Opinion
Nos. 56607-5-I; 56673-3-I.
October 1, 2007.
Appeals from a judgment of the Superior Court for King County, No. 02-1-10065-8, Michael Heavey, J., entered July 22, 2005.
Affirmed by unpublished per curiam opinion.
A prosecutor does not undercut a plea bargain when he participates in a discussion with the judge and defense attorney about the correct sentencing requirements of the law. Here, the prosecutor's disagreement with the defense attorney's reading of the law in response to a query from the bench did not amount to a breach of the plea agreement. We affirm.
FACTS
In 2002, the State charged Larry Davis with two counts of forgery, attempting to elude the police and taking a motor vehicle without permission. While these cases were pending, Davis moved to California. There, Davis was convicted of manufacturing methamphetamine and was sentenced to 54 months. In 2005, while serving his sentence in California, Davis was extradited to Washington to appear before the court on the outstanding charges against him.
Although the charges in Washington were based on two separate informations, they were jointly resolved by a single plea agreement. In return for Davis' guilty pleas, the State agreed to recommend that the charges run concurrently both with each other and with the California sentence.
At the sentencing, the prosecutor made the agreed recommendation of concurrent sentences. The trial court judge stated, "I'm not inclined to make this concurrent with the California matter," and asked the defense attorneys to "educate" him as to why it should be concurrent. Defense counsel expressed their belief that the Sentencing Reform Act of 1981 (SRA) required the sentences to run concurrently. The prosecutor, however, disagreed that the SRA mandated concurrent sentences with regard to the California sentence. The prosecutor then cited RCW 9.94A.589(3) in order to answer the court's line of inquiry regarding the SRA.
Chapter 9.94A RCW.
RCW 9.94A.589(3) provides:
Subject to subsections (1) and (2) of this section, whenever a person is sentenced for a felony that was committed while the person was not under sentence for conviction of a felony, the sentence shall run concurrently with any felony sentence which has been imposed by any court in this or another state or by a federal court subsequent to the commission of the crime being sentenced unless the court pronouncing the current sentence expressly orders that they be served consecutively.
Recognizing that neither attorney was fully prepared to address the issue of the sentencing requirements under the SRA, the judge recommended that they continue the discussion at the next sentencing date.
At the following sentencing date, a different prosecutor again made the agreed recommendation in front of the same judge. The trial court imposed concurrent sentences on the Washington cases, but chose to depart from the parties' recommendations and ordered the Washington sentences to be served consecutively to the California sentence. The trial court based its decision on the fact that a concurrent sentence to the California sentence would mean that Davis would never be punished for the crimes he committed in Washington. Davis appeals.
ANALYSIS
Plea Bargain
In determining whether the prosecution breached its plea agreement, courts apply an objective standard. "`The test is whether the prosecutor contradicts, by word or conduct, the State's recommendation for a [particular] sentence.'" Davis specifically objects to the prosecutor's following statement:
State v. Julian, 102 Wn. App. 296, 9 P.3d 851 (2000).
State v. Van Buren, 101 Wn. App. 206, 213, 2 P.3d 991 (2000) (quoting State v. Jerde, 93 Wn. App. 774, 780, 970 P.2d 781 (1999)).
[I]t doesn't sound right to me that you can flee, and then get sentenced concurrently within another state. But I don't have the — I would have to look it up. But it doesn't sound right.
It is clear, however, that the prosecutor was responding directly to the court's inquiry regarding its authority to impose consecutive sentences in such a situation.
Here, the prosecutor's remarks did not undercut the plea agreement. As noted in State v. Talley, "`[p]resenting evidence that will help the court make a decision does not amount to advocating against [the prosecutor's] earlier recommendation.'" Moreover, the plea agreement itself recognized that there might be recommendations which differ from the prosecutor's.
134 Wn.2d 176, 186, 949 P.2d 358 (1998) (quoting State v. Talley, 83 Wn. App. 750, 759, 923 P.2d 721 (1996)).
When the parties returned for sentencing, a different prosecutor again recommended concurrent sentences, as agreed in the plea bargain. A sentencing judge is not bound by any recommendation contained in the plea agreement. Here, the judge lawfully exercised his discretion and chose not to follow the parties' sentencing recommendations.
State v. Henderson, 99 Wn. App. 369, 374, 993 P.2d 928 (2000).
DNA Sampling
Davis next objects to the trial court's order that he provide a biological sample for DNA (deoxyribonucleic acid) identification analysis and inclusion in the State's DNA database because of his felony conviction. Davis contends that this requirement violates the Fourth Amendment of the United States Constitution and article I, section 7 of the Washington State Constitution. Davis' arguments were recently rejected by the Washington Supreme Court in State v. Surge.
160 Wn.2d 65, 156 P.3d 208 (2007).
We affirm.