FILED
APR 18,2013
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 30475-2-111 ) (consolidated with Respondent, ) No. 30477-9-111) ) v. ) ) TONY ALLEN BARCLAY, ) UNPUBLISHED OPINION ) Appellant. )
KORSMO, C.J. - Tony Barclay pleaded guilty on the same day to second degree
assault and second degree burglary that had been charged in separate files. The court did
not follow the sentence recommendations of the parties and Mr. Barclay appealed to this
court. We affirm the convictions, but remand for resentencing.
FACTS
Mr. Barclay was charged under Walla Walla County Superior Court No. 11-1
00326-1 with second degree burglary and third degree theft. He was charged with second
degree assault in No. 11-1-00335-1. He entered into a universal plea agreement with the
two prosecutors on his cases. It called for him to plead guilty on the two felony counts,
with the prosecution dismissing the third degree theft and another charge pending in Nos. 30475-2-111, 30477-9-111 State v. Barclay
district court, and the parties to jointly recommend concurrent sentences of 51 months on
the burglary (bottom of the standard range) and 69 months on the assault charge (middle
of range). The criminal history showed that Mr. Barclay had 9 prior adult felony
convictions, 2 juvenile felony convictions, and 14 prior adult misdemeanor convictions.
The trial court accepted both guilty pleas at a hearing on December 8, 2011. The
two cases then proceeded to ajoint sentencing hearing on December 19,2011. Mr.
Barclay told the court that he had not expected to be in this situation but he had been
having problems with his medications. Defense counsel then presented the joint
sentencing recommendation and the prosecutor on the assault count noted that there was
a period of community custody. The other prosecutor then asked the court to impose 51
months on the burglary count, but discounted the suggestion that defendant's medication
had been involved:
The State is recommending 51 months on that charge. It does appear that when both Mr. Barclay and his co-defendant were stopped, their car seemed to be pretty well outfitted to be doing exactly what they were doing; stealing wire from places that were either not watched very well or sort of agricultural areas that don't have anybody around during the day. So for him to blame it on his meds, I can see perhaps for the assault, but not so much here. There was a lot of planning involved here and especially to rig out their car so they could run a porch light off of it and that type of thing, had burglar tools in the car.
Report of Proceedings (Dec. 19,2011) (RP) at 3-4.
Nos. 30475-2-III, 30477-9-III State v. Barclay
The court then imposed a sentence of 60 months on the burglary count, explaining
that the sentence was appropriate in light of the defendant's criminal history. RP at 5.
The court made no reference to the assault count when imposing sentence. 1 The court
asked the jail captain for information about any credit for time served, and then granted
credit on the burglary count in the amount stated by the captain.
The court then turned to the assault charge and imposed a high end sentence of 84
months, stating that it was appropriate in light of the defendant's criminal history and the
fact that the crime involved domestic violence. RP at 7. The court again asked the jail
captain about credit for time served. The captain responded that it would be 56 days if
the offenses were concurrent. The court responded that the charges would be consecutive
and that no credit for time served would be granted. The judgment and sentence form
acknowledges the burglary as a current offense and reflects that the sentence for assault
would be served consecutively to the sentence for the burglary conviction.
Mr. Barclay then timely appealed to this court.
1 The judgment and sentence form also makes no reference to the assault conviction, and that offense is not listed as a current offense.
3 Nos. 30475-2-111,30477-9-111 State v. Barclay
ANALYSIS
The appeal presents several issues, but we need only address two in light of our
disposition. 2 We first consider Mr. Barclay's argument that the prosecutor undercut the
plea agreement by her comment before turning to his argument that the court erred by
imposing consecutive sentence~.
Plea Recommendation
Mr. Barclay first argues that the prosecutor breached the plea agreement by
undercutting the recommendation with her remarks concerning the planning involved in
the burglary. We disagree with his contention.
A plea agreement is a contract and the parties are required to live up to their
respective obligations under the contract. State v. Talley, 134 Wn.2d 176, 182-83,949
P.2d 358 (1998). A prosecutor is required to make her sentence recommendation,
although she need not do so enthusiastically. Id. at 183. One method by which a
prosecutor breaches a plea agreement is by undercutting her sentence recommendation.
E.g., State v. Xaviar, 117 Wn. App. 196,200-02,69 PJd 901 (2003) (prosecutor
breached agreement by highlighting aggravating factors and referring to defendant as
2 The other challenges involve findings or conditions that might or might not be imposed at resentencing, so it is appropriate to leave those matters to that proceeding when the parties can make a record concerning them.
Nos. 30475-2-III, 30477-9-II1 State v. Barclay
prolific child molester); State v. Jerde, 93 Wn. App. 774, 777-78, 970 P.2d 781 (1999)
(prosecutor emphasized aggravating factors when recommending midrange sentence),
The prosecutor did not undercut her sentence recommendation in this case. In
context, she was simply responding to the defendant's personal statement about his
medications and clarified for the court that it was unlikely they had any role in the
burglary offense, although they may have played a role in the assault. .We do not believe
a prosecutor undercuts her plea agreement by responding to a defense argument that
might mislead the court, even where the information might not be strictly necessary to
support the prosecutor's own recommendation. 3
We also note that the defense did not object to the comment. Although it is not
necessary to object in order to preserve a breach of plea agreement argument, the absence
of a contemporaneous objection suggests that the parties did not see the statement as a
breach of the agreement.
On the whole, it is clear that there was no breach of the plea agreement.
Accordingly, the two convictions are affirmed.
3 Interestingly, the court entered a chemical dependency finding on the assault charge, but not on the burglary charge. The court apparently understood this argument to be directed to that issue.
Ordering ofSentences
Mr. Barclay does correctly argue that there is a problem with the order of the
sentences. Although the prosecutor contends that they are to be served concurrently, we
agree with Mr. Barclay's argument that the court did impose consecutive sentences
without stating a basis for doing so.
Sentences imposed on the same day are classified as "'other current offenses.'"
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FILED
APR 18,2013
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 30475-2-111 ) (consolidated with Respondent, ) No. 30477-9-111) ) v. ) ) TONY ALLEN BARCLAY, ) UNPUBLISHED OPINION ) Appellant. )
KORSMO, C.J. - Tony Barclay pleaded guilty on the same day to second degree
assault and second degree burglary that had been charged in separate files. The court did
not follow the sentence recommendations of the parties and Mr. Barclay appealed to this
court. We affirm the convictions, but remand for resentencing.
FACTS
Mr. Barclay was charged under Walla Walla County Superior Court No. 11-1
00326-1 with second degree burglary and third degree theft. He was charged with second
degree assault in No. 11-1-00335-1. He entered into a universal plea agreement with the
two prosecutors on his cases. It called for him to plead guilty on the two felony counts,
with the prosecution dismissing the third degree theft and another charge pending in Nos. 30475-2-111, 30477-9-111 State v. Barclay
district court, and the parties to jointly recommend concurrent sentences of 51 months on
the burglary (bottom of the standard range) and 69 months on the assault charge (middle
of range). The criminal history showed that Mr. Barclay had 9 prior adult felony
convictions, 2 juvenile felony convictions, and 14 prior adult misdemeanor convictions.
The trial court accepted both guilty pleas at a hearing on December 8, 2011. The
two cases then proceeded to ajoint sentencing hearing on December 19,2011. Mr.
Barclay told the court that he had not expected to be in this situation but he had been
having problems with his medications. Defense counsel then presented the joint
sentencing recommendation and the prosecutor on the assault count noted that there was
a period of community custody. The other prosecutor then asked the court to impose 51
months on the burglary count, but discounted the suggestion that defendant's medication
had been involved:
The State is recommending 51 months on that charge. It does appear that when both Mr. Barclay and his co-defendant were stopped, their car seemed to be pretty well outfitted to be doing exactly what they were doing; stealing wire from places that were either not watched very well or sort of agricultural areas that don't have anybody around during the day. So for him to blame it on his meds, I can see perhaps for the assault, but not so much here. There was a lot of planning involved here and especially to rig out their car so they could run a porch light off of it and that type of thing, had burglar tools in the car.
Report of Proceedings (Dec. 19,2011) (RP) at 3-4.
Nos. 30475-2-III, 30477-9-III State v. Barclay
The court then imposed a sentence of 60 months on the burglary count, explaining
that the sentence was appropriate in light of the defendant's criminal history. RP at 5.
The court made no reference to the assault count when imposing sentence. 1 The court
asked the jail captain for information about any credit for time served, and then granted
credit on the burglary count in the amount stated by the captain.
The court then turned to the assault charge and imposed a high end sentence of 84
months, stating that it was appropriate in light of the defendant's criminal history and the
fact that the crime involved domestic violence. RP at 7. The court again asked the jail
captain about credit for time served. The captain responded that it would be 56 days if
the offenses were concurrent. The court responded that the charges would be consecutive
and that no credit for time served would be granted. The judgment and sentence form
acknowledges the burglary as a current offense and reflects that the sentence for assault
would be served consecutively to the sentence for the burglary conviction.
Mr. Barclay then timely appealed to this court.
1 The judgment and sentence form also makes no reference to the assault conviction, and that offense is not listed as a current offense.
3 Nos. 30475-2-111,30477-9-111 State v. Barclay
ANALYSIS
The appeal presents several issues, but we need only address two in light of our
disposition. 2 We first consider Mr. Barclay's argument that the prosecutor undercut the
plea agreement by her comment before turning to his argument that the court erred by
imposing consecutive sentence~.
Plea Recommendation
Mr. Barclay first argues that the prosecutor breached the plea agreement by
undercutting the recommendation with her remarks concerning the planning involved in
the burglary. We disagree with his contention.
A plea agreement is a contract and the parties are required to live up to their
respective obligations under the contract. State v. Talley, 134 Wn.2d 176, 182-83,949
P.2d 358 (1998). A prosecutor is required to make her sentence recommendation,
although she need not do so enthusiastically. Id. at 183. One method by which a
prosecutor breaches a plea agreement is by undercutting her sentence recommendation.
E.g., State v. Xaviar, 117 Wn. App. 196,200-02,69 PJd 901 (2003) (prosecutor
breached agreement by highlighting aggravating factors and referring to defendant as
2 The other challenges involve findings or conditions that might or might not be imposed at resentencing, so it is appropriate to leave those matters to that proceeding when the parties can make a record concerning them.
Nos. 30475-2-III, 30477-9-II1 State v. Barclay
prolific child molester); State v. Jerde, 93 Wn. App. 774, 777-78, 970 P.2d 781 (1999)
(prosecutor emphasized aggravating factors when recommending midrange sentence),
The prosecutor did not undercut her sentence recommendation in this case. In
context, she was simply responding to the defendant's personal statement about his
medications and clarified for the court that it was unlikely they had any role in the
burglary offense, although they may have played a role in the assault. .We do not believe
a prosecutor undercuts her plea agreement by responding to a defense argument that
might mislead the court, even where the information might not be strictly necessary to
support the prosecutor's own recommendation. 3
We also note that the defense did not object to the comment. Although it is not
necessary to object in order to preserve a breach of plea agreement argument, the absence
of a contemporaneous objection suggests that the parties did not see the statement as a
breach of the agreement.
On the whole, it is clear that there was no breach of the plea agreement.
Accordingly, the two convictions are affirmed.
3 Interestingly, the court entered a chemical dependency finding on the assault charge, but not on the burglary charge. The court apparently understood this argument to be directed to that issue.
Ordering ofSentences
Mr. Barclay does correctly argue that there is a problem with the order of the
sentences. Although the prosecutor contends that they are to be served concurrently, we
agree with Mr. Barclay's argument that the court did impose consecutive sentences
without stating a basis for doing so.
Sentences imposed on the same day are classified as "'other current offenses.'"
RCW 9.94A.525(1). Sentences involving current offenses must be served concurrently
unless the charges involve serious violent offenses, which normally are served
consecutively. RCW 9.94A.589(1)(a), (b). However, the ordering of sentences under
these provisions can be altered when a basis for an exceptional sentence exists. RCW
9.94A.535; In re Pers. Restraint ofMulholland, 161 Wn.2d 322, 166 P.3d 677 (2007);
State v. Smith, 123 Wn.2d 51,864 P.2d 1371 (1993), overruled on other grounds by State
v. Hughes, 154 Wn.2d 118, 110 P.3d 192 (2005).
Neither second degree burglary nor second degree assault is a serious violent
offense. RCW 9.94A.030(44). Thus, the trial court was required by the terms ofRCW
9.94A.589(l)(a) to treat each offense as another current offense and impose concurrent
terms. However, on the burglary charge the court did not mention the assault count or
otherwise treat it as a current offense in either the scoring of the burglary charge or the
Nos. 30475-2-111, 30477-9-111 State v. Barclay
ordering of that sentence. Instead, the court imposed sentence on the burglary count as if
the assault conviction did not exist.
The court did the opposite on the assault sentencing. It did note the burglary as
another current offense and directed that the assault sentence be served consecutively to
the burglary sentence. It did not declare an exceptional sentence and did not enter any
findings in support of an exceptional sentence as required by RCW 9.94A.535. While it
is possible that the court may have imposed an exceptional sentence due to the
defendant's high offender score or his extensive misdemeanor4 history, it does not ~ppear
to have done so since it indicated that the criminal history was a reason for imposing
higher standard range sentences than those recommended by the parties.
The trial court could not have imposed consecutive sentences under these facts
without declaring an exceptional sentence. 5 Since it does not appear to have done so, we
reverse the sentences and remand for a new sentencing proceeding.
Remanded for resentencing.
4 See RCW 9.94A.535(2)(b), (c). 5 A court has the power to run a sentence concurrently or consecutively to an existing sentence. RCW 9.94A.589(3). However, that provision is not applicable to offenses that are sentenced on the same day. RCW 9.94A.525(1).
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Korsmo, C.J. WE CONCUR:
Brown, J.