State v. Sanchez

146 Wash. 2d 339

• Court: Washington Supreme Court
• Decided: May 9, 2002
• Docket: Nos. 70331-1; 70442-2
• Status: Published

Opinions

Bridge, J.

— We decide whether, in each of these consolidated cases, the petitioner should be permitted to withdraw his plea of guilty because he entered it in exchange for a promise from the prosecutor to recommend a particular sentence to the sentencing judge. At the sentencing hearing, a person other than the prosecutor recommended a longer sentence than had been agreed to in the plea agreement. We hold that since neither of these people, Sanchez’s investigating officer (IO) nor Harris’s community corrections officer (CCO), was a party to the plea agreement, no breach of the plea agreement occurred. The Court of Appeals is affirmed in both cases.

FACTS

Sanchez

In 1991, Librado Sanchez, who was 21 years old at the time, served as youth pastor to the church attended by 12-year-old CG and her family. In February or March of 1991, Sanchez kissed CG after they attended a movie together. For about eight months, the sexual contacts escalated, first to masturbation and oral sex, and eventually to two instances of penile-vaginal intercourse. The relationship terminated after CG’s father saw Sanchez kissing her. CG disclosed the sexual contacts to her parents when she was 16, but did not report them to the police until October 10, 1997, when she was 19. In January 1998, Sanchez was arrested and ultimately charged. He then agreed to plead guilty to three counts of child molestation in the second degree and entered pleas accordingly. Pursuant to the plea agreement, the prosecutor agreed to make no sentencing recommendation at the sentencing hearing.

Prior to sentencing, Dr. Jerry Miller evaluated Sanchez for a Special Sex Offender Sentencing Alternative (SSOSA). Dr. Miller diagnosed Sanchez as suffering from sexual arousal to children, referring to a pattern of sexual contacts with younger children beginning when Sanchez was seven years old. Dr. Miller recommended that the judge impose a SSOSA sentence, stating his opinion that Sanchez would be amenable to treatment and was at a low risk to reoffend. Denise Hollenbeck, the CCO from the Department of Corrections, prepared a presentence report recommending a 75-month sentence, to be partially suspended under a SSOSA.

At the sentencing hearing, the prosecutor made no sentencing recommendation. He then advised the judge that CG, her parents, and Sergeant Dave Ruffin, the 10, wished to make statements to the court. The victim and her parents argued against a SSOSA on the grounds that the child had been severely traumatized, Sanchez had violated a position of trust to commit the crime, and indications of deceit in the report suggested a likelihood of reoffending. Sergeant Ruffin also argued against a SSOSA. In his opinion, Sanchez’s acts “violated everything, the trust and what religion stood for,” and were “as bad as if somebody drug someone in the bushes and violently raped them.”¹ Ruffin stated his belief that Sanchez had lied to Dr. Miller to get a SSOSA recommendation, and said that the judge should not give a SSOSA sentence. The judge then imposed a sentence, within the standard range, of 70 months in prison, stating that he did not believe a SSOSA was appropriate absent a perversion. The Court of Appeals affirmed.

Harris

Between October and December 1997, Mark Harris, who was in his mid-forties, performed oral sex on his 14-year-old nephew BJ on three or four different occasions. In December 1997, when BJ’s parents became suspicious, they broke off the relationship between Mark and BJ. A year later, BJ informed his mother of what had happened. Harris was arrested on January 21,1999. He was initially charged with third degree rape of a child. On May 13, 1999, as a result of a plea agreement, he entered a plea of guilty to an amended charge of communicating with a minor for immoral purposes, contrary to RCW 9.68A.090. The prosecutor agreed to recommend a 29-month sentence, which was at the high end of the standard range. The standard range sentence was 22 to 29 months.

Pursuant to the plea agreement, the prosecutor recommended a 29-month sentence at the sentencing hearing. The CCO recommended an exceptional sentence of 60 months in his presentence report and spoke in support of that recommendation at the sentencing hearing. The court found the aggravating circumstances suggested by the CCO applicable, and sentenced Harris to 60 months. The Court of Appeals affirmed.

Procedural Issues

Initially we must decide whether either petitioner may appeal his sentence since neither raised any objection to his sentence to the trial court. Next, we determine whether Sanchez may appeal his sentence, a sentence within the standard sentencing range.

The State asserts that unless a defendant moves to withdraw his plea or asks the court to reconsider his sentence, he cannot complain on appeal that the State failed to abide by the agreement. State v. Giebler, 22 Wn. App. 640, 642-43, 591 P.2d 465 (1979). The petitioners counter that failure to adhere to a plea agreement involves a manifest violation of a constitutional right, which the defendant may raise for the first time on appeal. RAP 2.5(a)(3); State v. Scott, 110 Wn.2d 682, 688, 757 P.2d 492 (1988).

In Giebler, the prosecutor initially agreed as part of a plea bargain to recommend eight months in jail followed by probation. Giebler, 22 Wn. App. at 642. At sentencing, the prosecutor recommended that the defendant be “sentenced to the Department of Institutions,” and said he could not recommend a deferred sentence because the defendant had committed further offenses in the interim. The defendant failed to object. Id. Under those facts, Division One of the Court of Appeals held that the defendant had lost his right to raise the issue. Id. at 642-43.

Prior to Giebler, the United States Supreme Court had held that due process requires a prosecutor to adhere to the terms of a plea agreement. Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971). Similarly, this court had held that 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). Subsequent cases have attempted to reconcile Giebler with these cases by narrowing its holding to the specific facts of the case. See, e.g., State v. Van Buren, 101 Wn. App. 206, 2 P.3d 991 (distinguishing Giebler on the grounds that the prosecutor may have been justified in changing his recommendation because of the defendant’s further offenses, and pointing out that the case did not address RAP 2.5(a)(3) issues), review denied, 142 Wn.2d 1015 (2000). See also State v. Walsh, 143 Wn.2d. 1, 17 P.3d 591 (2001) (finding Giebler unpersuasive because it does not address RAP 2.5(a)(3) and because it relies on out-of-state cases having different rules for raising issues on appeal). We now expressly disapprove of the decision in Giebler to the extent that it conflicts with our jurisprudence on the due process right to enforce a plea agreement.

When a defendant claims constitutional error, the court previews the merits of the claimed error to determine whether the argument is likely to succeed. State v. WWJ Corp., 138 Wn.2d 595, 603, 980 P.2d 1257 (1999). The error is considered “manifest” under RAP 2.5(a)(3) if the facts necessary to review the claim are in the record and the defendant shows actual prejudice. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). In both these cases, all relevant facts are in the record. Actual prejudice is shown by the fact that neither Sanchez nor Harris was sentenced according to the plea agreement. Because failure to adhere to a plea bargain implicates due process, this court can accept review under the “manifest error affecting a constitutional right” standard.²

In Sanchez’s case, the State raises an additional procedural issue. Under the Sentencing Reform Act of 1981, chapter 9.94A RCW, a sentence within the standard range generally is not appealable. Former RCW 9.94A.210(1) (2000). However, the statute does not prevent an appellant from challenging the procedure used by the court to impose a standard range sentence. State v. Ammons, 105 Wn.2d 175, 183, 713 P.2d 719, 718 P.2d 796, cert. denied, 479 U.S. 930 (1986). Sanchez challenges the procedure; namely, whether the court erred in allowing the IO to provide an argument regarding sentencing that was at variance with that which the prosecutor was bound to by the plea agreement. Therefore, there is no statutory bar to the appeal.

We hold that review is appropriate in both cases under the “manifest error affecting a constitutional right” standard, and is not barred in Sanchez’s case by former RCW 9.94A.210U).

ANALYSIS

In each of these cases the prosecutor made the recommendation at sentencing to which he agreed in the plea agreement. The petitioners do not allege that the prosecutors breached the agreement by their own words or conduct.³ Rather, the issue presented is whether the recommendations made by others to the judge at the sentencing hearing breached the agreement. In effect, the petitioners claim that a plea agreement binds not only the individual prosecutor but also any other employee of the State of Washington or, indeed, in the case of the IO in Sanchez any government employee, even one in a separate department.

A plea agreement is like a contract and is analyzed according to contract principles. State v. Sledge, 133 Wn.2d 828, 838-39, 947 P.2d 1199 (1997). Petitioners point out that the caption in criminal cases is “State v....,” and they refer to courts’ habit of using the terms “state” and “prosecutor” interchangeably. See Sledge, 133 Wn.2d at 840 (referring to “the State’s good faith obligation to effectuate the plea agreement”). They also cite to RCW 36.27.005, which provides that prosecuting attorneys “appear for and represent the state” and RCW 36.27.020(4), stating that the prosecuting attorney shall prosecute “all criminal and civil actions in which the state or the county may be a party.” (Emphasis added.) The petitioners assert that because a contract binds not only the party to the contract, but also the party he or she represents and that party’s agents, the plea agreement binds all “agents” of the state.

The State responds that the duty is restricted to the prosecutor, and that plea agreements are made not between the “state” and the defendant, but between the prosecutor and the defense attorney (or defendant if acting pro se). Thus, the State asserts that the agreements did not bind either Sanchez’s 10 or Harris’s CCO.

We have previously held that “[t]he prosecutor and the defendant are the only parties to a plea agreement.” State v. Wakefield, 130 Wn.2d 464, 474, 925 P.2d 183 (1996). The statutes governing the plea bargaining process are in accord with this holding. Former RCW 9.94A.080 (2000) (“The prosecutor and the attorney for the defendant, or the defendant when acting pro se, may engage in discussions with a view toward reaching [a plea] agreement. . . .”); former RCW 9.94A.090(1) (2000) (“If a plea agreement has been reached by the prosecutor and the defendant. . . .”) (emphasis added). Conversely, when the police enter into an agreement with the defendant but do not make the prosecutor a party, the prosecutor is not bound by its terms. State v. Reed, 75 Wn. App. 742, 745, 879 P.2d 1000 (1994), review denied, 125 Wn.2d 1016 (1995). Because the “prosecutor and the defendant are the only parties to a plea agreement,” Wakefield, 130 Wn.2d at 474 (emphasis added), we find the agency analysis argued by the petitioners inappropriate.⁴ Instead, whether a government employee other than the prosecutor is bound by the agreement depends not on the employee’s role vis-á-vis the prosecutor, but on the employee’s role vis-á-vis the sentencing court. Thus, for example, the Court of Appeals has previously held that because juvenile court probation counselors are employees of the court, they are not bound by the terms of the plea agreement. State v. Poupart, 54 Wn. App. 440, 446-47, 773 P.2d 893 (1989); accord State v. Merz, 54 Wn. App. 23, 771 P.2d 1178 (1989). In contrast, a parole officer who has no statutory role in the sentencing hearing and whose input was not requested by the trial court is bound by the plea agreement because he or she is acting on behalf of the prosecutor rather than the court. Sledge, 133 Wn.2d at 843.

However, neither Poupart nor Sledge controls our analysis here. Unlike the probation counselors in Poupart, neither Sanchez’s 10 nor Harris’s CCO is an employee of the court. Unlike the parole officer in Sledge, both Sanchez’s 10 and Harris’s CCO have a statutory role in sentencing. And unlike the parole officer in Sledge, the sentencing court in Harris requested the CCO’s input.

In the absence of Washington cases that are directly on point, both the State and the petitioners cite to authority from other jurisdictions. Arizona has held that when a plea agreement refers to the state, “it is the parties’ mutual intent to use that term in referring only to the prosecutorial branch of the State” and therefore an IO’s report suggesting a lengthy sentence did not violate the agreement. State v. Rogel, 116 Ariz. 114, 568 P.2d 421, 423 (1977). In Utah, an IO’s recommendation that the defendant be imprisoned, and his statement that “ ‘15 years is not long enough’ ” did not violate the prosecutor’s agreement to recommend probation, because “policy requires a plea agreement reached by a prosecutor not to be binding on other state agencies.” State v. Thurston, 781 P.2d 1296, 1298, 1300 (Utah Ct. App. 1989). Similarly, Wisconsin has held that a parole or probation officer preparing a presentence report “acts on behalf of an independent judiciary, not as an agent of the state.” State v. McQuay, 154 Wis. 2d 116, 452 N.W.2d 377, 383 (1990).

Florida alone has determined that a prosecutor’s plea bargain binds all state agents. Lee v. State, 501 So. 2d 591, 593 (Fla. 1987). This is similar to the position of federal courts, which have held that absent an express limitation on the government’s obligations, a plea agreement entered on behalf of the government by one assistant attorney general (AAG) binds another AAG because “[t]he [federal] prosecutor’s office is an entity and as such it is the spokesman for the Government.” Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972). Here, the petitioners go further and claim not that one prosecutor binds another prosecutor but that a prosecutor’s agreement binds other persons, including at least one, Sanchez’s IO, who is not even a state employee.⁵ We cannot agree.

Sanchez

The statutory role of Sanchez’s 10 is outlined in former RCW 9.94A.110(1) (2000).⁶ An 10 is listed as a person whose arguments the court must allow:

The 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.

Former RCW 9.94A.110(1) (emphasis added). Sanchez did not object to the fact that the 10 testified but now disputes the conclusions drawn from his strongly advocated opinions.

The dissent contends that argument “ ‘as to the sentence to be imposed’ ” in former RCW 9.94A.110 is distinguishable from a sentence recommendation. Dissent at 363. However, because there are no restrictions on the type of argument that can be made regarding the “sentence to be imposed,” this is a distinction without difference. Thus, contrary to the dissent’s assertion, former RCW 9.94A.110 specifically authorizes parties other than the prosecutor and the defendant, including the 10, to make sentencing recommendations.⁷

Sanchez asserts that when a prosecutor enters a plea bargain knowing that another government employee will present the sentencing judge with strong reasons to impose a harsher sentence, there is an appearance of unfairness. However, as pointed out by the Court of Appeals, the IO, an independent official, was not involved in the plea agreement:

A prosecutor does not breach a plea agreement by advising the court of witnesses who wish to testify at a sentencing hearing and therefore the State here did not undercut the plea agreement. State v. Davis, 43 Wn. App. 832, 837, 720 P.2d 454, review denied, 106 Wn.2d 1017 (1986). Sergeant Ruffin was not an employee of the prosecutor’s office and was not a party to the plea agreement. He did not participate in the plea negotiations and had no voice in deciding the bargained for agreement.

Sanchez Ct. of Appeals Commissioner’s Ruling (Aug. 1, 2000) at 4.

Furthermore, a prosecutor does not control the actions of an IO.⁸ Despite the dissent’s contention that former RCW 9.94A.440 allows prosecutors to “direct the activities of law enforcement,” dissent at 362, former RCW 9.94A.440(2)(b) merely requires a prosecutor to ensure that the investigating officer’s evidence is sufficient to support a decision to prosecute. Moreover, unlike a prosecutor’s obligation to inform victims of a proposed plea agreement, a prosecutor need not even discuss the proposed plea agreement with an IO. See former RCW 9.94A.080-.100 (2000).

Because former RCW 9.94A.110 specifically contemplates “arguments” from an IO regarding the sentence, and because that officer is not under the control of the prosecutor’s office, he is more like the independent officer in Poupart than the parole officer in Sledge. We therefore hold that Sanchez’s IO did not have a duty to abide by Sanchez’s plea agreement with the county prosecutor, and therefore, his plea agreement was not breached by Sergeant Ruffin’s testimony at the sentencing hearing.

Harris

The statutory duty imposed on a CCO is to produce a presentence report pursuant to court order, though the statute does not specifically mention him/her as a person whose arguments must be allowed at the sentencing hearing.

[T]he court shall, at the time of plea or conviction, order the department to complete a presentence report before imposing a sentence upon a defendant who has been convicted of a felony sexual offense. . . .

The court shall consider the risk assessment report and presentence reports, if any, including any victim impact statement and criminal history....

Former RCW 9.94A.110(1) (emphasis added).

Harris argues that former RCW 9.94A.110 does not permit a CCO to present argument at the sentencing hearing or allow him or her to place such argument in the written text of the presentence report. However, this court has already acknowledged a CCO’s ability to recommend a specific sentence to the sentencing court. State v. Mail, 121 Wn.2d 707, 708, 854 P.2d 1042 (1993) (“[CCO] recommended an increased exceptional sentence of 85 months”) (emphasis added). Moreover, the statute does not specify any such limitations, but rather provides for “a baseline—a minimum amount of information which, if available and offered, must be considered in sentencing.” Mail, 121 Wn.2d at 711. Specific limitations on the sources the sentencing court may rely on are found in former RCW 9.94A.370(2) (2000):

In determining any sentence, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing. Acknowledgement includes not objecting to information stated in the presentence reports.

Former RCW 9.94A.370(2). Thus, the court may rely on any information in the presentence report, unless it is the subject of an objection.⁹ Furthermore, a CCO acts on behalf of the court when it provides information through a presentence report. See CrR 7.1(b) (presentence report may contain “such other information as may be required by the court”) (emphasis added). Harris did not object to the information content of the report, but now disputes the conclusions drawn from that information.

Similarly, although former RCW 9.94A.110 does not require oral arguments from the CCO, neither does it disallow argument.¹⁰ It seems incongruous to require a report on a standard form that contemplates a sentencing recommendation without permitting oral presentation of that recommendation and the reasons for it. By statute, the CCO has an independent duty of investigation and recommendation in these cases. The CCO is not part of the prosecution team. The CCO was not involved in the preparation of nor the promises made in the plea agreement.¹¹ See former RCW 9.94A.080-.100 (2000). In these circumstances, we hold that a CCO cannot be bound by the plea agreement.

Additional Issues

Sanchez claims that the trial judge erred in not imposing a SSOSA. At Sanchez’s hearing, the trial judge stated that he did not believe a SSOSA was appropriate absent a perversion, and gave his opinion that the request for a SSOSA in this case was merely a plea for leniency:

So then that brings us down to the question of whether or not SSOSA’s [sic] responsible. The argument seems to me, that I’m hearing, is that he doesn’t have a problem, he doesn’t have perversion, so why would he need SSOSA is my question? Why is SSOSA an element? Seems to me that what’s being argued here is that there really ought to be leniency and the Court ought to treat—to use SSOSA to accommodate leniency, and I don’t think the law allows me to do that.

SRP (Oct. 27, 1998) at 46.

The SSOSA statute in effect at the time indicated that it is available to any first-time offender who is amenable to treatment, and not merely to sexual deviants. Former RCW 9.94A.120(7)(a)(i) (1990); State v. Ziegler, 60 Wn. App. 529, 803 P.2d 1355 (1991). Sanchez repeatedly emphasized, however, that he acted only out of normal, healthy impulses. A perfectly healthy defendant would arguably not be “amenable to treatment.” Thus, the trial judge acted within his discretion in failing to impose a SSOSA sentence.

Sanchez also argues that because no restitution hearing was held within the 180-day time limit, the restitution order should be stricken. The Court of Appeals has properly remanded this issue to the trial court.

CONCLUSION

The only parties to a plea agreement are the prosecutor and the defendant either through counsel or pro se. Neither Sanchez’s IO nor Harris’s CCO was a party to the plea agreement and thus neither was bound by it. The trial judge in Sanchez’s case acted within his discretion in refusing to impose a SSOSA sentence. The Court of Appeals is affirmed in both cases.

Smith, Ireland, and Owens, JJ., concur.

1 Sanchez Report of Proceedings (SRP) (Oct. 27, 1998) at 24-25.

2 RAP 2.5(a)(3).

3 The dissent seems to imply that even though the prosecutor agreed to recommend a particular sentence, because of the relationship between the prosecutor and the IO, the prosecutor is able to influence an IO’s testimony at a sentencing hearing. Dissent at 360 n.15. Although Sanchez asserts that the defense counsel’s comment at the plea hearing that the prosecutor “ ‘tries hard to work with the victims and their families and the police too in any plea agreement,’ ” Sanchez’s Suppl. Br. at 7 (quoting Sanchez Suppl. Report of Proceedings at 8), supports his position that the IO was consulted regarding the plea agreement, there is no evidence that such a consultation occurred in Sanchez’s case. Even if the prosecutor had consulted with the IO, Sanchez offers no evidence that the prosecutor improperly sought the IO’s assistance in undermining the plea agreement by making a sentencing recommendation contrary to the plea agreement. If that had happened, the plea agreement might have been breached. See State v. Sledge, 133 Wn.2d 828, 842-43, 947 P.2d 1199 (1997) (holding that prosecutor breached the plea agreement by eliciting testimony from witness that was contrary to agreed upon sentence recommendation).

4 Even if we agreed with the petitioners and the dissent’s position that the case should he analyzed according to agency principles, the dissent’s agency analysis presents a strained view of Washington law. The dissent improperly relies on Sledge, 133 Wn.2d at 839 n.6 to support its assertion that ‘Washington cases have recognized that the prosecutor is an agent of the State, whose agreement binds the State.” Dissent at 360. Although Sledge uses the terms “prosecutor” and “State” interchangeably, the court in that case was not asked to decide the question of whether a prosecutor is an agent of the State. Furthermore, the dissent mischaracterizes our holding in State v. Sargent, 111 Wn.2d 641, 762 P.2d 1127 (1988). In Sargent, we specifically limited our holding that the probation officer was an agent of the State to situations where a defendant should have been given his procedural warnings pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 111 Wn.2d at 652 (holding that probation officer was “clearly the agent of the State in this transaction”) (emphasis added). In fact, the probation officer’s soliciting of the defendant’s posttrial confession was incorporated into the probation officer’s presentence report and was not challenged at the sentencing hearing. Id. at 644. It was only after the defendant’s conviction was reversed on appeal and the State sought to use the confession at his subsequent trial that an objection was made. Id. The dissent acknowledges the factual distinction between this case and a Court of Appeals case that held that CCOs are agents of the state Sot Miranda purposes. Dissent at 362 (citing State v. Willis, 64 Wn. App. 634, 825 P.2d 357 (1992)). Finally, relying on former RCW 9.94A.440 (2000), the dissent asserts that IOs act as agents of the prosecution because prosecutors “direct the activities of law enforcement.” Dissent at 362. However, former RCW 9.94A.440(2)(b) merely requires a prosecutor to ensure that the IO’s evidence is sufficient to support a decision to prosecute. It does not remove law enforcement officers’ independent authority to investigate criminal activity and uphold the law. See, e.g., RCW 35.23.161 (“The department of police in a city of the second class shall be under the direction and control of the chief of police subject to the direction of the mayor.”) (emphasis added); RCW 35.27.240 (“The department of police in a town shall be under the direction and control of the marshal subject to the direction of the mayor.... [The marshal’s] lawful orders shall be promptly executed by deputies, police officers and watchmen.”); RCW 36.28.010(1) (“The sheriff is the chief executive officer and conservator of the peace of the county. In the execution of his office, he and his deputies: (1) Shall arrest and commit to prison all persons who break the peace, or attempt to break it, and all persons guilty of public offenses!.]”).

5 Sergeant Ruffin was employed by the Moses Lake Police Department. Sanchez Clerk’s Papers at 37.

6 The dissent asserts that because former RCW 9.94A.110 “does not fall within those sections relating to pleas” but is related to “sentencing in general,” it should not serve as authority for IOs to make arguments regarding the sentence to be imposed. Dissent at 363. However, this argument makes no sense. Although other statutes address the plea agreement process, the sentencing hearing authorized by former RCW 9.94A.110 necessarily requires a conviction and former RCW 9.94A.030(10) (2000) defines “conviction” as “an adjudication of guilt pursuant to Titles 10 or 13 RCW and includes a verdict of guilty, a finding of guilty, and acceptance of a plea of guilty” (emphasis added).

7 Even if we were to accept the dissent’s position, in this case Sergeant Ruffin did not make a specific sentence recommendation. He merely articulated a number of reasons for imposing a harsh sentence and because the prosecutor made no sentence recommendation, his testimony did not directly contradict the prosecutor’s position. See SRP at 24-27.

8 As noted above, Sanchez does not contend that the prosecutor improperly encouraged the IO to offer evidence supporting a greater sentence than was agreed to in the plea agreement.

9 The dissent asserts that former RCW 9.94A.110 merely “requires a court to order the Department of Corrections to prepare a presentence report, not a sentencing recommendation.” Dissent at 365. However, the dissent fails to acknowledge that there is no statutory limitation on what may be included in a presentence report. As the dissent notes, CrR 7.1(b) mandates that the report contain certain information about the defendant and “such other information as may be required by the court.” CrR 7.1(b) (emphasis added). Dissent at 366. See also former RCW 9.94A.370(2) (court may rely on any information in the presentence report, unless it is the subject of an objection).

10 The dissent asserts that because CCO’s are “expressly omitted” from making arguments regarding sentencing in former RCW 9.94A.110, the rule of statutory construction, expressio unius est exclusio latrius, prohibits their inclusion. Dissent at 364-65, 366. Unlike the statute analyzed in State v. Sommerville, 111 Wn.2d 524, 760 P.2d 932 (1988), which provided for three specific exceptions to the general rule, RCW 9.94A.110 prescribes only who the court must hear from. RCW 9.94A.110(1) states that the “court shall... allow arguments from,” not the “court shall. .. allow only arguments from.” Thus, it does not, as argued by the dissent, specifically limit who may present testimony at the sentencing hearing to only those parties listed in the statute.

11 Harris does not contend that there was any collaboration between the prosecutor and the CCO as to CCO’s sentencing recommendation nor does he argue that the prosecutor in some way encouraged the CCO to make a sentencing recommendation contrary to the plea agreement.