Opinion
No. 40683-7-II.
January 6, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Clallam County, No. 09-1-00458-6, Kenneth D. Williams, J., entered April 29, 2010.
Remanded by unpublished opinion per Quinn-Brintnall, J., concurred in by Penoyar, C.J., and Armstrong, J.
Daniel Eliyahshua M. Klein agreed to plead guilty to the third amended information charging him with two counts of communicating with a minor for immoral purposes of a sexual nature in violation of RCW 9.68A.090(2). Because Klein has a history of prior sex offenses, the crimes are Class C felonies with standard ranges of 51-60 months and a maximum penalty of five years' imprisonment. In exchange for Klein's guilty plea, the State agreed to dismiss several charges and recommend a sentence of 51 months, the low end of the standard range. At sentencing, however, the deputy prosecutor misstated the parties' agreement:
The statement of defendant on plea of guilty contains the following: "The prosecuting attorney will make the following recommendation to the judge: [XXXX] Standard Range Sentence; 51 months incarceration, with credit for time served; with crime related prohibitions and affirmative obligations for purposes of assuring compliance with such prohibitions; court costs; restitution $TBD. The State agrees to dismiss counts 3 through 7 with prejudice. The State agrees not to file any charges against me arising from conditions of release on this case. This resolves all charges against me from this investigation." Clerk's Papers at 40.
Your Honor, this is a joint recommendation. We're asking the Court to impose a 51 to 60 months on Count 1 and 2. We're asking for 36 months community custody. We're asking that the Court follow the recommendations as set forth in the presentence investigation, appendix F, and that be incorporated in to the judgment and sentence.
Report of Proceedings (April 29, 2010) at 3.
The court sentenced Klein to 60 months' incarceration, the top of the standard range, and to 36 months' community custody on conditions outlined by the community corrections officer's presentence report, with the condition that the combined total of incarceration and community custody was not to exceed 60 months.
On appeal, Klein argues that the State violated the plea bargain when it failed to recommend the agreed sentence. The State correctly concedes error.
There is a strong public policy in enforcing plea agreements that are voluntarily and intelligently made. In re Pers. Restraint of Breedlove, 138 Wn.2d 298, 309, 979 P.2d 417 (1999). A plea agreement is analogous to a contract. State v. Harrison, 148 Wn.2d 550, 556, 61 P.3d 1104 (2003). When the prosecution breaches its plea agreement, even inadvertently, the defendant has the right to choose to remedy the breach either by obtaining specific performance of the plea agreement or withdrawing his plea. State v. Miller, 110 Wn.2d 528, 536, 756 P.2d 122 (1988). If the defendant elects to withdraw his plea, the case returns to its pre-plea posture and he may be held to answer all charges, including those dismissed pursuant to the agreement. State v. Oestreich, 83 Wn. App. 648, 649-50, 922 P.2d 1369 (1996). If the defendant chooses specific performance, he should be resentenced by a different judge. Harrison, 148 Wn.2d at 557.
Accordingly, we accept the State's concession and remand to the trial court for further proceedings consistent with this opinion.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J. and PENOYAR, C.J., concur.