State v. MacDonald

Opinion

This opinion was flied fa~ record

at9~~ Ronald R. Carpenter Supreme Court Clark

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) ) Respondent, ) No. 89912-6 ) v. ) En Bane ) RONALQ WAYNE MACDONALD, ) ) Filed APR 0 9 2015 Petitioner. ) )

WIGGINS, J.-Ronald Wayne MacDonald entered into a plea agreement for

second degree murder with the prosecutor in exchange for recommending a 5-year

suspended sentence with 16 months' confinement in King County jail, with credit for

time served. At sentencing, the investigating police officer, purportedly speaking on

behalf of the victim, advocated for a sentence contrary to the agreement. The trial court

gave MacDonald the maximum sentence, and the Court of Appeals affirmed.

We hold that the investigating officer was functioning as a substantial arm of the

prosecution and should not have been permitted to advocate against the plea bargain.

Therefore, the State breached the plea agreement by undercutting the agreed

sentencing recommendation. We reverse the Court of Appeals and remand with

instructions to permit MacDonald to either withdraw his guilty plea or seek specific

performance of the plea agreement. State v: MacDonald (Ronald Wayne) No. 89912-6

FACTS

In 1978, Arlene Roberts was found dead in her home. Her trailer had been

ransacked, her hands and ankles were bound with stockings, she had a garment tied

around her mouth, and a ligature made from a hairnet was around her neck. She was

80 years old. The cause of death was asphyxiation by strangulation, and the case was

listed as a homicide. The police collected several latent fingerprints from bank

statements and traveler's checks within her trailer but never identified a suspect. The

case went inactive.

In 2010, detective Scott Tompkins reviewed the case files and matched the

fingerprints to MacDonald, who was living at that time in Reno, Nevada. Tompkins noted

that MacDonald had numerous burglary arrests between 1978 and 1980 and that

MacDonald lived near Roberts at the time of her death. Tompkins flew to Nevada to

obtain a DNA (deoxyribonucleic acid) sample and fingerprints. He also interviewed

MacDonald and prepared him for extradition. Following this interview, the State charged

MacDonald with murder in the first degree.

After the trial began, the parties entered into plea negotiations. MacDonald

argued that DNA taken from the crime scene was exculpatory, that there were no

fingerprints tying him to the murder, and that the age of the case would create significant

problems for the State. The State agreed that the prosecutor would change the charge

from first degree felony murder to second degree manslaughter and recommend a five-

2 State v. MacDonald (Ronald Wayne) No. 89912-6

year suspended sentence in exchange for an Alford1 plea. MacDonald accepted the

plea agreement.

At sentencing, Deputy Prosecutor Kristin Richardson informed the court that

detective Tompkins wished to speak on behalf of the victim pursuant to RCW

9.94A.500. Though Tompkins had remained involved throughout the plea negotiations

and Richardson intended for Tompkins to sit at counsel's table pursuant to ER 615 in

order to assist her, Richardson asserted that she did not know what Tompkins wanted

to say. MacDonald objected, but the trial court permitted Tompkins to testify as a victim

advocate over MacDonald's objection.

Tompkins immediately asked the court to impose the maximum sentence. He

asked to present what happened to the victim and provided the court with a series of

marked photographs of the victim's body as police found her. Tompkins informed the

court that the medical examiner's report contained 18 paragraphs detailing her injuries

and then asserted that Roberts "died a horrific death."

Tompkins continued, attacking each of the points raised by MacDonald in favor

of the plea agreement. Tompkins argued that the DNA evidence was not exculpatory

and related several of MacDonald's unrecorded admissions to the court. He further

testified that, because of his 14 years' experience as a robbery-homicide officer, it was

his opinion that this was not a sophisticated crime and that "people like [MacDonald] in

1 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). "In an Alford plea, the defendant does not admit guilt but concedes that a jury would most likely convict him based on the strength of the State's evidence." State v. Scott, 150 Wn. App. 281, 294-95, 207 P.3d 495 (2009) (citing State v. Newton, 87 Wn.2d 363, 372, 552 P.2d 682 (1976)).

3 State v. MacDonald (Ronald Wayne) No. 89912-6

that age group are the people that kill elderly women." He then implored the court,

speaking as a cold case detective, to hold someone accountable for this crime.

The trial court imposed the maximum sentence, giving MacDonald 60 months in

prison with a minimum sentence of 55 months and credit for time served. MacDonald

informed the court that he was considering a motion to withdraw the plea based on a

violation of the plea agreement.

MacDonald timely moved to withdraw his plea. Because the trial court judge had

retired, the motion was transferred to the Court of Appeals. The Court of Appeals denied

this motion and affirmed MacDonald's conviction in an unpublished decision. State v. MacDonald, noted at 179 Wn. App. 1006, 2014 WL 231981. We granted review. 180

Wn.2d 1008, 325 P.3d 913 (2014).

ANALYSIS

We reverse the Court of Appeals and permit MacDonald to elect whether to

withdraw his guilty plea or to seek specific performance. We affirm our decision in State

v. Sanchez that investigating officers cannot make sentence recommendations contrary

to a plea agreement. 146 Wn.2d 339, 46 P.3d 774 (2002).

We also hold that the same due process concerns precluding an investigating

officer from undermining a plea agreement bar that officer from making unsolicited

remarks on a victim's behalf to the court at sentencing that are contrary to the plea

agreement. Washington's crime victims' rights laws do not permit the State to breach a

4 State v. MacDonald (Ronald Wayne) No. 89912-6

I. Standard of Review

We review constitutional issues, like questions of law, de novo. State v. Gresham, 173 Wn.2d 405, 419, 269 P.3d 207 (2012). A reviewing court applies an

objective standard to determine whether the State breached a plea agreement. State

v. Sledge, 133 Wn.2d 828, 843 n.7, 947 P.2d 1199 (1997).

Harmless error review does not apply when the State breaches a plea

agreement. State v. Carreno-Maldonado, 135 Wn. App. 77, 87-88, 143 P.3d 343 (2006)

(citing In re Pers. Restraint of James, 96 Wn.2d 847, 849-50,640 P.2d 18 (1982));

accord Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971 )).

Because the State's conduct in breaching the agreement eliminates the basis of that

bargain, the State cannot benefit from the bargain. Carreno-Maldonado, 135 Wn. App.

at 88.

II. Plea Agreements

A plea agreement is a contract between the State and the defendant. Sledge,

133 Wn.2d at 838. The State thus has a contractual duty of good faith, requiring that it

not undercut the terms of the agreement, either explicitly or implicitly, by conduct

evidencing intent to circumvent the terms of the plea agreement. /d. at 840; State v.

Jerde, 93 Wn. App. 774, 780, 970 P.2d 781, review denied, 138 Wn.2d 1002, 984 P.2d

1033 (1999). "Fairness is mandated to ensure public confidence in the administration

of our justice system." Sledge, 133 Wn.2d at 839.

In addition to contract principles binding the parties to the agreement,

constitutional due process "requires a prosecutor to adhere to the terms of the

agreement" by recommending the agreed upon sentence. /d. (plea agreements

5 State v. MacDonald (Ronald Wayne) No. 89912-6

concern fundamental rights of the accused and thus are more than simple common law

contracts). By pleading guilty to a crime, defendants waive significant rights. These

rights include the right to a jury trial, the right to confront accusers, the right to present

witnesses in his defense, the right to remain silent, and the right to have the charges

against him proved beyond a reasonable doubt. Santobel/o, 404 U.S. at 264 (Douglas,

J., concurring). However, in exchange for these waivers, the defendant receives the

benefits of the bargain. When the State breaches a plea agreement, it "undercuts the

basis for the waiver of constitutional rights implicit in the plea." State v. Tourtellotte, 88

Wn.2d 579, 584, 564 P.2d 799 (1977).

Ill. Investigating Officers

This court has held that an investigating officer (10) could not undermine the

prosecution's plea bargain. Sanchez, 146 Wn.2d at 370 (Madsen, J., dissenting), id. at

358-59 (Chambers, J., concurring/dissenting). Though neither party challenges this

rule, the Court of Appeals has frequently misidentified this holding. See State v. Lindahl,

114 Wn. App 1, 11-12, 56 P.3d 589 (2002) ("In Sanchez, the court found no breach of

a plea agreement in cases where ... an investigating officer argued at sentencing for

a longer sentence than that agreed to in the plea agreement"); Carreno-Maldonado,

135 Wn. App. at 84 (incorrectly citing Sanchez to support the proposition that "the State

does not breach the plea bargain when ... an investigating officer[] argue[s] for an

exceptional sentence"). Therefore, we expressly affirm the rule in Sanchez in order to

provide clarity.

We rely on Sanchez for the proper analysis to use when considering whether a

particular state officer can advocate against a plea bargain reached between the

6 State v. MacDonald (Ronald Wayne) No. 89912-6

prosecution and the defendant. 146 Wn.2d 339. Sanchez was a consolidated case

involving two appeals: the first appeal (petitioner Mark Harris) involved an alleged plea

breach by a community corrections officer (CCO), and the second (petitioner Librado

Sanchez) alleged a plea breach by an 10. /d. at 343. Harris alleged that his plea bargain

was breached when the ceo prepared a presentence report recommending an

exceptional sentence contrary to the prosecutor's standard range recommendation and

when the ceo spoke in support of that report at Harris' hearing. /d. at 344. Harris was charged with third degree rape of a child. /d. He entered into a plea agreement and

pleaded guilty to the lesser offense of communicating with a minor for immoral purposes

in violation of RCW 9.68A.090. /d. The standard range sentence for the offense was

22-29 months, and the prosecutor agreed to recommend 29 months. /d. The ceo assigned to Harris' case prepared a presentence report pursuant to former RCW

9.94A.110 (2000) (recodified as RCW 9.94A.500). /d. The presentence report

recommended an exceptional sentence of 60 months. /d. The court found the

aggravating factors suggested by the CCO's presentence report and imposed a

sentence of 60 months. !d.

Sanchez pleaded guilty to three counts of second degree child molestation. /d.

at 342-43. Pursuant to the plea agreement, the prosecutor would not make a

sentencing recommendation. /d. at 343. Prior to the sentencing, Dr. Jerry Miller

evaluated Sanchez and recommended a special sex offender sentencing alternative

(SSOSA), which would impose a partially suspended 75-month sentence. /d. This

recommendation was contained in the CCO's presentence report. /d. However, the

victim, the victim's parents, and the 10 made statements at the sentencing hearing.

7 State v. MacDonald (Ronald Wayne) No. 89912-6

The 10 argued against the SSOSA, arguing that Sanchez violated a position of trust,

that Sanchez lied to Dr. Miller in order to receive the SSOSA, and that Sanchez's acts

were "'as bad as if somebody drug someone in the bushes and violently raped them."'

/d. The court imposed a standard range sentence of 70 months' imprisonment, and

Sanchez appealed on the grounds that the IO's testimony undercut the prosecutor's

plea agreement. /d. at 343-46.

The Sanchez plurality opinion viewed the plea agreement as having been made

between the prosecutor and the defendant, not between the State and the defendant.

/d. at 348 ('"[T]he prosecutor and the defendant are the only parties to a plea

agreement."' (alteration in original) (quoting State v. Wakefield, 130 Wn.2d 464, 474,

925 P.2d 183 (1996))). From this premise, the plurality opinion rejected an agency

analysis and held that "whether a government employee other than the prosecutor is

bound by the agreement depends not on the employee's role vis-a-vis the prosecutor,

but on the employee's role vis-a-vis the sentencing court." /d. at 348-49.

The plurality's analysis considered the statutory role that a ceo and an 10 have

at sentencing under former RCW 9.94A.110. Sanchez, 146 Wn.2d at 349, 351 ('"The

court shall ... allow arguments from ... an investigative law enforcement officer as to

the sentence to be imposed" (first alteration in original) (quoting former RCW

9.94A.11 0(1 )). The plurality opinion concluded that this statutory authority specifically

authorized argument from an 10 about a sentence. /d. at 352. Further, the plurality

opinion concluded that there was no appearance of unfairness because the 10 in

8 State v: MacDonald (Ronald Wayne) No. 89912-6

Sanchez's case was neither a party to the plea agreement2 nor an employee of the

prosecutor's office. /d.

The plurality opinion concluded that Sanchez's 10 did not have a duty to abide

by the prosecutor's plea agreement. /d. The plurality opinion also held that a CCO acts

on behalf of the court rather than as an arm of the prosecutor and that the ceo in Harris' case was not bound by the terms of the plea agreement. /d. at 354.

In the Sanchez dissenting opinion, four justices acknowledged the statutory role

of lOs in a sentencing hearing and argued that "[b]asic agency principles and simple

fairness" require that both CCOs and lOs are bound to the terms of a prosecutor's plea

agreement. /d. at 359 (Madsen, J., dissenting). Because plea agreements are

contracts, the dissent considered the pivotal issue to be "whether lOs and CCOs are

agents of the state, or independent agents of the court." /d.

The dissent's analysis began by asserting that "[t]he authority of a Washington

prosecuting attorney to act as an agent of the state of Washington is well established."

/d. at 360. The dissent cites the state constitution and previous decisions recognizing

that prosecutors are agents of the State when prosecuting violations of state law. /d.

(citing Sledge, 133 Wn.2d at 839 n.6; Whatcom County v. State, 99 Wn. App. 237, 993

P.2d 273 (2000)).

Proceeding from the conclusion that prosecutors are agents of the State, the

dissent then addressed the statutory relationship between prosecutors and lOs in the

2 This point is distinguishable from MacDonald's case. Here, Tompkins (the 10) was heavily involved in the plea negotiations and copied on all correspondence related to the plea agreement. An agreement to enter a plea was reached only after Tompkins and the prosecutor discussed the issue at length.

9 State v. MacDonald (Ronald Wayne) No. 89912-6

context of a plea agreement in a criminal case. /d. at 360-61. Pointing out that '"[a]

prosecuting attorney is dependent upon law enforcement agencies to conduct the

necessary factual investigation which must precede the decision to prosecute,"' id. at

361 (quoting former RCW 9.94A.440(2)(b)(i) (2000), recodified as RCW 9.94A.411),

the dissent concluded that lOs must fully apprise the prosecution of their investigative

techniques and that the prosecutor may "'insist upon further investigation"' and may

'"specify what that investigation needs to include."' /d. (quoting former RCW

9.94A.440(2)(b)(i)). Based on these statutory duties that prosecutors have to direct the

activities of law enforcement, the dissent reasoned that lOs are agents of the

prosecution. 3 /d. at 361-62.

Having concluded that lOs are agents of the prosecution, the Sanchez dissent

would have held that lOs are bound by the State's plea agreements. /d. at 362. Thus,

the constitutional due process concerns that adhere when the prosecutor undercuts a

plea bargain apply when an agent of the prosecution undercuts that agreement. /d. at

367. The dissent then analyzed the language of former RCW 9.94A.11 0 in the context

of our jurisprudence limiting arguments that undermine plea agreements. /d. Notably,

the dissent observed that former RCW 9.94A.11 0 required both prosecutors and lOs

to make recommendations at a sentencing hearing but that it was undisputed that this

authorization did not permit prosecutors to undercut a plea bargain. /d. at 363.

3 The Sanchez dissent also concluded that CCOs are agents of the State and would have held that the CCO's recommendations in Harris undercut the prosecutor's plea bargain. 146 Wn.2d at 362-63 (Madsen, J., dissenting). However, only four justices agreed on this point and the status of CCOs is not relevant to the disposition of MacDonald's case.

10 State v. MacDonald (Ronald Wayne) No. 89912-6

The dissenting opinion concludes by noting that Florida and the federal courts

recognize the "inherent unfairness of allowing other state agents to undermine a

bargained-for plea." /d. at 368 (citing Lee v. State, 501 So. 2d 591, 593 (Fla. 1987)).

Recognizing that permitting Sanchez's 10 to undermine the plea agreement is "unfair,"

the dissent further opined that the IO's testimony renders the "prosecution's agreement

meaningless" and that it "will deter future plea agreements." /d. at 370. The dissent

would hold that lOs "are bound to prosecutorial plea agreements." /d.

A third opinion in Sanchez by Justice Chambers partially concurred and partially

dissented, agreeing with the plurality opinion that a ceo functions as an agent of the court when issuing his mandatory presentence report. /d. at 356 (Chambers, J.,

concurring/dissenting). However, Justice Chambers agreed with the dissent that

"[i]nvestigating officers are so integral to the prosecutorial effort that to permit one to

undercut a plea agreement would, in effect, countenance the State's breach of promise

in violation of Santobello." /d. at 358.

Though Justice Chambers agreed with the four dissenting justices that lOs are

bound by a plea agreement, he adopted the plurality opinion's analysis. He began by

acknowledging the significant rights that a defendant waives when he or she agrees to

plead guilty. Justice Chambers reminded the court that this waiver of rights obligates

the State to comply with any promises that it makes. /d. at 357-58 (citing Santobello,

404 U.S. at 262). He then analyzed the role of each state officer and concluded that

the 10 in Sanchez functioned as an investigating arm of the prosecution. /d. at 358.

11 State v. MacDonald (Ronald Wayne) No. 89912-6

Thus, five justices held that an 10 is an investigating arm of the prosecutor and

therefore may not undermine a plea agreement. This is the holding of the Sanchez

court, and we adhere to it today.

Following Sanchez, it is clear that determining whether an officer may advocate

against a plea bargain requires us to look at the role of the state officer. The critical

inquiry is whether the officer was acting in the role of assisting the court or whether the

officer was assisting the prosecutor. In Washington, the statutory relationship between

prosecutors and lOs binds lOs to plea agreements in a criminal case. /d. at 360-61

(Madsen, J., dissenting). In outlining the relationship between the 10 and the

prosecutor's office, the legislature created a relationship where '"[a] prosecuting

attorney is dependent upon law enforcement agencies to conduct the necessary factual

investigation which must precede the decision to prosecute."' /d. at 361 (Madsen, J.,

dissenting) (quoting former RCW 9.94A.440(2)(b)(i)). The statutory scheme enables

the prosecutor's office to direct the activities of law enforcement: lOs must fully apprise

the prosecution of their investigative techniques, the prosecutor may "'insist upon

further investigation,"' and the prosecutor may "'specify what that investigation needs

to include."' /d. (quoting former RCW 9.94A.440(2)(b)(i)). Based on these statutory

duties, we reaffirm the holding in Sanchez that lOs function as a substantial arm of the

prosecution.

Applying these principles to MacDonald, we hold that detective Tompkins was

acting in the role of substantially assisting the prosecution. Tompkins initiated the

investigation, he personally pursued the investigation, and his affidavit of probable

cause resulted in charges being filed against MacDonald. The prosecutor intended to

12 State v. MacDonald (Ronald Wayne) No. 89912-6

have Tompkins sit at counsel's table in order to assist her during the trial. Additionally,

as noted above, Tompkins was involved in the plea negotiations and copied on

correspondence related to the plea agreement. An agreement to enter .a plea was

reached only after Tomp~ins and the prosecutor discussed the issue at length. Based

on these facts, we conclude that Tompkins was fulfilling his statutory responsibilities

and acting as a substantial arm of the prosecution. Therefore, he is barred from

undermining the prosecutor's plea agreement: the constitutional due process concerns

that adhere when the prosecutor undercuts a plea bargain apply with equal force when

the prosecution undercuts that agreement by proxy. Accord id. at 359 (Chambers, J.,

concurring/dissenting); id. at 367 (Madsen, J., dissenting).

This approach is fair: defendants waive significant rights when they agree to

plead guilty. This waiver of rights obligates the State to comply with any promises that

it makes. /d. at 357 (Chambers, J., concurring/dissenting); accord Santobe/lo, 404 U.S.

at 262. An IO's testimony could render the "prosecution's agreement meaningless," and

that could "deter future plea agreements." Sanchez, 146 Wn.2d at 370 (Madsen, J.,

dissenting); see also Tourtelfotte, 88 Wn.2d at 584 ("If a defendant cannot rely upon an

agreement made and accepted in open court, the fairness of the entire criminal justice

system would be thrown into question."). Instead, Washington law recognizes that

"[p]rosecutors may not do indirectly through their investigating officers what they are

prohibited from doing directly." Sanchez, 146 Wn.2d at 359 (Chambers, J.,

concurring/dissenting).

13 State v. MacDonald (Ronald Wayne) No. 89912-6

IV. Crime Victims' Rights

Though it acknowledges the holding of Sanchez, the State argues that in the

absence of testimony at a sentencing hearing by a victim or victim's survivor, an 10

ought to be allowed to speak for the deceased in recognition of their rights to make a

statement as afforded to them under the law. We reject this argument because it

improperly seeks to elevate a victim's state's rights over an accused's due process

rights as conferred by both state and federal constitutions and is inconsistent with our

controlling case law.

Washington ensures that crime victims and survivors of victims have a significant

role in the criminal justice system through statutes and our state constitution. See, e.g.,

ch. 7.69 RCW; CONST. art. I, § 35 (amend. 84). The courts have an obligation to

vigorously protect these rights. RCW 7.69.010. However, these rights are not

considered in a vacuum; they must be considered together with a defendant's due

process rights. In the event that the crime victims' rights impede the defendant's due

process rights, the court must make every reasonable effort to harmonize theses

distinct rights and to give meaning to all parts of the Washington State Constitution.

State v. Gentry, 125 Wn.2d 570, 625, 888 P.2d 1105 (1995). To the extent that these

rights are irreconcilable, federal due process rights supersede rights arising under

Washington's statutes or constitution.

A. Washington State Statutes Do Not Permit an 10 Acting as a Victim's Advocate to Undermine a Plea Agreement Washington law recognizes and protects the rights of crime victims. In

recognition of "the severe and detrimental impact of crime on victims" and the

14 State v. MacDonald (Ronald Wayne) No. 89912-6

importance of victim and citizen cooperation with law enforcement agencies, the

Washington Legislature enacted the crime victims' rights statutes in 1981. RCW

7.69.01 0. This legislation provides that victims will be treated with dignity, respect, and

courtesy, and grants to victims and their survivors a "significant role in the criminal

justice system." /d. Amongst other rights, chapter 7.69 RCW provides that "[t]here shall

be a reasonable effort made to ensure that ... victims and survivors of victims [have

the right] to present a statement personally or by representation[] at the sentencing

hearing for felony convictions." RCW 7.69.030(14). Victims, survivors of victims, and

witnesses of crimes may also present a victim impact statement to the court. RCW

7.69.030(13).

The Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, also

acknowledges and provides for the rights of victims. RCW 9.94A.500 provides in

pertinent part that

[t]he court shall ... allow arguments from the prosecutor, the defense counsel, the offender, the victim, the survivor of the victim, or a representative of the victim or survivor, and an investigative law enforcement officer as to the sentence to be imposed.

The crime victims' rights statutes must be read in conjunction with precedent

protecting a defendant's due process rights in a plea bargain. We explicitly held in

Sanchez that statutory requirements for sentencing recommendations from parties do

not permit the State to undercut its plea agreement. 146 Wn.2d at 362-63 (Madsen, J.,

dissenting). Though RCW 9.94A.500 (formerly RCW 9.94A.11 0) grants statutory

authority to an 10 to make a sentencing recommendation, that authority does not permit

the 10 to undercut the prosecutor's plea agreement. /d. at 363 (Madsen, J., dissenting)

15 State v. MacDonald (Ronald Wayne) No. 89912-6

("Because a prosecutor cannot make an argument contrary to the plea agreement, the

statute cannot be intended to serve as authority for a law enforcement officer to make

a recommendation contrary to the prosecutor's.").

While Sanchez did not consider whether the investigative law enforcement

officer and the representative of the victim could be the same person, the principles of

that decision apply here with equal force. The statutory right to speak at a sentencing

hearing does not supersede constitutional precedent from this court and the United

States Supreme Court limiting arguments that undermine plea agreements. /d. at 367

(Madsen, J., dissenting). We now hold that RCW 9.94A.500 does not permit an 10

serving as a victim's advocate in court to make a recommendation that undermines the

The victims' rights statutes require only a "reasonable effort" be made to ensure

the specific rights of victims. RCW 7.69.030. Additionally, chapter 7.69 RCW does not

give the State the right to speak for victims when they have not requested the State's

assistance in communicating with the court. 4 Carreno-Maldonado, 135 Wn. App. at 86;

RCW 7.69.030(14) (requires a reasonable effort enabling "victims and survivors of

victims[] to present a statement personally or by representation[] at the sentencing

4 Indeed, the facts of this case do not suggest that Detective Tompkins had any right to speak as a victim's advocate at sentencing. The statute does not confer the right to third parties to advocate, unsolicited, on a victim's behalf, and article I, section 35 (amendment 84) authorizes a representative to speak for a deceased victim when identified by the prosecutor. There is no evidence that the prosecutor identified detective Tompkins to speak as the victim's representative; in fact, the prosecutor stated that she did not even know what Tompkins wanted to say. Importantly, the prosecutor could not have identified Tompkins to represent the victim in order to argue against the plea bargain: the prosecutor cannot explicitly or implicitly undermine a plea agreement, Sledge, 133 Wn.2d at 838, and the investigating officer cannot undermine a plea agreement when performing a role assigned by the prosecution. Sanchez, 146 Wn.2d at 359 (Chambers, J., concurring/dissenting).

16 State v. MacDonald (Ronald Wayne) No. 89912-6

hearing for felony convictions"). These reasonable limitations on the exercise of victims'

rights can be harmonized with a defendant's due process rights.

Contrary to the State's argument, these restrictions do not unfairly burden

victims' rights to have their voices heard at sentencing. Indeed, the restrictions make

sense within the statutory framework of chapter 9.94A RCW. The SRA permits lOs and

victim's advocates to make recommendations to the prosecutor while negotiating plea

agreements and charging orders. RCW 9.94A.411(2)(b)(i), (v). Tompkins had every

opportunity to present his sentencing recommendations to the prosecutor, and the

record suggests that he did so. He was copied on plea discussions between the State

and MacDonald, and he stated in court that he was "on board" with the need for a plea

agreement in this case. It can be inferred from the record that Tompkins advocated for

Roberts and for a stronger sentence in preparing the plea agreement with MacDonald.

These facts do not support a rule that would enable the 10 to also serve as a victim's

advocate at sentencing and to undermine the plea agreement that the 10 helped to

draft.

B. The Victims' Rights Amendment to the Washington Constitution Does Not Abrogate a Defendant's Due Process Rights

Article I, section 35 (amendment 84) of the Washington Constitution provides in

relevant part that in the event that the victim is deceased or unable to address the court,

"the prosecuting attorney may identify a representative to appear to exercise the

victim's rights." In interpreting this provision, this court has held that "[t]he legislature

and the voters of the State of Washington intended that a crime victim, or a victim's

17 State v. MacDonald (Ronald Wayne) No. 89912-6

representative, should be allowed to make a statement unless there is a direct

constitutional impediment." Gentry, 125 Wn.2d at 628-29.

We have not considered this question in the context of a plea bargain. We held

in Gentry that there is no constitutional impediment to using victim impact evidence

during capital sentencing proceedings. /d. at 633. We acknowledged the United States

Supreme Court's decision in Payne v. Tennessee in holding that Gentry's federal due

process rights were not violated by the introduction of victim impact evidence during

capital sentencing proceedings. /d. at 621 (citing Payne v. Tennessee, 501 U.S. 808,

111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991) (Eighth Amendment to the United States

Constitution is not a per se bar to victim impact evidence during capital sentencing

proceedings)). We analyzed the effect of the victims' rights amendment, article I,

section 35 (amendment 84), on the earlier enacted state due process rights of article I,

section 3. Rather than holding that the new amendment "overruled" the earlier

amendment, the court held that when the victims' rights laws conflict with a defendant's

state due process rights, the court must make every reasonable effort to harmonize

both rights. /d. at 625 (citing Port of Longview v. Taxpayers of Port of Longview, 85

Wn.2d 216, 232-33, 527 P.2d 263, 533 P.2d 128 (1974)).

Unlike the use of victim impact evidence during capital sentencing proceedings,

there are direct federal and state constitutional impediments to an IO's undermining a

plea agreement. Sanchez, 146 Wn.2d at 367 (Madsen, J., dissenting); Sledge, 133

Wn.2d at 839; Tourtellotte, 88 Wn.2d 579, 584; Santobello, 404 U.S. at 264 (Douglas,

J., concurring). Thus, our inquiry turns to whether Tompkins' remarks undermined the

plea agreement. We apply an objective standard to determine whether the State

18 State v. MacDonald (Ronald Wayne) No. 89912-6

breached a plea agreement; the motivations or justifications of the State are irrelevant.

Sledge, 133 Wn.2d at 843 n.7.

We hold that Tompkins' remarks breached the plea agreement. Tompkins asked.

the court to impose the maximum sentence, directly contrary to the plea agreement.

He asked to present what happened to the victim and provided the court with a series

of marked photographs of the victim's body as police found her. His unsolicited

testimony attacked each of the points in favor of the plea agreement, and he implored

the court, speaking as a cold case detective, to hold MacDonald accountable for this

crime. This advocacy undermined the State's plea agreement. 5

Our holding today is in accord with the Court of Appeals, Division Two's decision

in Carreno-Maldonado, 135 Wn. App. at 86-87. There, the court held that the State

breaches a plea agreement when a deputy prosecutor makes unsolicited remarks on a

victim's behalf that undermine the State's plea agreement and asserted that the

Washington State Constitution does not give the State the right to speak for victims

when they have decided not to speak for themselves and when they have not requested

the State's assistance in otherwise communicating with the court. /d. at 86. Indeed,

5 We respectfully disagree with the dissenting opinion. Without citation, the dissent concludes that a defendant's due process rights may be superseded by a deceased victim's rights "only under extremely narrow circumstances," dissent at 5, but does not provide any guidance or meaningful limitations on what those circumstances might be. The facts of this case suggest that under the dissent's reasoning, a defendant's federal due process rights must yield to a victim's state constitutional rights when (1) the victim is deceased, (2) the victim is not survived by any family members, (3) 32 years have passed, and (4) no one besides an investigating officer can give effect to the decedent's rights. The dissent's argument assumes that a deceased victim continues to have constitutional rights that merit suspending a defendant's due process rights but provides no guidance to trial courts for determining when to allow an investigating officer to make a recommendation to the sentencing court that is contrary to the terms of the plea bargain. In our view, under Santobello and Sanchez, an investigating officer acting as a substantial arm of the prosecution can never undermine a plea agreement.

19 State v. MacDonald (Ronald Wayne) No. 89912-6

Tompkins' comments here are similar to those in Carreno-Maldonado: unsolicited

advocacy from a substantial arm of the prosecution that is contrary to the State's plea

agreement. See id.

We reject the State's attempt to distinguish the Carreno-Maldonado holding with

policy arguments in favor of a narrow exception when there are no family members or

survivors to represent a victim's interests. This policy argument unfairly elevates the

rights of the victim over state and federally protected rights of the accused. Contrary to

the State's assertions, it is not valuing "form over substance" to require that the State

respect the constitutional due process rights of an accused.

CONCLUSION

We reverse the Court of Appeals. The proper remedy for the breach of a plea

agreement is to permit the defendant to elect to withdraw the guilty plea or to seek

specific performance. State v. Barber, 170 Wn.2d 854, 873, 248 P.3d 494 (2011 ).

Therefore, we remand and permit MacDonald to elect to either withdraw the guilty plea

or to seek specific performance of the plea agreement from the State.

20 State v. MacDonald (Ronald Wayne) No. 89912-6

WE CONCUR.

21 State of Washington v. Ronald Wayne MacDonald, No. 89912-6 Yu, J. (dissenting)

No. 89912-6 YU, J. (dissenting)-The majority opinion holds that a criminal defendant's

due process rights necessarily preclude an investigating officer from ever making a

sentencing recommendation contrary to a plea agreement as the representative of a

deceased victim. U.S. CONST. AMEND. V; WASH. CONST. art. I,§ 3. I respectfully

disagree. In the very narrow circumstances presented by the specific facts of this

case, the trial court properly exercised its discretion to give meaning to the victim's

rights without violating the defendant's. I would affirm the Court of Appeals, and

I respectfully dissent.

The guiding inquiry is one of "[b ]asic agency principles and simple

fairness." State v. Sanchez, 146 Wn.2d 339, 359, 46 P.3d 774 (2002) (Madsen, J.,

dissenting); see also id. at 356 (Chambers, J., concurring in part and dissenting in

part) (deciding the issues in light of"principles of fairness and agency"). In most

cases, those guidelines prevent an investigating officer from making sentence

recommendations that deviate from a plea agreement. Here, however, we are State of Washington v. Ronald Wayne MacDonald, No. 89912-6 Yu, J. (dissenting)

presented with an unusual situation, where the officer, Detective Scott Tompkins,

was the only practical victim representative because the crime was a homicide and

the victim had no estate or surviving family to speak on her behalf. In these

extremely narrow circumstances, the investigating officer should be allowed to

step out of his role as an agent for the prosecutor and into the role of victim

representative.

I. An investigating officer can, and in this case did, act as a victim representative, rather than an agent of the prosecution

The question of agency is "where resolution of this case should begin." Id.

at 360 (Madsen, J., dissenting); see also id. at 356 (Chambers, J., concurring in part

and dissenting in part) (noting the relevance of agency principles). In an agency

relationship, the principal maintains some level of direction and control over an

agent and the agent acts within the actual or apparent authority expressly or

impliedly granted by the principal. Wash. Imaging Servs., LLC v. Dep 't of

Revenue, 171 Wn.2d 548, 562, 252 P.3d 885 (2011) ("[T]here must be facts or

circumstances that 'establish that one person is acting at the instance of and in

some material degree under the direction and control of the other."' (quoting

Matsumura v. Eilert, 74 Wn.2d 362, 368-69, 444 P.2d 806 (1968))). The facts and

circumstances presented here show that Detective Tompkins was not acting as an

agent of the prosecutor when he addressed the sentencing court.

2 State of Washington v. Ronald Wayne MacDonald, No. 89912-6 Yu, J. (dissenting)

In most stages of a criminal action, the investigating officer is clearly an

agent of the prosecutor. The prosecutor must "ensure that a thorough factual

investigation has been conducted," RCW 9.94A.411(2)(b)(i), which includes

directing specific investigations that are necessary and overseeing the timeliness of

the investigation and the techniques used, id. at (i)-(iii). When an officer is

engaged in those investigative activities, he or she is acting as an agent of the

prosecutor. Sanchez, 146 Wn.2d at 357-58 (Chambers, J., concurring in part and

dissenting in part), 361-62 (Madsen, J., dissenting). When Detective Tompkins

spoke to the court at sentencing, however, he was not engaged in those activities.

Furthermore, the events that occurred at the sentencing hearing clearly show

that Detective Tompkins was not acting as a prosecutorial agent. The prosecutor

brought Detective Tompkins' desire to speak to the court's attention, but there is

no evidence the prosecutor asked or encouraged him to speak or had any influence

on what he said. 1 The prosecutor explicitly distinguished her sentencing

recommendation, which was consistent with the plea agreement, from anything

Detective Tompkins might say:

He has asked me to ask the court if he could speak. Arlene Roberts has no family. Detective Tompkins has -- I've made clear to him that I don't want to know what he's going to say. I have no idea what it will be. It doesn't do anything to affect my recommendation. My

1 Ifthe prosecutor had in fact appointed a victim representative or elicited testimony from one, the representative would be acting much more at the request and direction (that is, much more like an agent) of the prosecutor than Detective Tompkins did.

3 State of Washington v. Ronald Wayne MacDonald, No. 89912-6 Yu, J. (dissenting)

recommendation is still solidly for 16 months because that's what the agreement was. So with the court's permission, Detective Tompkins would like to speak.

Clerk's Papers (CP) at 191-92; cf State v. Sledge, 133 Wn.2d 828, 842-43, 947

P.2d 1199 (1998) (plea agreement breached where the prosecutor "insist[ed] upon

a hearing" and actively elicited testimony that served no purpose "other than to

vitiate and contradict the State's standard range recommendation").

The sentencing court explicitly allowed Detective Tompkins to speak solely

on behalf of the victim and not as an agent or representative of the prosecutor:

As I understand it, Detective Tompkins is here speaking with respect to the victim. In many cases, if not all criminal cases, particularly serious ones such as this, a victim advocate very frequently speaks to the court on behalf of the victim. There is no victim advocate speaking here today, and I think Detective Tompkins may take that role.

CP at 194; see also id. at 197 ("I want to make clear that I allowed Detective

Tompkins to speak insofar as he is speaking on behalf of the victim since there's

not a victim advocate here today and not so much as a comment on the nature of

the plea negotiations or the evidence as such."), 210 ("I want to make clear that, as

I stated before, I took Detective Tompkins' statements really as a substitution for

any victim advocate, and I don't believe that the court construed it in any way to be

other than that.").

The trial court's careful explanation of its decision and reasoning makes it

clear that trial court judges need no additional guidance from us on recognizing the

4 State of Washington v. Ronald Wayne MacDonald, No. 89912-6 Yu, J. (dissenting)

difference between acting as an investigative agent of the State and providing a

voice to a homicide victim at a sentencing hearing. Detective Tompkins was not

acting as an agent of the prosecution when he spoke at sentencing, but as a

representative of the victim. The prosecutor did not attempt to undercut or

circumvent the plea agreement.

II. It is only under extremely narrow circumstances that an investigating officer should be allowed to serve as a victim representative

While it is possible for an investigating officer to act as a representative for a

victim, whether he or she should be allowed to do so is another matter entirely.

Usually it will not be appropriate. In the extremely narrow circumstances

presented here, however, the only reasonable way to give effect to the victim's

constitutional rights was to allow Detective Tompkins to step out of his agency

relationship with the prosecutor and speak as a representative of the victim. 2 A

bright-line rule that the investigating officer can never speak on behalf of a victim

requires the defendant's rights to supplant the victim's and silences the voices of

those victims who are least able to speak for themselves.

The constitutional rights of the defendant and the victim must both be

considered. The defendant has the constitutional right to due process, which

includes fair proceedings and good faith on the part of the prosecutor in plea

2 Contrary to the assertions ofthe majority, "we do not check our common sense at the door," Diaz v. State, 175 Wn.2d 457, 474, 285 P.3d 873 (2012), and no citation is needed to exercise it.

5 State of Washington v. Ronald Wayne MacDonald, No. 89912-6 Yu, J. (dissenting)

bargaining. Sanchez, 146 Wn.2d at 357 (Chambers, J., concurring in part and

dissenting in part), 367 (Madsen, J., dissenting). Meanwhile, a crime victim has

the "basic and fundamental right[ ] ... to make a statement at sentencing." WASH.

CoNST. art. I, § 35. 3 This right cannot be minimized on the basis that the victim of

a brutal homicide is deceased. Instead, where the "victim is deceased ... the

prosecuting attorney may identify a representative to appear to exercise the

victim's rights. This provision shall not constitute a basis for error in favor of a

defendant in a criminal proceeding." Id. Wherever possible, these constitutional

rights must be harmonized to give effect to both. State v. Gentry, 125 Wn.2d 570,

624-25, 888 P.2d 1105 (1995).

If reasonable effort would or could identify anyone else to act as a victim

representative, the investigating officer should not fill that role. See RCW

7.69.030. When an investigating officer acts as a victim representative, there is

obvious potential for conflict, the officer's role must be carefully circumscribed,

and the likelihood of apparent or actual unfairness is significant. In Sanchez, five

justices correctly determined that it was unfair in the circumstances presented to

allow the investigating officer to speak and to make a sentencing recommendation

3 The unique position of a crime victim is also codified in our statutes. The victim's rights must be "honored and protected by law enforcement agencies, prosecutors, and judges in a manner no less vigorous than the protections afforded criminal defendants." RCW 7.69.010; see also RCW 7.69.030(14); RCW 9.94A.500(1).

6 State of Washington v. Ronald Wayne MacDonald, No. 89912-6 Yu, J. (dissenting)

that was inconsistent with the plea agreement. 146 Wn.2d at 358-59 (Chambers,

J., concurring in part and dissenting in part), 359 (Madsen, J., dissenting).

However, in that case, the victim and her parents could and did speak at

sentencing. Id. at 343 (Bridge, J., lead opinion). Sanchez did not discuss the

victim's constitutional rights as applied to the unusual context of this case.

Here, the victim was killed at the age of 80, over 30 years before anyone

was charged with her murder. There was nobody available other than Detective

Tompkins to either exercise or waive the victim's rights. 4 This is not a situation

where the victim or a representative actually spoke, see id., or could have spoken

but chose not to, see State v. Carreno-Maldonado, 135 Wn. App. 77, 80, 86, 143

P.3d 343 (2006). With no family, friends, or estate to speak or request a victim

representative, Detective Tompkins was the only person familiar with the horrific

reality of the victim's death. Without Detective Tompkins, the victim would have

had no one to speak on her behalf.

The prosecutor recommended the sentence in the plea agreement. Detective

Tompkins acted as a victim representative and not as an agent of the prosecutor,

and there was no one else who could have spoken on the victim's behalf. The trial

4 The right to speak at sentencing belongs to the victim, not the victim's representative. See WASH. CONST. art. I,§ 35 ("[T]he prosecuting attorney may identify a representative to appear to exercise the victim's rights." (emphasis added)). Detective Tompkins' rights, or lack thereof, are not at issue.

7 State of Washington v. Ronald Wayne MacDonald, No. 89912-6 Yu, J. (dissenting)

court properly exercised its discretion by allowing the victim's voice to be heard

through Detective Tompkins, and the plea agreement was not breached.

III. Specific performance in this context is a very limited remedy

Finally, I note that if the plea agreement had been breached, the defendant's

remedy would be choosing between withdrawing his plea or specific performance

of the plea agreement. State v. Barber, 170 Wn.2d 854, 855, 248 P.3d 494 (2011).

Specific performance where a plea agreement is breached (rather than based on

mutual mistake) means only that the defendant is entitled to a new sentencing

hearing before a different judge where the prosecutor makes the sentencing

recommendation in the plea agreement. !d. at 859-60. The sentencing judge

would still not be bound by the recommended sentence. State v. Harrison, 148

Wn.2d 550, 557, 559, 61 P.3d 1104 (2003).

In the extremely narrow circumstance where the victim is deceased and has

no estate or surviving family or any other representative, I would hold that it is

permissible for an investigating officer to fill that role. Here, the prosecutor did

nothing to undermine the State's agreed plea recommendation and the sentencing

court properly exercised its discretion in allowing Detective Tompkins to address

the court. I respectfully dissent.

8 State of Washington v. Ronald Wayne MacDonald, No. 89912-6 Yu, J. (dissenting)