DAN SPANGLER, District Judge (Retired).
[T1] Appellant Wayne W. Clingman entered a guilty plea to the charge of taking immodest, immoral, or indecent liberties with a minor under Wyo. Stat. Aun. § 14-3-105(a) (LEXIS 1999) and was sentenced to a prison term of three to five years. He appeals from the Judgment and Sentence and an order denying his motion to withdraw his guilty plea. We affirm.
ISSUES
[T2] Appellant states these issues:
I. Did the State breach its plea agreement with Appellant and violate his due process rights?
IL - Did the trial court abuse its discretion in denying Appellant's motion to withdraw his plea after sentencing?
THE PLEA AGREEMENT
[¶3] Appellant and the State entered into a plea agreement contained in a letter from the prosecutor to Appellant's attorney. The pertinent portion of the agreement states:
2. Following your client's plea of guilty and preparation of Presentence Investigation, the State will appear at sentencing and specifically limit our argument to the facts of this particular case, and the general purposes of sentencing. That is, we will not argue to the Court that a particular sentence should be imposed, nor insist or suggest to the Court during our argument that probation should not be imposed, nor alternatively that incarceration must be imposed. That would be the sole limitation on our argument, and as you know under Rule 11 of the Wyoming Rules of Criminal Procedure, and the law of sentencing generally, the State cannot agree to withhold information, ete. from the Court.
STANDARD OF REVIEW
[¥4] When a plea of guilty rests to any significant degree on a promise or agreement by the State, that promise must be fulfilled. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971); Clouse v. State, 809 P.2d 791, 795 (Wyo.1991). Whether the prosecutor has violated the plea agreement is a question that is reviewed de novo. United States v. Robertson, 45 F.3d 1423, 1442 (10th Cir.1995).
THE VICTIM IMPACT STATEMENT
[15] Appellant complains that six comments made at sentencing by the prosecutor violated the plea agreement. The first comment referred to statements by the child's family in the victim impact statement: "And, of course, the aunt, of course, and the mother certainly don't want him incarcerated, as that's understandable. Just as understandable as the victim impact is, that they want and believe it's appropriate to have him incarcerated." This was part of the record before the trial judge. Simply referring to these matters does not constitute an argument for imprisonment or against probation.
SEX OFFENDER PROGRAMS
[16] Appellant argued for probation and sex offender treatment in the community. The prosecutor responded:
I would note that there is a treatment argument made, probation and treatment. Again, just for the Court's knowledge and background, the Court knows there is a [29]*29sex offender program in place, in fact the only one in Carbon County in place is in place within the Wyoming State Penitentiary. The Department of Corrections runs one there. I checked as early as January to ensure it is operating there still, and it is. It is the only one still operating in the county. That's just for your information in assessing what it is you can do.
The plea agreement noted that the State could not agree to withhold information from the district court.
[¶7] This subject was addressed in the case of Jackson v. State, 902 P.2d 1292, 1294 (Wyo.1995) (citations omitted):
Efforts by the State to provide relevant factual information are not tantamount to taking a position on the sentence and will not violate a plea agreement.... Thus, if the State is aware that the court lacks certain relevant information, the prosecutor has the duty, as an officer of the court, to bring that information to the attention of the court. In this case, the State promised to "stand silent" at the time of sentencing. That promise, however, did not require the prosecutor to withhold from the district court pertinent information on appellant's background and character.
As in the Jackson case, the prosecutor in this instance did not violate the agreement by providing this information on treatment programs.
THE PSYCHOLOGICAL EVALUATION
[18] Appellant argues that the prosecutor breached the plea agreement by referring to a statement in a psychological evaluation that he probably was denying the full extent of his offense. Pointing out that Appellant had not told the psychologist or the probation officer that his semen was on the child's clothing, the prosecutor stated:
You don't see that in the PSI or in the evaluation, and this evaluation was done at his request. It does a risk assessment, I will talk about that in a minute. It notes something important for you to weigh, that is any time a Defendant minimizes over and over again, including to an evaluator, how much does that weigh? Does that weigh in favor of incarceration or probation, and possibly of rehabilitation and treatment if you're not owning up?
This is a reference to records before the district court. It is not an argument for a particular sentence nor is it a suggestion that probation should not be imposed or incarceration must be imposed.
THE PRESENTENCE REPORT
[19] The presentence investigation recommended that Appellant be incarcerated. In that regard, the prosecutor said: "The PSI, after thoughtful evaluation of what the Defendant said, the charging documents, and whatever background they knew and the lengthy victim impact statements represented there, recommend incarceration." Appellant's objection to this statement is not well founded. The prosecutor was only repeating a recommendation that had been made in a document before the district court.
THE CHARGING DOCUMENTS
[110] Appellant claims that the plea agreement was breached when the prosecutor made this statement about the facts of the case:
This doesn't mean it's a maybe, it isn't. Well, do we believe a 4-year-old? It's true, it happened. [Appellant] admits it, and we are only talking about what he admits. On the one hand he's here about indecent liberties. You see the factual basis. On the other hand, you can see from the charging documents a suggestion of anal intercourse was actually had, anal injury to the child. We are not going down that road, we are not talking about that.
The information referenced by the prosecutor was contained in the affidavit filed by the complaining police officer. These matters were also mentioned in the presentence investigation. The plea agreement permitted the State to argue the facts of the case. Thus, these statements do not violate the agreement.
TREATMENT OPTIONS
[T11]l Appellant takes issue with this remark by the State which was in re[30]*30sponse to his argument that he could be treated in the community:
Rehabilitation, of course, is an aspect.
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DAN SPANGLER, District Judge (Retired).
[T1] Appellant Wayne W. Clingman entered a guilty plea to the charge of taking immodest, immoral, or indecent liberties with a minor under Wyo. Stat. Aun. § 14-3-105(a) (LEXIS 1999) and was sentenced to a prison term of three to five years. He appeals from the Judgment and Sentence and an order denying his motion to withdraw his guilty plea. We affirm.
ISSUES
[T2] Appellant states these issues:
I. Did the State breach its plea agreement with Appellant and violate his due process rights?
IL - Did the trial court abuse its discretion in denying Appellant's motion to withdraw his plea after sentencing?
THE PLEA AGREEMENT
[¶3] Appellant and the State entered into a plea agreement contained in a letter from the prosecutor to Appellant's attorney. The pertinent portion of the agreement states:
2. Following your client's plea of guilty and preparation of Presentence Investigation, the State will appear at sentencing and specifically limit our argument to the facts of this particular case, and the general purposes of sentencing. That is, we will not argue to the Court that a particular sentence should be imposed, nor insist or suggest to the Court during our argument that probation should not be imposed, nor alternatively that incarceration must be imposed. That would be the sole limitation on our argument, and as you know under Rule 11 of the Wyoming Rules of Criminal Procedure, and the law of sentencing generally, the State cannot agree to withhold information, ete. from the Court.
STANDARD OF REVIEW
[¥4] When a plea of guilty rests to any significant degree on a promise or agreement by the State, that promise must be fulfilled. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971); Clouse v. State, 809 P.2d 791, 795 (Wyo.1991). Whether the prosecutor has violated the plea agreement is a question that is reviewed de novo. United States v. Robertson, 45 F.3d 1423, 1442 (10th Cir.1995).
THE VICTIM IMPACT STATEMENT
[15] Appellant complains that six comments made at sentencing by the prosecutor violated the plea agreement. The first comment referred to statements by the child's family in the victim impact statement: "And, of course, the aunt, of course, and the mother certainly don't want him incarcerated, as that's understandable. Just as understandable as the victim impact is, that they want and believe it's appropriate to have him incarcerated." This was part of the record before the trial judge. Simply referring to these matters does not constitute an argument for imprisonment or against probation.
SEX OFFENDER PROGRAMS
[16] Appellant argued for probation and sex offender treatment in the community. The prosecutor responded:
I would note that there is a treatment argument made, probation and treatment. Again, just for the Court's knowledge and background, the Court knows there is a [29]*29sex offender program in place, in fact the only one in Carbon County in place is in place within the Wyoming State Penitentiary. The Department of Corrections runs one there. I checked as early as January to ensure it is operating there still, and it is. It is the only one still operating in the county. That's just for your information in assessing what it is you can do.
The plea agreement noted that the State could not agree to withhold information from the district court.
[¶7] This subject was addressed in the case of Jackson v. State, 902 P.2d 1292, 1294 (Wyo.1995) (citations omitted):
Efforts by the State to provide relevant factual information are not tantamount to taking a position on the sentence and will not violate a plea agreement.... Thus, if the State is aware that the court lacks certain relevant information, the prosecutor has the duty, as an officer of the court, to bring that information to the attention of the court. In this case, the State promised to "stand silent" at the time of sentencing. That promise, however, did not require the prosecutor to withhold from the district court pertinent information on appellant's background and character.
As in the Jackson case, the prosecutor in this instance did not violate the agreement by providing this information on treatment programs.
THE PSYCHOLOGICAL EVALUATION
[18] Appellant argues that the prosecutor breached the plea agreement by referring to a statement in a psychological evaluation that he probably was denying the full extent of his offense. Pointing out that Appellant had not told the psychologist or the probation officer that his semen was on the child's clothing, the prosecutor stated:
You don't see that in the PSI or in the evaluation, and this evaluation was done at his request. It does a risk assessment, I will talk about that in a minute. It notes something important for you to weigh, that is any time a Defendant minimizes over and over again, including to an evaluator, how much does that weigh? Does that weigh in favor of incarceration or probation, and possibly of rehabilitation and treatment if you're not owning up?
This is a reference to records before the district court. It is not an argument for a particular sentence nor is it a suggestion that probation should not be imposed or incarceration must be imposed.
THE PRESENTENCE REPORT
[19] The presentence investigation recommended that Appellant be incarcerated. In that regard, the prosecutor said: "The PSI, after thoughtful evaluation of what the Defendant said, the charging documents, and whatever background they knew and the lengthy victim impact statements represented there, recommend incarceration." Appellant's objection to this statement is not well founded. The prosecutor was only repeating a recommendation that had been made in a document before the district court.
THE CHARGING DOCUMENTS
[110] Appellant claims that the plea agreement was breached when the prosecutor made this statement about the facts of the case:
This doesn't mean it's a maybe, it isn't. Well, do we believe a 4-year-old? It's true, it happened. [Appellant] admits it, and we are only talking about what he admits. On the one hand he's here about indecent liberties. You see the factual basis. On the other hand, you can see from the charging documents a suggestion of anal intercourse was actually had, anal injury to the child. We are not going down that road, we are not talking about that.
The information referenced by the prosecutor was contained in the affidavit filed by the complaining police officer. These matters were also mentioned in the presentence investigation. The plea agreement permitted the State to argue the facts of the case. Thus, these statements do not violate the agreement.
TREATMENT OPTIONS
[T11]l Appellant takes issue with this remark by the State which was in re[30]*30sponse to his argument that he could be treated in the community:
Rehabilitation, of course, is an aspect. It's an aspect that I suggest to you, of course I think it's fair to suggest it. [Appellant's counsel] said probation, the evaluation said treatment in the community is possible. My only comment about that is treatment is also possible and in place inside the custody of the penitentiary.
As noted earlier, this statement only provides information to the district court about the location of a treatment program. It is not an argument for or against a particular sentence.
CONCLUSION
[¶12] We do not find that the State breached the plea agreement. The statements in question provided information, discussed the facts, or referred to written materials before the district court. The prosecutor did not argue that a particular sentence should be imposed. He did not insist or suggest that probation should not be imposed or that incarceration must be imposed.
[¶13] Appellant also contends that the district court erroneously denied his motion to withdraw his plea of guilty. The motion was based upon the same issues discussed above. The State counters that this issue is not properly before us because Appellant did not file a notice of appeal from this ruling. Given our conclusion that the prosecution did not breach the plea agreement, it is not necessary for us to resolve the jurisdictional issue. The motion to withdraw the plea rests upon the same issue decided adversely to Appellant in this opinion.
[T 14] Therefore, the Judgment and Sentence is affirmed.
GOLDEN, J., filed a specially concurring opinion in which LEHMAN, C.J., joined.