In Re the Personal Restraint of James

640 P.2d 18, 96 Wash. 2d 847, 1982 Wash. LEXIS 1244

• Court: Washington Supreme Court
• Decided: January 15, 1982
• Docket: 47286-6
• Status: Published

Opinions

Per Curiam.

This personal restraint petition questions the authority of the State to renege on a plea bargain when the defendant, after pleading guilty pursuant to that bargain, allegedly commits additional misdemeanors. We hold that absent proof of misconduct, all plea bargains must be enforced.

Petitioner Freddie Lee James was charged with first degree robbery. His crime involved approximately one dollar and he is, as he was then, mentally handicapped and cannot read or write.

A plea agreement was reached, whereby petitioner agreed to plead guilty to second degree robbery if the prosecutor would recommend probation. Pursuant to that agreement, a guilty plea was entered.

Finding a basis for the plea, the trial court accepted it and released petitioner pending his sentencing. He soon, however, was arrested for two additional misdemeanors. These alleged misdemeanors occurred after both the plea agreement and the entry of his plea.

At sentencing the prosecutor refused to recommend probation, claiming that those misdemeanors excused its performance. Petitioner's attorney, on the other hand, argued that petitioner's record still justified probation. He, however, did not object to the State's position. Instead, he simply expressed appreciation for the State's predicament.

Petitioner became quite confused. He had thought the court would allow him to continue his schooling. He openly denied the validity of the misdemeanor accusations. He also allegedly requested his attorney to withdraw his plea.

Unmoved and relying on a presentence report, the trial court found petitioner to be a poor probation risk and thus sentenced him to prison.

I

Petitioner now claims that the State, by withholding its recommendation, violated his constitutional rights. There can be no question that prosecutorial negation of a plea agreement presents an issue of constitutional magnitude. A plea bargain involves the waiver of several constitutional rights. See Santobello v. New York, 404 U.S. 257, 264, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971) (Douglas, J., concurring); State v. Tourtellotte, 88 Wn.2d 579, 564 P.2d 799 (1977); In re Palodichuk, 22 Wn. App. 107, 589 P.2d 269 (1978); Gamble v. State, 95 Nev. 904, 604 P.2d 335 (1979); People v. Price, 36 Ill. App. 3d 566, 344 N.E.2d 559 (1976). They include the right to a jury trial, to confront one's accusers, to present witnesses in one's defense, to remain silent, and to be convicted by proof beyond a reasonable doubt. Santobello, supra; Tourtellotte, supra. For this reason, a plea bargain warrants the same judicial solicitude given a guilty plea, see Santobello, supra; Tourtellotte, supra, and has constitutional significance.

Though this issue could have been appealed and was not, there is no evidence that the failure to do so was deliberate. On the contrary, the record shows that the court twice informed petitioner that by pleading guilty he was waiving all appeal rights. Petitioner had no reason to suspect that he had a right to appeal after such admonitions by the trial court. In light of these admonitions and the constitutional nature of the claims, the petition should be reviewed.

II

Arguing that his constitutional rights have been violated, petitioner contends that he is entitled to specific performance of his bargain. When a prosecutor breaches an agreement by failing to recommend probation, a defendant is entitled to withdraw any entered plea or to have the bargain specifically enforced. In re Palodichuk, supra; see Darnell v. Timpani, 68 Wn.2d 666, 414 P.2d 782 (1966); Tourtellotte, supra. This right exists even though the sentencing judge was not bound, nor even influenced, by the prosecutor's recommendation. In re Palodichuk, supra; Santobello, supra. It exists provided the defendant has complied with the agreement. In re Palodichuk, supra; Tourtellotte, supra.

Regarding compliance by the defendant, several jurisdictions have concluded that merely accusing the defendant of misconduct does not relieve the State of its bargained-for duty. See, e.g., United States v. Simmons, 537 F.2d 1260 (4th Cir. 1976); Gamble, supra; State v. Warren, 124 Ariz. 396, 604 P.2d 660 (Ct. App. 1979); State v. Curry, 49 Ohio App. 2d 180, 359 N.E.2d 1379 (1976). They have reasoned that the issue of noncompliance is a question of fact to be determined by the court, and that to permit the State to unilaterally nullify an agreement would constitute "manifest impropriety," Simmons, at 1261, and an abdication of the court's duty to ensure "fairness and candor." Tourtellotte, at 583.

To ensure fairness, those jurisdictions have required, before relieving the State of its promises, that an evidentiary hearing be held and that the defendant be given an opportunity to call witnesses and have other due process rights, including the requirement that the State prove, by a preponderance of the evidence, that the defendant has failed to perform his or her part of the agreement. Simmons, supra; Gamble, supra; Warren, supra; Curry, supra. Like them, we believe such a procedure is constitutionally required.

The law has over recent years created an expectation that the State will keep its bargains unless the defendant has failed to keep his or hers. As we noted in Tourtellotte, at page 584: Once the law has created such an expectation or right, due process requires a hearing before it can be taken away. See Vitek v. Jones, 445 U.S. 480, 63 L. Ed. 2d 552, 100 S. Ct. 1254 (1980); In re Sinka, 92 Wn.2d 555, 599 P.2d 1275 (1979) . A hearing ensures that the right or the expectation is not arbitrarily denied. With plea bargains, if there were no evidentiary hearings, a defendant merely accused of postplea crimes, but innocent and later acquitted of them, could nonetheless lose the benefit of his or her bargain.

If a defendant cannot rely upon an agreement made and accepted in open court, the fairness of the entire criminal justice system would be thrown into question.

The State carries a heavy burden of demonstrating a voluntary, knowing, and intelligent waiver of any constitutional right. State v. Coyle, 95 Wn.2d 1, 621 P.2d 1256 (1980) ; State v. Sweet, 90 Wn.2d 282, 581 P.2d 579 (1978). Such waivers will not be presumed. Coyle, supra; Sweet, supra. Here petitioner has a right to such a hearing notwithstanding his failure to make a motion either to withdraw the plea or to enforce the agreement. The facts of this case dictate such failure does not constitute a knowing waiver of his constitutional rights. Petitioner is unable to read and write and has spent over a year in a school for retarded children. Nothing in the record indicates he was aware of the consequences of failing to make such a motion. Furthermore, petitioner alleges that he requested his attorney to withdraw the plea,¹ and he contends he is not guilty of the alleged misdemeanors. In its response to this petition, the State does not deny these facts; nor does the State allege that the petitioner waived a right to have this question reviewed on collateral review. Not only does the State fail to claim that the question has been waived, the record provides no basis for finding petitioner voluntarily waived his right to an evidentiary hearing.

The case is therefore remanded to Superior Court to determine whether to permit petitioner to withdraw his plea or to grant specific performance of the bargain.² The appropriate remedy is for the trial court to decide, with the defendant's preference to be accorded considerable weight. Tourtellotte, supra; In re Palodichuk, supra; State v. Pope, 17 Wn. App. 609, 564 P.2d 1179, review denied, 89 Wn.2d 1009 (1977).

The petition is granted and the case remanded for proceedings consistent with this opinion.

1 Where procedural defects are attributable to incompetent counsel, a Sixth Amendment claim by a petitioner in a personal restraint petition should not be foreclosed by such procedural defects.

2 As there was not a determination that petitioner even committed the misdemeanors, we need not decide if the alleged acts are the type of criminal activity which breaches the agreement.