'I I l Il
! l l FILED i
\j AUGUST 1, 2017 In the Office of the Clerk of Court j WA State Court of Appeals, Division III
II' 1 t! ~
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 34577-7-111 ) Respondent, ) ) v. ) PUBLISHED OPINION ) LONNIE DEAN GLEIM, JR., ) ) Appellant. )
PENNELL, J. - A prosecutor's duty to abide by the terms of a plea agreement
applies both at an original sentencing hearing as well as at resentencing after remand.
What is unclear under our case law is the scope of a prosecutor's duty when a remand No. 34577-7-III State v. Gleim
order permits the trial court to choose between full resentencing and a more limited
remedy. In such circumstances, must a prosecutor advocate for full resentencing if doing
so is the only way the trial court might issue a judgment consistent with the terms of the
plea agreement? I Our answer is no. Until the trial court makes clear that it has opted for full
resentencing, a prosecutor's duties are akin to those on an appeal. The prosecutor may
advocate for finality and oppose full resentencing, even if it means the sentence sustained
against the defendant differs from the disposition recommended in the parties' plea
agreement.
Applying this principle to the present case, we reject Lonnie Dean Gleim Jr. 's
claim that the prosecutor violated the terms of Mr. Gleim's plea agreement on remand by
not advocating for full resentencing. We also disagree with Mr. Gleim's other
assignment of error pertaining to the imposition of legal financial obligations (LFOs ).
The matter is therefore affirmed.
BACKGROUND
Mr. Gleim pleaded guilty to four counts of first degree possession of depictions of
a minor engaged in sexually explicit conduct. Pursuant to a plea agreement, the parties
2 No. 34577-7-III State v. Gleim
agreed to a joint recommendation of 36 months' confinement. This recommendation was
substantially lower than the standard range of 77 to 102 months.
At the original sentencing hearing in 2015, the State and Mr. Gleim both requested
an exceptional sentence downward of 36 months' confinement followed by 36 months'
community custody. It is undisputed that the prosecutor abided by his duties under the
plea agreement at this hearing. However, the trial court opted for a high-end sentence of
102 months on each count, all to run concurrently, plus 36 months of community custody.
The court also imposed a series of discretionary and mandatory LFOs. Pertinent to this
appeal, the court imposed $200 in unspecified "Court costs." Clerk's Papers (CP) at 28.
Mr. Gleim appealed. During his first appeal, Mr. Gleim successfully argued the
total sentence imposed by the court exceeded the statutory maximum and discretionary
LFOs were imposed without an adequate inquiry into ability to pay. State v. Gleim, No.
33209-8-III, slip op. at 1-2 (Wash. Ct. App. May 3, 2016) (unpublished),
http://www.courts.wa.gov/opinions/pdf/332098.unp.pdf. We remanded Mr. Gleim's case
"to the trial court to either amend the community custody term or to resentence Mr. Gleim
consistent with [RCW 9.94A.701(9)]" and to conduct a proper LFO inquiry. Id. at 6-7,
11.
3 No. 34577-7-III State v. Gleim
Mr. Gleim's case returned to the trial court for proceedings before the original
sentencing judge. On remand, the prosecutor initially informed the court the general
purpose of the hearing was to amend Mr. Gleim's term of community custody and to
conduct an individualized inquiry into LFOs. The defense objected, claiming the purpose
was to conduct a full resentencing. After a continuance, the prosecutor revised his
statement, explaining the purpose was either to amend the previous judgment or to issue a
new judgment and sentence "that goes through everything." 1 Verbatim Report of
Proceedings (VRP) (June 27, 2016) at 4. Defense counsel then continued to argue for a
full resentencing and advocated at length for the joint recommendation contained in the
plea agreement. At the close of defense counsel's comments, the court asked if the
prosecutor had anything to add. He stated he did not.
Immediately after the prosecutor declined further comment, defense counsel made
an oral motion to withdraw Mr. Gleim's guilty plea. The defense claimed the State had
violated its plea agreement obligation to recommend a 36-month term of incarceration.
The prosecutor responded the State had never changed its recommendation and the State
reiterated the same recommendation. The court noted it had the parties' recommendation.
The motion to withdraw the plea was then denied. After the court's oral ruling, defense
4 No. 34577-7-III State v. Gleim
counsel complained the prosecutor never articulated any reasons in support of its 36-
month recommendation. The court stood by its ruling.
After disposing of Mr. Gleim's motion to withdraw his plea, the court resentenced
Mr. Gleim to 102 months concurrent on all four counts and 18 months community
custody. This was the first time during the proceedings that the court clarified it would be
resentencing Mr. Gleim, as opposed to merely amending the term of community custody.
As part of the resentencing, the court also imposed $800 in LFOs, noting it was "taking
off those that are voluntary fines." 1 VRP (June 27, 2016) at 12. The $800 imposed by
the court includes a $500 victim assessment fee, a $100 DNA (deoxyribonucleic acid)
collection fee, and a $200 clerk's filing fee.
Mr. Gleim appeals the sentence imposed on remand, arguing the State breached
the plea agreement and the court failed to recognize and strike a discretionary LFO.
ANALYSIS
Breach of plea agreement
Mr. Gleim argues the trial court abused its discretion 1 by denying the motion to
withdraw his guilty plea based on breach of the plea agreement. Because there was no
1 We review a trial court's denial of a motion to withdraw a plea for abuse of discretion. State v. Jamison, 105 Wn. App. 572, 589-90, 20 P.3d 1010 (2001).
5 No. 34577-7-III State v. Gleim
breach, we disagree.
Both the law of contracts and due process require prosecutors to abide by the terms
of their plea agreements in good faith. In re Pers. Restraint ofLord, 152 Wn.2d 182,
188-89, 94 P.3d 952 (2004). This duty applies both at an original sentencing hearing and
at resentencing. State v. Arko, 52 Wn. App. 130, 132, 758 P.2d 522 (1988). Thus, if a
plea agreement obliges the prosecutor to make a certain recommendation at sentencing,
the same recommendation generally must be made if the case is remanded for
resentencing after appeal. Id. at 135. However, during the period between initial
sentencing and resentencing, a prosecutor's obligations are different. If a trial court
imposes a sentence different from what was contemplated by a plea agreement, the
prosecutor may defend the sentence on appeal and argue against resentencing. Id. at 134.
The circumstances confronted by the prosecutor during Mr.
Free access — add to your briefcase to read the full text and ask questions with AI
'I I l Il
! l l FILED i
\j AUGUST 1, 2017 In the Office of the Clerk of Court j WA State Court of Appeals, Division III
II' 1 t! ~
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 34577-7-111 ) Respondent, ) ) v. ) PUBLISHED OPINION ) LONNIE DEAN GLEIM, JR., ) ) Appellant. )
PENNELL, J. - A prosecutor's duty to abide by the terms of a plea agreement
applies both at an original sentencing hearing as well as at resentencing after remand.
What is unclear under our case law is the scope of a prosecutor's duty when a remand No. 34577-7-III State v. Gleim
order permits the trial court to choose between full resentencing and a more limited
remedy. In such circumstances, must a prosecutor advocate for full resentencing if doing
so is the only way the trial court might issue a judgment consistent with the terms of the
plea agreement? I Our answer is no. Until the trial court makes clear that it has opted for full
resentencing, a prosecutor's duties are akin to those on an appeal. The prosecutor may
advocate for finality and oppose full resentencing, even if it means the sentence sustained
against the defendant differs from the disposition recommended in the parties' plea
agreement.
Applying this principle to the present case, we reject Lonnie Dean Gleim Jr. 's
claim that the prosecutor violated the terms of Mr. Gleim's plea agreement on remand by
not advocating for full resentencing. We also disagree with Mr. Gleim's other
assignment of error pertaining to the imposition of legal financial obligations (LFOs ).
The matter is therefore affirmed.
BACKGROUND
Mr. Gleim pleaded guilty to four counts of first degree possession of depictions of
a minor engaged in sexually explicit conduct. Pursuant to a plea agreement, the parties
2 No. 34577-7-III State v. Gleim
agreed to a joint recommendation of 36 months' confinement. This recommendation was
substantially lower than the standard range of 77 to 102 months.
At the original sentencing hearing in 2015, the State and Mr. Gleim both requested
an exceptional sentence downward of 36 months' confinement followed by 36 months'
community custody. It is undisputed that the prosecutor abided by his duties under the
plea agreement at this hearing. However, the trial court opted for a high-end sentence of
102 months on each count, all to run concurrently, plus 36 months of community custody.
The court also imposed a series of discretionary and mandatory LFOs. Pertinent to this
appeal, the court imposed $200 in unspecified "Court costs." Clerk's Papers (CP) at 28.
Mr. Gleim appealed. During his first appeal, Mr. Gleim successfully argued the
total sentence imposed by the court exceeded the statutory maximum and discretionary
LFOs were imposed without an adequate inquiry into ability to pay. State v. Gleim, No.
33209-8-III, slip op. at 1-2 (Wash. Ct. App. May 3, 2016) (unpublished),
http://www.courts.wa.gov/opinions/pdf/332098.unp.pdf. We remanded Mr. Gleim's case
"to the trial court to either amend the community custody term or to resentence Mr. Gleim
consistent with [RCW 9.94A.701(9)]" and to conduct a proper LFO inquiry. Id. at 6-7,
11.
3 No. 34577-7-III State v. Gleim
Mr. Gleim's case returned to the trial court for proceedings before the original
sentencing judge. On remand, the prosecutor initially informed the court the general
purpose of the hearing was to amend Mr. Gleim's term of community custody and to
conduct an individualized inquiry into LFOs. The defense objected, claiming the purpose
was to conduct a full resentencing. After a continuance, the prosecutor revised his
statement, explaining the purpose was either to amend the previous judgment or to issue a
new judgment and sentence "that goes through everything." 1 Verbatim Report of
Proceedings (VRP) (June 27, 2016) at 4. Defense counsel then continued to argue for a
full resentencing and advocated at length for the joint recommendation contained in the
plea agreement. At the close of defense counsel's comments, the court asked if the
prosecutor had anything to add. He stated he did not.
Immediately after the prosecutor declined further comment, defense counsel made
an oral motion to withdraw Mr. Gleim's guilty plea. The defense claimed the State had
violated its plea agreement obligation to recommend a 36-month term of incarceration.
The prosecutor responded the State had never changed its recommendation and the State
reiterated the same recommendation. The court noted it had the parties' recommendation.
The motion to withdraw the plea was then denied. After the court's oral ruling, defense
4 No. 34577-7-III State v. Gleim
counsel complained the prosecutor never articulated any reasons in support of its 36-
month recommendation. The court stood by its ruling.
After disposing of Mr. Gleim's motion to withdraw his plea, the court resentenced
Mr. Gleim to 102 months concurrent on all four counts and 18 months community
custody. This was the first time during the proceedings that the court clarified it would be
resentencing Mr. Gleim, as opposed to merely amending the term of community custody.
As part of the resentencing, the court also imposed $800 in LFOs, noting it was "taking
off those that are voluntary fines." 1 VRP (June 27, 2016) at 12. The $800 imposed by
the court includes a $500 victim assessment fee, a $100 DNA (deoxyribonucleic acid)
collection fee, and a $200 clerk's filing fee.
Mr. Gleim appeals the sentence imposed on remand, arguing the State breached
the plea agreement and the court failed to recognize and strike a discretionary LFO.
ANALYSIS
Breach of plea agreement
Mr. Gleim argues the trial court abused its discretion 1 by denying the motion to
withdraw his guilty plea based on breach of the plea agreement. Because there was no
1 We review a trial court's denial of a motion to withdraw a plea for abuse of discretion. State v. Jamison, 105 Wn. App. 572, 589-90, 20 P.3d 1010 (2001).
5 No. 34577-7-III State v. Gleim
breach, we disagree.
Both the law of contracts and due process require prosecutors to abide by the terms
of their plea agreements in good faith. In re Pers. Restraint ofLord, 152 Wn.2d 182,
188-89, 94 P.3d 952 (2004). This duty applies both at an original sentencing hearing and
at resentencing. State v. Arko, 52 Wn. App. 130, 132, 758 P.2d 522 (1988). Thus, if a
plea agreement obliges the prosecutor to make a certain recommendation at sentencing,
the same recommendation generally must be made if the case is remanded for
resentencing after appeal. Id. at 135. However, during the period between initial
sentencing and resentencing, a prosecutor's obligations are different. If a trial court
imposes a sentence different from what was contemplated by a plea agreement, the
prosecutor may defend the sentence on appeal and argue against resentencing. Id. at 134.
The circumstances confronted by the prosecutor during Mr. Gleim's remand
proceedings were similar to those faced on appeal. Our prior opinion did not definitively
order resentencing. Instead, we permitted the trial court to choose between amending the
term of community custody and resentencing. Prior to the trial court's selection of
remedy, the prosecutor was free to argue against resentencing, just as had been true on
appeal. Because the trial court waited until the conclusion of the proceedings to
determine whether it would be resentencing Mr. Gleim in full or merely amending the
6 No. 34577-7-III State v. Gleim
term of community custody, the State's obligation to advance the terms of the plea
agreement never ripened.
Significantly, the prosecutor never said anything during the proceedings to
undermine the reasoning behind his initial sentencing recommendation of 36 months.
There was no statement of regret or suggestion that the court's initial sentence of 102
months was substantively appropriate. Had the prosecutor made such statements or
representations, the plea agreement may well have been undermined once the court opted
for resentencing. But because the prosecutor merely presented the trial court with its
remand options in a fairly neutral manner, the persuasive value of the plea agreement was
never undermined. The prosecutor's comments left no doubt that if the court opted to
conduct full resentencing, his recommendation would still be 36 months. We discern no
breach of the prosecutor's obligations. 2
Mr. Gleim complains the prosecutor misrepresented the terms of this court's
remand order by indicating the only issue before the court was modification of the
community custody term. While a misrepresentation to the court would be improper, it
would not violate the terms of the plea agreement. In any event, viewing the record as a
2 Because the prosecutor submitted proposed forms to the trial court prior to the court's selection of remedy, such paperwork did not undermine the prosecutor's obligations under the plea agreement.
7 No. 34577-7-III State v. Gleim
whole, there was no misrepresentation. During the second hearing on remand, the
prosecutor clearly articulated the two options before the court, as set forth above. The
fact that the prosecutor did not dwell on the option of resentencing did not constitute a
breach. To the contrary, because the prosecutor was entitled to argue in favor of finality
and against resentencing, the prosecutor acted within his discretion to emphasize the
court's option to amend Mr. Gleim's term of community custody in lieu of resentencing.
LFOs
Mr. Gleim argues the court failed to recognize a discretionary LFO, the $200
"Clerk's Filing Fee." CP at 59. Because the trial court stated it intended to waive all
discretionary fees, Mr. Gleim claims this fee should have been stricken. We disagree.
At Mr. Gleim's initial sentencing hearing, the trial court imposed $200 in "Court
costs." CP at 28. In our prior opinion, we noted the judgment did not specify whether
this $200 assessment was discretionary or whether it constituted a mandatory criminal
filing fee under RCW 36.18.020(2)(h). Gleim, slip op. at 11 n.4. In an apparent response
to this portion of our opinion, the judgment on remand identified the $200 assessment as a
"Clerk's Filing Fee." CP at 59. Although the amended judgment did not state as much,
clerk's fees are authorized under RCW 36.18.020. The only clerk's fee that may be
imposed in a criminal case is a mandatory fee under RCW 36. l 8.020(2)(h). Given this
8 No. 34577-7-111 State v. Gleim
context, the judgment makes sufficiently clear the court's intent to impose a
nondiscretionary fee. There was, therefore, nothing overlooked that requires further
action.
CONCLUSION
The sentence imposed on Mr. Gleim is affirmed in full. Mr. Gleim's request to
deny costs is granted. J
Pennell, J. WE CONCUR: