Smith v. Stegall

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 30, 2004
• Docket: 02-2441
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Smith v. Stegall No. 02-2441 ELECTRONIC CITATION: 2004 FED App. 0335P (6th Cir.) File Name: 04a0335p.06 OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Jeffrey M. Brandt, ROBINSON & BRANDT, Cincinnati, Ohio, for Appellant. UNITED STATES COURT OF APPEALS William C. Campbell, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for Appellee. FOR THE SIXTH CIRCUIT _________________ GILMAN, J., delivered the opinion of the court, in which MATIA, D. J., joined. CLAY, J. (pp. 13-17), delivered a KENNETH C. SMITH, X separate dissenting opinion. Petitioner-Appellant, - - _________________ - No. 02-2441 v. - OPINION > _________________ , JIMMY STEGA LL, Warden, - RONALD LEE GILMAN, Circuit Judge. Kenneth C. Respondent-Appellee. - Smith fatally shot Gary DeLano Brown in June of 1989. N After his first-degree murder conviction was reversed on Appeal from the United States District Court procedural grounds, Smith elected to plead guilty in a for the Eastern District of Michigan at Detroit. Michigan state court to one count of second-degree murder No. 01-72959—Robert H. Cleland, District Judge. rather than face a retrial for first-degree murder. The state promised in the plea agreement not to recommend a sentence Argued: August 4, 2004 of life imprisonment.

Decided and Filed: September 30, 2004 At sentencing, the prosecution literally complied with the plea agreement, but did request that Smith be imprisoned for Before: CLAY and GILMAN, Circuit Judges; MATIA, a term of 70 to 100 years. In addition, when asked by the Chief District Judge.* court if any of the victim’s family members wished to speak, the prosecutor replied that they wanted Smith to receive a life _________________ sentence. Defense counsel made no objection to the prosecutor’s statements. Smith was sentenced by the state COUNSEL trial court to a term of 35 to 55 years in prison plus an additional 2 years for the use of a firearm in connection with ARGUED: Jeffrey M. Brandt, ROBINSON & BRANDT, the crime. Cincinnati, Ohio, for Appellant. William C. Campbell, After exhausting his remedies in the Michigan state courts, Smith filed a petition for a writ of habeas corpus in the district court. He contended that the state had effectively * The Honorable Paul R. Matia, Chief United States District Judge for recommended a life sentence, thereby breaching the plea the Northern District of Ohio, sitting by designation.

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agreement and violating Smith’s right to the due process of The state trial court initially sentenced Smith to a term of law under the Fourteenth Amendment to the United States 35 years to life in prison on the second-degree murder count Constitution. The district court denied the petition. For the plus an additional 2 years for the firearm violation. Two days reasons set forth below, we AFFIRM the judgment of the later, the court conducted a resentencing hearing at which it district court. altered the sentence on the second-degree murder count to a term of 35 to 55 years in prison because Michigan law does I. BACKGROUND not allow a sentence of 35 years to life. At the resentencing hearing, the prosecutor reiterated his request that Smith A. Factual background receive a sentence of 70 to 100 years in prison. Defense counsel once again did not object to this recommendation as A jury convicted Smith of first-degree murder in August of being in violation of the plea agreement. 1990. The conviction was reversed on appeal because Smith was found to have been denied his Sixth Amendment right to B. Procedural background a jury selected from a fair cross section of the community. Instead of going to trial a second time, Smith elected to plead Smith appealed to the Michigan Court of Appeals, guilty to one count each of second-degree murder, possession contending for the first time that the plea agreement was of a firearm during the commission of a felony, and the breached when the prosecutor recommended a sentence “for commission of a second felony offense by a habitual offender. as long as possible under the law,” urged a specific sentence The plea agreement, as summarized by the state trial court, of 70 to 100 years, and stated that the victim’s family wanted provided that “[t]he People [would be] free to make whatever Smith to receive a life sentence. The appellate court rejected recommendation they want at sentencing, except they do this argument, reasoning as follows: agree they will not recommend life imprisonment as the sentence in this case.” In the plea bargain, the prosecution merely agreed not to recommend the specific sentence of “life.” The plea In its sentencing brief to the state trial court, the bargain placed no restrictions on “term of years” prosecution stated: “Justice demands that the Defendant be sentence recommendations, even though a long term of sentenced for as long as possible under the law. The people years sentence may be just as harsh, if not harsher, than respectfully request a sentence of 70 to 100 years a parolable “life” sentence. People v. Carson, . . . 560 imprisonment as a second offender.” At the subsequent N.W.2d 657 (1996). Although one may question the sentencing hearing, the state repeated its request for a term of value of having the prosecution promise not to 70 to 100 years in prison. The trial court also asked the recommend a “life” sentence while leaving the prosecutor whether any member of the victim’s family prosecution free to recommend an equally harsh or wanted to address the court, to which the prosecutor replied: harsher long term of years sentence, the fact remains that “No, Your Honor. For the record, I spoke to the victim’s the defendant received everything he bargained for. family . . . . They’ve informed me that they wish the Defendant to receive life imprisonment.” Defense counsel Nor did the plea bargain restrict the prosecution’s did not object to any of the prosecutor’s statements as being authority to advise the court of the wishes of the victim’s in violation of the plea agreement. family. . . . The prosecution did not indicate any concurrence with the family’s request for a sentence of No. 02-2441 Smith v. Stegall 5 6 Smith v. Stegall No. 02-2441

“life.” To the contrary, the prosecution recommended a Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir. 1997) (noting sentence of seventy to one hundred years’ imprisonment. that AEDPA applies to habeas petitions filed after the Act’s effective date). The Act provides in pertinent part as follows: People v. Smith, No. 207090, 1999 WL 33438154, at *1 (Mich. Ct. App. July 27, 1999) (per curiam) (unpublished) An application for a writ of habeas corpus on behalf of a (citations omitted). The Michigan Supreme Court denied person in custody pursuant to the judgment of a State Smith’s motion for leave to appeal in a one-sentence order court shall not be granted with respect to any claim that with no analysis. was adjudicated on the merits in State court proceedings unless the adjudication of the claim – Smith then filed a motion for post-conviction relief with the state trial court. The motion was denied. Leave to appeal the (1) resulted in a decision that was contrary to, or trial court’s decision was later denied by both the Michigan involved an unreasonable application of, clearly Court of Appeals and the Michigan Supreme Court. established Federal law, as determined by the Supreme Court of the United States; or Smith’s next legal step was to file a petition for a writ of habeas corpus with the district court in August of 2001. In (2) resulted in a decision that was based on an his petition, Smith raised four claims, including his argument unreasonable determination of the facts in light of that the prosecution breached the plea agreement. The the evidence presented in the State court proceeding. magistrate judge assigned to the case recommended that the petition be denied. In November of 2002, the district court 28 U.S.C. § 2254(d). adopted the magistrate judge’s Report and Recommendation and denied Smith’s petition on all four claims. The district A state-court decision is “contrary to” federal law “if the court subsequently granted Smith a Certificate of state court arrives at a conclusion opposite to that reached by Appealability on the sole ground that the prosecutor had [the Supreme] Court on a question of law or if the state court breached the plea agreement. This timely appeal followed. decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, II. ANALYSIS 529 U.S. 362, 413 (2000). In contrast, an “unreasonable application” of federal law occurs where a “state court A. Standard of review identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that We review de novo the district court’s legal conclusions, principle to the facts of the prisoner’s case.” Id. “[A] federal but will set aside its findings of fact only if the findings are habeas court may not issue the writ simply because that court clearly erroneous. Lott v. Coyle, 261 F.3d 594, 606 (6th Cir. concludes in its independent judgment that the relevant 2001). The standard of review for state-court determinations, state-court decision applied clearly established federal law on the other hand, is dictated by the Antiterrorism and erroneously or incorrectly. Rather, that application must also Effective Death Penalty Act (AEDPA), codified principally be unreasonable.” Id. at 411; see also id. at 409 (“[A] federal at 28 U.S.C. § 2254(d). AEDPA applies in the present case habeas court making the ‘unreasonable application’ inquiry because Smith filed his habeas petition in August of 2001, should ask whether the state court’s application of clearly well after the Act’s effective date of April 24, 1996. See No. 02-2441 Smith v. Stegall 7 8 Smith v. Stegall No. 02-2441

established federal law was objectively unreasonable.”) Appeals’s “application of clearly established federal law was (emphasis added). objectively unreasonable.” Id. at 409. Under AEDPA, “clearly established federal law” means The leading Supreme Court case regarding a state’s breach “the holdings, as opposed to the dicta, of [the Supreme] of a plea agreement is Santobello v. New York, 404 U.S 257 Court’s decisions as of the time of the relevant state-court (1975). In Santobello, the defendant was originally charged decision.” Id. at 412. “As is dictated by the statute, we may with two gambling offenses. He agreed to plead guilty to a not look to lower federal court decisions in deciding whether single, lesser-included offense. The state of New York, in the state decision is contrary to, or an unreasonable return, agreed to the guilty plea and promised not to make a application of, clearly established federal law.” Doan v. sentencing recommendation. At the sentencing hearing, Brigano, 237 F.3d 722, 729 (6th Cir. 2001) (quotation marks however, the prosecutor (who had been assigned to the case omitted). after the plea agreement was reached) recommended that the defendant receive the maximum one-year sentence. Id. at The decisions of the lower federal courts may be 259. considered, however, for two purposes. First, “the decisions of the United States Courts of Appeals may be informative to The Supreme Court vacated the defendant’s sentence, the extent we have already reviewed and interpreted the holding that “when a plea rests in any significant degree on a relevant Supreme Court case law to determine whether a legal promise or agreement of the prosecutor, so that it can be said principle or right had been clearly established by the Supreme to be part of the inducement or consideration, such promise Court.” Hill v. Hofbauer, 337 F.3d 706, 716 (6th Cir. 2003). must be fulfilled.” Id. at 262. Despite the trial judge’s We are also bound by any prior Sixth Circuit decisions statement at sentencing that he had not been influenced by the concluding that federal law on a particular issue has been prosecutor’s recommendation, the Court rejected the “clearly established” by certain holdings of the Supreme argument that the breach of the plea agreement was harmless. Court. See Rule 206(c) of the Sixth Circuit Rules (“Reported Id. at 262-63. panel opinions are binding on subsequent panels. Thus, no subsequent panel overrules a published opinion of a previous Although Santobello discusses the consequences of a panel. Court en banc consideration is required to overrule a broken plea agreement, the case does not amplify the published opinion of the court.”). parameters of what constitutes a breach. Various circuit court decisions, however, have addressed the issue since Santobello B. The Michigan Court of Appeals’s application of was decided. This court has held that “[p]lea agreements are clearly established federal law was not objectively contractual in nature. In interpreting and enforcing them, we unreasonable are to use traditional principles of contract law.” United States v. Robison, 924 F.2d 612, 613 (6th Cir. 1991). One Smith does not contend that the Michigan Court of Appeals fundamental principle of contract interpretation is that “arrive[d] at a conclusion opposite to that reached by [the “primary importance should be placed upon the words of the Supreme Court] on a question of law or . . . decide[d] a case contract. Unless expressed in some way in the writing, the differently than [the Supreme Court] has on a set of materially actual intent of the parties is ineffective, except when it can indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, be made the basis for reformation of the writing.” 413 (2000). His sole contention is that the Michigan Court of 11 Williston on Contracts § 31:4 (4th ed. 2000). Consistent No. 02-2441 Smith v. Stegall 9 10 Smith v. Stegall No. 02-2441

with the principle articulated by Williston, this court has held in prison, therefore, could actually result in a longer term of that the state will be held to the literal terms of the plea imprisonment than a parolable life sentence. agreement. United States v. Mandell, 905 F.2d 970, 973 (6th Cir. 1990) (citing United States v. Kamer, 781 F.2d 1380, This quirk in Michigan sentencing law supports the 1387 (9th Cir. 1986)). conclusion that the prosecutor believed that a sentence of 70 to 100 years in prison was the longest possible sentence that In the present case, the state promised Smith not to Smith could receive. In other words, the prosecutor was not recommend a life sentence. No promises were made, asking that the trial court sentence Smith either for a term of however, that limited the prosecution’s ability to recommend 70 to 100 years or “for as long as possible under the law.” any particular term of years. Michigan law provides that a Instead, the prosecutor was recommending a term of 70 to defendant convicted of second-degree murder “shall be 100 years because he believed that that was the longest punished by imprisonment in the state prison for life, or any possible sentence. term of years, in the discretion of the court trying the same.” Mich. Comp. Laws § 750.317. Because the state promised Further support for this conclusion comes from the fact only that it would not recommend a life sentence, one that, at the sentencing hearing, the state recommended only a reasonable interpretation of the plea agreement is that it left term of years without reference to its written statement that the prosecutor free to recommend a statutorily permissible Smith should be sentenced for as long as possible. This sentence of “any term of years,” which would include a term suggests that the prosecution did not intend the statement in of 70 to 100 years. its sentencing brief to be interpreted as a recommendation of a life sentence. Smith contends, however, that the state went beyond recommending a particular term of years by arguing that Smith contends, however, that even if the prosecutor did “[j]ustice demands that the Defendant be sentenced for as not violate the literal terms of the plea agreement, the long as possible under the law.” According to Smith, that recommended sentence of 70 to 100 years was inconsistent assertion was the functional equivalent of asking the court to with “[t]he parties’ reasonable expectation, and certainly impose a life sentence. Smith and his counsel’s reasonable expectation, . . . that the prosecutor would not request a sentence that was the highest Smith’s argument, however, is based upon the assumption possible or long enough that Smith would spend the rest of that a sentence of parolable life is more severe than a sentence his life in prison.” But this argument ignores the principle of for a term of years. But the Michigan Court of Appeals has contract interpretation, discussed above, that “[u]nless explained that a defendant sentenced to a term of years is not expressed in some way in the writing, the actual intent of the eligible for parole until he or she has served the lower number parties is ineffective, except when it can be made the basis for (meaning that a defendant sentenced to a term of 70 to 100 reformation of the writing.” 11 Williston on Contracts § 31:4 years would not be eligible for parole until the 70 years had (4th ed. 2000). Smith is therefore asking us to ignore the lapsed), whereas a defendant sentenced to parolable life is plain language of the plea agreement and instead to enforce eligible for parole in 10 or 15 years, depending on when the his own unwritten, subjective intent. This is not a permissible offense was committed. People v. Carson, 560 N.W.2d 657, method of contract interpretation. 662-63 (Mich. Ct. App. 1997). A sentence of 70 to 100 years No. 02-2441 Smith v. Stegall 11 12 Smith v. Stegall No. 02-2441

Even if we could properly consider evidence of the parties’ the trial court’s question did not constitute a sentencing subjective intent, Smith’s allegation that the sentencing recommendation. recommendation by the prosecutor conflicted with Smith’s subjective understanding of the plea agreement is Ultimately, we must decide whether the Michigan Court of questionable. The state recommended a term of 70 to 100 Appeals’s conclusion that the state did not breach the plea years in its sentencing brief, at the sentencing hearing, and yet agreement was objectively unreasonable. That court applied again at the resentencing hearing. Yet Smith never objected a standard principle of contract interpretation in focusing on the ground that this recommendation violated the plea exclusively on the unambiguous language of the plea agreement, which suggests that the prosecution’s agreement. This court has followed the same approach when recommendation was not contrary to his subjective interpreting plea agreements, which suggests that the expectations. Michigan Court of Appeals’s methodology was not unreasonable. See United States v. Mandell, 905 F.2d 970, He also objects to the fact that the state informed the 973 (6th Cir. 1990). Whether we would have interpreted the sentencing court that the victim’s family wanted Smith to plea agreement differently if we had been in the shoes of the receive a life sentence. Under Michigan law, however, family Michigan Court of Appeals is irrelevant. A writ of habeas members have the right to make their views known to the corpus may issue only if the state court’s application of sentencing court. See Mich. Comp. Laws § 780.765. The clearly established federal law was objectively unreasonable. prosecutor did not volunteer to speak on behalf on the We conclude that it was not. victim’s family, but was simply responding to a question by the trial court. Moreover, as the Michigan Court of Appeals III. CONCLUSION stated, For all of the reasons set forth above, we AFFIRM the the plea bargain [did not] restrict the prosecution’s judgment of the district court. authority to advise the court of the wishes of the victim’s family. . . . The prosecution did not indicate any concurrence with the family’s request for a sentence of “life.” To the contrary, the prosecution recommended a sentence of seventy to one hundred years’ imprisonment. People v. Smith, 1999 WL 33438154, at *1; see also Clement v. McCaughtry, No. 92-4154, 1993 WL 513886 (7th Cir. Dec. 9, 1993) (unpublished) (holding that the victim’s statement that the court should impose a life sentence did not violate the prosecutor’s agreement not to recommend a sentence of any specific number of years, where the prosecutor did not comment on the victim’s statement or endorse it in any way). The Michigan Court of Appeals reasonably concluded that the response of the prosecutor to No. 02-2441 Smith v. Stegall 13 14 Smith v. Stegall No. 02-2441

______________ without the possibility of parole. See United States v. Carr, 170 F.3d 572, 575 (6th Cir. 1999) (“In determining whether DISSENT a plea agreement has been broken, courts look to what was ______________ reasonably understood by the defendant when he entered his plea of guilty.”) (citing United States v. Mandell, 905 F.2d CLAY, Circuit Judge, dissenting. It is well-established that 970, 972 (6th Cir. 1990)). In return for the prosecutor’s “the law does not permit a criminal defendant to bargain away assurance not to recommend that he spend the rest of his days his constitutional rights without receiving in return … the in prison with no hope of release, Smith would relinquish his benefit of his bargain ….” Bercheny v. Johnson, 633 F.2d constitutional right to insist on a jury trial, as well as related 473, 476 (6th Cir. 1980); accord United States v. Blummet, constitutional rights, and the possibility of an acquittal. 786 F.2d 720, 722 (6th Cir. 1986)). See also United States v. Wesley, 13 Fed. Appx. 257, 259 (6th Cir. 2001) (“Plea The State also expected to benefit from Smith’s plea to agreements are subject to an analysis of the rights and duties second degree murder. It would avoid the prospect of of the parties similar to the law of contracts. Each party spending considerable time and resources on a trial with no should receive the benefit of his bargain.”) (citing United guarantee of a conviction. In return, the State would States v. McQueen, 108 F.3d 64 (4th Cir. 1997)); accord relinquish its right to seek a sentence of life imprisonment United States v. Taylor, 68 Fed. Appx. 614, 615 (6th Cir. without parole, which would flow from a first degree murder 2003). Today’s majority opinion condones this prohibited conviction. practice. In violation of the parties’ bargain, the State recommended Like any defendant who enters a plea bargain, Kenneth life imprisonment without parole when it recommended a 70 Smith expected to benefit from pleading guilty to second to 100 year sentence. As the majority notes, in Michigan, a degree murder as opposed to facing re-trial and a possible defendant receiving a 70 year sentence generally is not conviction for first degree murder. Under Michigan law, a eligible for parole until 70 years of the sentence have elapsed. person guilty of first degree murder must be punished by Smith, who was 21 years old at the time of the offense, likely “imprisonment for life,” MICH. COMP. LAWS. § 750.316(1), would be over 90 years old by the time he would be eligible which means a mandatory life sentence without the possibility for parole from a 70 to 100 year sentence. It is highly of parole. See People v. Hall, 242 N.W. 2d 377, 380 (Mich. doubtful that he would survive to that age in prison, thereby 1976) (interpreting a conviction for first degree murder under revealing the true nature of the State’s recommendation – life MICH. COMP. LAWS. § 750.316 as requiring a “mandatory life imprisonment without parole. See People v. Carson, 560 sentence (without possibility of parole …”)). By contrast, a N.W.2d 657, 677 (Mich. Ct. App. 1996) (“[A] sentence of a person guilty of second degree murder must be punished by lengthy term of years that may prevent the Parole Board from “imprisonment in the state prison for life[] or any term of assuming jurisdiction, thus effectively constituting a life term years,” MICH. COMP. LAWS. § 750.317, and may be eligible without parole, is one of the most severe sentences a for parole. E.g., People v. Bazzetta, No. 237756, 2003 WL defendant may receive.”). 133060, at *3-*4 (Mich. Ct. App. Jan. 3, 2003). Thus, Smith reasonably understood that the benefit of pleading guilty to a The majority correctly notes that a sentence of 70 to 100 lesser charge would be (assuming the court followed the years in prison could result in a longer term of imprisonment prosecutor’s recommendation) avoidance of prison for life than a parolable life sentence. I am puzzled, however, as to No. 02-2441 Smith v. Stegall 15 16 Smith v. Stegall No. 02-2441

how this “quirk in Michigan sentencing law” undermines sentence” because the prosecutor did not use the word “life” Smith’s argument. If indeed Smith would have been better in her sentencing recommendation. This literal compliance off with a parolable life sentence than a lengthy term of years, with the agreement, however, did not translate into the prosecutor’s promise not to recommend life imprisonment substantive compliance. Smith relinquished his constitutional in exchange for his guilty plea was utterly worthless. rights attendant to a trial by jury in reliance on the promise Certainly, Smith did not reasonably expect that he had that the State would not recommend that he spend the rest of relinquished his constitutional rights in exchange for no his natural life behind bars. As shown above, the State did benefit whatsoever. Moreover, the relevant comparison is not not honor this promise, denying Smith the benefit of his between the potential sentences Smith faced for second bargain. I, therefore, would grant Smith’s habeas corpus degree murder, but between (a) the 70 to 100 year sentence petition because the Michigan courts’ denial of Smith’s for second degree murder that the prosecution recommended application for post-conviction relief involved an objectively and (b) the nonparolable life sentence for first degree murder unreasonable application of Santobello v. New York, 404 U.S. that Smith reasonably expected to avoid by pleading guilty, 257 (1975), which held that a prosecutor must fulfill promises i.e. a sentence that would require him to spend the rest of his that induce a guilty plea. Id. at 262. life behind bars. The fact that a sentence of parolable life actually could result in less prison time than a 70-year term I also have grave doubts about whether the prosecutor shows that Smith was not concerned about a sentence of breached the plea agreement when she disclosed the victim’s parolable life per se, but any mandatory prison sentence that family’s wishes that Smith receive a life sentence. At Smith’s would extend to the end of his natural life. The most sentencing, the court asked the prosecutor, “To your straightforward way to address this concern was to have the knowledge, is anyone else here to talk about sentencing?” prosecution agree not to recommend imprisonment for life, The prosecutor appropriately responded, “No, Your Honor.” which is precisely the promise the prosecutor failed to fulfill. But then she gratuitously added:

I disagree that Smith’s failure to object to the prosecutor’s For the record, I spoke to the victim’s family, his mother, sentencing recommendation at the time of sentencing Cora Bennett; and his brother, Fred Brown; and, sister, suggests that the recommendation was not contrary to Smith’s Dolores Brown. They’ve informed me that they wish the subjective expectations of the plea agreement. A more Defendant to receive life imprisonment. They did not plausible interpretation of Smith’s silence – or, rather, that of want to be here today. It was too painful for them to his trial counsel – is that his attorney was constitutionally have to go through this a second time 8 years after their ineffective. Because Smith requested, but was denied, a brother was, and son was murdered. They did not want certificate of appealability on this issue, I do not believe it is to see the Defendant again, so they are not here. appropriate to hold his attorney’s failures against him on this appeal. Because the court had asked only whether anyone else was present to talk about the sentencing, the prosecutor did not To conclude, the majority ignores the parties’ reasonable “simply respond[] to a question by the trial court,” as the expectations behind the plea agreement in favor of a majority states. If that were so, the prosecutor would have formalistic interpretation that ignores context and common gone silent after uttering the words “No, Your Honor.” sense. True, as a purely literal matter, the State complied with the agreement “not recommend life imprisonment as the No. 02-2441 Smith v. Stegall 17

The fact that family members had the right to make their views known to the sentencing court did not give the prosecutor license to voice their desire for a life sentence. It was incumbent on the family to appear at Smith’s sentencing, which they elected not to do, or to appoint another person to speak on their behalf. MICH. COMP. LAWS § 780.765. Even assuming that the prosecutor could have been the family’s appointed spokesperson, the prosecutor should have explicitly advised the court that, pursuant to the plea agreement, the State was not recommending a life sentence. The danger of today’s ruling is that it will encourage creative prosecutors, contractually bound to recommending lower sentences, to advocate higher sentences by proxy. By attributing the impermissible recommendation to a third party, such as a victim’s family member, the prosecutor can achieve surreptitiously what it cannot do so directly. When a plea agreement constrains a prosecutor’s sentencing recommendation, clearly the better practice is for the prosecutor to affirmatively disassociate herself or himself from the recommendations of other parties who are not similarly constrained.