STATE v. TRIERWEILER, 46587-2-I (Wash.App. 7-2-2001)

STATE OF WASHINGTON, Respondent v. WILLIAM TRIERWEILER, Appellant. In the Matter of the Post Sentence Petition of WILLIAM TRIERWEILER, Petitioner.

No. 46587-2-I, consolidated with 46303-9-I.The Court of Appeals of Washington, Division One.
Filed: July 2, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from Superior Court of King County, No. 99-1-50133-7, Hon. Sharon Armstrong, February 2, 2000, Judgment or order under review.

Counsel for Appellant(s), Washington Appellate Project, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.

Gregory C. Link, Washington Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101.

Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.

William M. Berg, Rm W554, 516 3rd Ave, Seattle, WA 98104-2390, Daniel J. Clark, W554, 516 3rd Ave Ste, Seattle, WA 98104.

Counsel for Other Parties, William A. Trierweiler (Appearing Pro Se) W.C.C., D.O.C. #928351, P.O. Box 900, Shelton, WA 98584.

PER CURIAM.

William Trierweiler pleaded guilty in reliance on the State’s promise to recommend a drug treatment sentence. The Department of Corrections (DOC) challenges his sentence because Trierweiler’s crime predated the treatment sentence statute. Due process allows a defendant who relies on a prosecutor’s misrepresentation to elect specific performance of a plea agreement, even if it contravenes sentencing statutes, unless there is a compelling reason against that remedy. Because no party offers any reason against specific performance here, we uphold Trierweiler’s sentence.

Trierweiler was charged with possession of heroin with intent to deliver, for a crime that occurred in February of 1999. In exchange for the prosecutor’s agreement to recommend a Special Drug Offender Sentencing Alternative (DOSA), Trierweiler entered an `Alford’[1] plea in February 2000.

The court accepted the plea and imposed the DOSA sentence. DOC subsequently asked the trial court to resentence Mr. Trierweiler to a standard sentence, pointing out that the amended DOSA statute did not become effective until July 1999. The sentencing judge responded that she believed that the date of the sentencing controlled, rather than the date of the crime, and declined to revise the sentence. DOC then filed a petition for post-sentence review under RCW 9.94A.210(7). Trierweiler filed a notice of appeal and the prosecutor filed a notice of cross appeal.[2] We consolidated the matters and granted the State’s motion to stay the case pending State v. Kane.[3] When Kane was decided, the stay was lifted and Trierweiler filed a brief along with the record of the plea and sentencing hearing. Trierweiler’s counsel assigned no error in his brief, indicating that he had reviewed the record for any appealable issues.

In response to Trierweiler’s brief and the record of the plea hearing, the prosecutor sought leave of the court to withdraw its cross appeal. Neither Trierweiler nor DOC objected and the motion was granted in March 2001. Because Trierweiler assigned no error, the only issue remaining before this court is DOC’s post-sentence petition.[4] DOC correctly argues that the trial court exceeded its statutory authority in sentencing Trierweiler to a DOSA sentence because the date of his crime preceded the effective date of the statute.[5] But DOC’s petition obviously did not consider the actual record of proceedings, which had not yet been produced.

The record of the plea hearing shows that the prosecution specifically recommended the DOSA in exchange for Trierweiler’s guilty plea.

A plea agreement is a contract between a defendant and the State.[6]
If the plea is based on misinformation or the State fails to abide by the agreement, due process requires that the defendant be given his choice of either withdrawal of the plea or specific performance.[7] Here the plea obviously was based on the State’s erroneous representation that the DOSA sentence was legal. The record of the plea hearing makes it clear that Trierweiler relied specifically upon that recommendation. And Trierweiler chooses specific performance for his remedy.[8] Unless there are compelling reasons not to allow the defendant’s choice of remedy, he may choose specific performance even if the resulting sentence is contrary to the terms of a sentencing statute.[9] The State “bears the burden of demonstrating that the defendant’s choice of remedy is unjust.”[10] DOC did not argue in its petition that allowing Trierweiler’s treatment sentence to continue would prejudice it and has not otherwise responded to Trierweiler’s brief. The prosecutor’s withdrawal of the cross appeal is a tacit admission that the State is not prejudiced.[11] And no compelling reason against specific performance otherwise appears in the record.[12]

Accordingly, we deny DOC’s petition for post-sentence review. Because there are no remaining issues review in this case is now terminated.

[1] See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
[2] We note that neither Trierweiler’s notice of appeal nor the State’s notice of cross appeal were timely filed. RAP 5.2(a), (f). Because the State withdrew its cross appeal, and Trierweiler assigns no error and would be entitled to respond to DOC’s petition in any event, we do not further delay proceedings to determine if the late filings could be excused.
[3] 101 Wn. App. 607, 5 P.3d 741 (2000).
[4] Acknowledging that he received his counsel’s brief, Trierweiler filed a notice of intent to file pro se supplemental brief before the prosecutor’s motion to withdraw cross appeal. Trierweiler ultimately failed to timely file a brief and the parties were notified by letter that the Court assumes Trierweiler waived the pro se brief. Neither Trierweiler nor his counsel nor DOC have filed any additional briefs or requests for extension of time to file briefs.
[5] State v. Kane, 101 Wn. App. 607.
[6] State v. Sledge, 133 Wn.2d 828, 838-9 n. 6, 947 P.2d 1199 (1997).
[7] State v. Walsh, 143 Wn.2d 1, 8-9, 17 P.3d 591 (2001); State v. Miller, 110 Wn.2d 528, 531, 756 P.2d 122 (1988).
[8] `Again, Mr. Trierweiler’s remedy is specific performance.’ Brief of Appellant/Cross Respondent at 21.
[9] See Miller, 110 Wn.2d at 532, 535-536. (remedy for inaccurate representation of maximum sentence either withdrawal of plea or specific performance of maximum sentence less than normally required by statute); In re Hoisington, 99 Wn. App. 423, 993 P.2d 296 (2000) (defendant’s understanding of maximum penalty held to bind the court to such a sentence); State v. Shineman, 94 Wn. App. 57, 971 P.2d 94 (1999) (expungement remedy required by terms of plea agreement even though not authorized by statute).
[10] State v. Moore, 75 Wn. App. 166, 173, 876 P.2d 959 (1994) (quoting Miller, 110 Wn.2d at 536).
[11] The State’s brief, filed without benefit of review of the record, inaccurately argued that the State had objected to the DOSA sentence. When Trierweiler produced the record that showed the State not only did not object but also actually recommended the DOSA sentence, the State moved to dismiss its cross appeal `[i]n light of a review of the verbatim report of the proceedings.’ Motion to Withdraw State’s Cross Appeal, at 2.
[12] For example, there is no suggestion that Trierweiler breached any contractual or statutory duty in entering his plea. See State v. Wilson, 102 Wn. App. 161, 6 P.3d 637 (2000) (specific performance not allowed where defendant did not accurately disclose his criminal history).