State Of Washington, V. Ryan Eugene Johnston

• Court: Court of Appeals of Washington
• Decided: August 2, 2021
• Docket: 81592-0
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

STATE OF WASHINGTON, No. 81592-0-I Respondent,

v. UNPUBLISHED OPINION RYAN EUGENE JOHNSTON,

Appellant.

PER CURIAM — Ryan Johnston was charged with assault in the first degree for an

attack on a sleeping homeless man. The parties entered into a plea agreement

whereby Johnston pleaded guilty to an amended charge of attempted assault in the first

degree and both parties agreed to recommend a low-end standard range sentence of

76.5 months in prison.

At the sentencing hearing, the State presented a video in which the detectives

and the victim’s social worker talk about what happened to the victim, the extent of his

severe injuries, and his inability to care for himself. The prosecutor then set out the

State’s low-end recommendation of 76.5 months in prison on the most serious charge.

The trial court directly asked the prosecutor, “And what was the police department’s

position on this?” The prosecutor answered, “I think the police department—the

Citations and pin cites are based on the Westlaw online version of the cited material. No. 81592-0-I/2

detective’s position is they are in disagreement with our recommendation.” The

sentencing court imposed a mid-range sentence of 88.5 months in prison, 12 months

above the agreed recommendation.

Johnston appealed, arguing that the State breached the plea agreement by

presenting the video and by answering the sentencing court’s question about law

enforcement’s position on the State’s recommendation.

The State does not agree with Johnston’s contention that it breached the plea

agreement by answering a direct question from the sentencing court. See State v.

Talley, 134 Wn.2d 176, 183, 949 P.2d 358 (1998) (a prosecutor is obligated “to act in

good faith, participate in the sentencing proceedings, [and] answer the court’s questions

candidly in accordance with RPC 3.3”). However, the State concedes that the video

played at sentencing constituted a breach of the plea agreement because, viewed

objectively and in light of the parties’ agreement to jointly recommend a low-end

sentence, the investigating officers’ statements in the video implicitly advocated for a

higher sentence. “A breach occurs when the State offers unsolicited information by way

of report, testimony, or argument that undercuts the State’s obligations under the plea

agreement.” State v. Carreno-Maldonado, 135 Wn. App. 77, 83, 143 P.3d 343 (2006).

The State asks this court to accept its concession and remand to the trial court

for the defendant to select an appropriate remedy.

We accept the State’s concession and remand to the trial court for further

proceedings consistent with this opinion.

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WE CONCUR: