State v. Barber

217 P.3d 346, 152 Wash. App. 223
Court of Appeals of Washington·Decided July 21, 2009·No. No. 37989-9-II·Published·Cited by 7 cases

Opinion

Bridgewater, J.

¶1 Danny Joe Barber Jr. appeals the trial court’s order modifying his judgment and sentence to add a term of community custody not included in his original judgment and sentence. Concluding that the trial court had the authority to impose the term of community custody, despite the agreement between the State and Barber to ask the court not to impose community custody, we affirm the trial court.1

¶2 On November 16, 2007, the State charged Barber by amended information with one count of felony driving under the influence of intoxicants (felony DUI). Barber entered into a plea agreement whereby he agreed to plead guilty and the State agreed to recommend 51 months of confinement and no community custody.2

¶3 When accepting Barber’s plea, the trial court asked if community custody was required for Barber’s offense. Barber’s counsel replied, “I don’t believe so, Your Honor. That is surprising to me as well.” Report of Proceedings (Nov. 16, 2007) at 4. The State did not respond. The trial court informed Barber that it was not bound by the plea agreement, accepted Barber’s plea, and sentenced him to 51 months of confinement, a standard range sentence. The trial court did not impose a term of community custody.

¶4 In April 2008, the Department of Corrections (DOC) notified the trial court that under RCW 9.94A.715(1), a mandatory term of 9 to 18 months of community custody applied to Barber’s crime of felony DUI. It moved to modify Barber’s judgment and sentence to add that term of com[226] munity custody. The State and Barber agreed that Barber had the right to either withdraw his guilty plea or seek specific performance of the plea agreement. Barber chose specific performance. The State stated that while it was bound by the plea agreement, the trial court was not.

¶5 At a May 23, 2008, hearing, the State recommended the trial court accept the plea agreement of 51 months of confinement but no community custody. The trial court again stated that it was not bound by the plea agreement and modified Barber’s judgment and sentence to add a term of 9 to 18 months of community custody. Barber appeals.

¶6 Barber argues because he was not informed of a direct consequence of his plea, that a term of community custody was required for his crime, he did not knowingly and intelligently plead guilty and was entitled to a remedy. He contends that when he elected the remedy of specific performance, the trial court was bound by the plea agreement between the State and Barber. Because that plea agreement recommended no community custody, he contends the trial court erred in imposing the term of community custody.

¶7 A defendant must be informed of all direct consequences of pleading guilty, including mandatory community custody. State v. Turley, 149 Wn.2d 395, 398-99, 69 P.3d 338 (2003). Failure to inform a defendant that he will be subject to mandatory community custody if he pleads guilty renders a plea invalid. Turley, 149 Wn.2d at 398-99. Once a plea is invalid, the defendant has the initial choice of specific performance or withdrawing his plea. Turley, 149 Wn.2d at 399 (citing State v. Miller, 110 Wn.2d 528, 536, 756 P.2d 122 (1988)).

¶8 The State and Barber agree that he was not informed that the crime of felony DUI required the trial court to impose a term of community custody and thus he was not informed of a direct consequence of his plea. They also agree that Barber had his choice of remedy and that he chose specific performance. But they dispute the meaning of “specific performance.”

[227] ¶9 Barber asserts that specific performance means that the trial court must impose the sentence the parties agreed upon in the plea agreement. Barber therefore argues that he was not given specific performance because the trial court did not adhere to the plea agreement. The State responds that specific performance means that it must comply with the plea agreement, by making the agreed recommendation at resentencing, but that the trial court is not required to impose the sentence agreed upon in the plea agreement. The State therefore responds that because it recommended the sentence agreed upon in the plea agreement, Barber received his requested remedy of specific performance.

¶10 Specific performance of a plea bargain requires only that the prosecutor recommend what he or she agreed to recommend. In re Pers. Restraint of Powell, 117 Wn.2d 175, 199, 814 P.2d 635 (1991). The trial court is not bound by any recommendations contained in the plea agreement. State v. Harrison, 148 Wn.2d 550, 557, 61 P.3d 1104 (2003); State v. Henderson, 99 Wn. App. 369, 376, 993 P.2d 928 (2000) (citing former RCW 9.94A.090(2) (2000), recodified as RCW 9.94A.431(2) by Laws of 2001, ch. 10, § 6 (sentencing judge is not bound by any recommendations contained in a plea agreement)). Specific performance entitles Barber only to the State’s recommendation, not to the sentence he and the State agreed upon. Harrison, 148 Wn.2d at 557; Henderson, 99 Wn. App. at 376-77. Because the State honored the plea agreement and recommended 51 months of confinement and no community custody, Barber received specific performance.

¶11 Barber cites several cases claiming that they stand for the proposition that a remedy of specific performance binds the trial court to the plea agreement. United States v. Holman, 728 F.2d 809 (6th Cir.), cert. denied, 469 U.S. 983 (1984); Banks v. State, 56 Md. App. 38, 466 A.2d 69 (1983); In re Pers. Restraint of Isadore, 151 Wn.2d 294, 88 P.3d 390 (2004); Turley, 149 Wn.2d at 399; State v. Ross, 129 Wn.2d 279, 916 P.2d 405 (1996); State v. Walsh, 143 Wn.2d 1, 17 [228] P.3d 591 (2001); State v. Schaupp, 111 Wn.2d 34, 757 P.2d 970 (1988); Miller, 110 Wn.2d 528; State v. Tourtellotte, 88 Wn.2d 579, 564 P.2d 799 (1977). None of these cases provides a foundation for Barber’s argument.

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State v. Barber, 217 P.3d 346, 152 Wash. App. 223 (Wash. Ct. App. 2009).

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