exceptional sentence of 120 months.[5] In holding that the prosecutor did not breach the plea agreement, the Koivu court stated:
The prosecutor agreed to recommend that Mr. Koivu receive a sexual offender sentence only if Mr. Koivu were amenable to treatment. Neither the prosecutor nor defense counsel knew at the time the plea was entered that the presentence report would indicate that Mr. Koivu was not amenable to treatment. Had the condition precedent of amenability been met, the prosecutor would have been required to recommended [sic] the alternative sentence. . . . Because it was not, the prosecutor was not bound to recommend a sexual offender sentence and was entitled to recommend an exceptional sentence. . . .[6]
As in Koivu, the stipulation in this case required the prosecutor to recommend a SSOSA on the condition that Slattery submit a sexual deviancy treatment evaluation and treatment plan that was `acceptable to the State.’
At the sentencing hearing, the prosecutor set out several reasons why the evaluation and treatment plan was not acceptable to the State. Most importantly, Dr. Smith concluded that without a `complete sexual history’ verified by a polygraph test, he could not recommend a sentencing alternative to the court.[7] Dr. Smith also expressed `concerns regarding Mr. Slattery’s success in community-based treatment’ due to the fact that `[h]e does not appear to be able to stop using marijuana on his own which would make him a poor candidate for work release and likely to violate his judgment and sentence.’ In addition, Slattery did not pass the two polygraph tests he took and was not employed. Based on Dr. Smith’s findings, the prosecutor reasonably concluded that Slattery’s evaluation and treatment plan was not acceptable to the State. Therefore, the terms of the stipulation did not require the prosecutor to recommend a SSOSA. Slattery’s reliance on In re Palodichuk[8] and State v. Sledge[9] is misplaced.
In those cases, the prosecutors made the agreed-upon sentencing recommendations but expressed reservations and presented testimony suggesting that the trial court should not accept the recommendations. Unlike Palodichuk and Sledge, this case does not involve a situation where the prosecutor made the recommendation set forth in the agreement but `undercut the terms of the agreement explicitly or by conduct evidencing an intent to circumvent the terms of the plea agreement.’10 Here, the issue is whether the agreement obligated the prosecutor to make the contemplated recommendation at all. As discussed above, we conclude it did not.
Affirmed.
(1993).