Opinion
No. 1 CA-CR 10-0595 PRPC
03-15-2012
STATE OF ARIZONA, Respondent, v. MONTE MONTIERTH, Petitioner.
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
Maricopa County Superior Court No. CR2007-031289-001SE
DECISION ORDER
Petitioner Monte Montierth petitions this court for review from the summary dismissal of his petition for post-conviction relief ("PCR"). Presiding Judge Diane M. Johnsen and Judges Donn Kessler and Andrew W. Gould have considered this petition for review, and for the reasons stated, grant review and grant relief.
Montierth pled guilty to two counts of indecent exposure, count one, a Class 6 undesignated felony, and count two, a Class 1 misdemeanor. The parties stipulated that "Amended Count 1 shall not be designated a misdemeanor until successful completion of probation, including payment in full of all restitution and successful completion of any ordered treatment and/or counseling." However, at sentencing and over counsel's objection, the superior court designated count 1 a felony.
Montierth then filed his PCR of-right. He claimed in part that the designation of count 1 as a felony at sentencing was a breach of the plea agreement, and that his counsel was ineffective. He argued alternatively that if the plea permitted such designation, his plea was not entered into knowingly, voluntarily or intelligently. The superior court summarily dismissed the petition.
From this order Montierth timely petitioned this court for review. Contrary to the State's argument and the superior court's findings, the record reflects that Montierth's plea agreement limited the court's discretion to designate the offense at sentencing. Montierth was promised the opportunity to "earn" a misdemeanor. Designating the offense a felony at sentencing nullified this promise.
Because of our resolution of Montierth's argument that his plea agreement was breached, we do not address the other issues he raises.
Prior to the change of plea, the parties advised the court that as to the settlement status of the case, "Plea offer: Count 2: Indecent Exposure, a class 1 misdemeanor + Count 1, as amended: Indecent Exposure to a Minor, a class 6 undesignated felony, stipulate supervised probation, sex offender terms and registration at court's discretion, restitution, earn misdemeanor." (Emphasis added).
At the change of plea hearing, the court specifically advised Montierth that in the absence of a plea agreement, the court had three options when dealing with undesignated felonies: The court could designate the offense a misdemeanor, designate the offense a felony, or leave the offense undesignated. The court then reviewed the terms of the plea agreement and advised Montierth, "The class 6 undesignated felony shall not be designated as a misdemeanor unless and until you successfully complete probation. . . . Is that your agreement?"
Prior to sentencing the prosecutor filed a recommendation in which he reiterated "Plea Stipulations: supervised probation, all sex offender terms, registration at court's discretion, earn misdemeanor, restitution up to $100,000." (Emphasis added). Moreover, the adult probation officer wrote in her presentence report that when asked why he "took the plea," Montierth responded he "wants the least amount of time on probation" and he "wants a misdemeanor conviction so he can quickly return to his church."
At sentencing, when the court expressed its intent to designate the offense a felony, counsel stated:
DEFENSE COUNSEL: Can I ask one question, Your Honor? The - just to be clear, the
plea agreement called for an undesignated offense. Is it the court's intention to designate the felony at this time?
THE COURT: If the offense has to remain undesignated under the plea, then I will follow the plea, and it will remain undesignated. Thank you.
DEFENSE COUNSEL: Thank you, Your Honor.
The prosecutor then volunteered to the court:
PROSECUTOR: Your Honor, I don't believe that the plea requires that the offense remain undesignated.
THE COURT: Okay. Let me look it up.
PROSECUTOR: He pled to a class 6 undesignated, and I believe it's the court's discretion whether to designate it as a felony or not.
THE COURT: My notes seem to indicate . . . count 1 shall not be designated as a misdemeanor until successfully completed probation.
PROSECUTOR: That does not mean that it can't be designated a felony, Your Honor.
DEFENSE COUNSEL: I'm not sure about that, Your Honor. I just recommend if we're not sure about it, leaving it at this time.
The court then designated the offense a felony. Almost immediately after sentencing, Montierth filed his PCR of-right, raising his breach-of-plea-agreement claim. He stated he did not speak up at sentencing because he is hard of hearing.
The record reflects Montierth is hearing-impaired.
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Later Montierth filed a motion to revoke probation, arguing that because the sentencing judge designated count 1 a felony, "which is contrary to a material incentive to enter the plea agreement at all, then the defendant's negotiation for probation has lost it's [sic] purpose entirely . . . ."
Although the superior court's finding that the plea agreement did not bar the offense from being designated a felony is literally correct - for example, if Montierth did not successfully complete probation, the offense could be designated a felony - the only reasonable reading of the stipulation is that count 1 could not be designated a felony until after Montierth first had the opportunity to "earn" a misdemeanor. Thus, designating the offense a felony at sentencing constituted a breach of the plea agreement.
A plea agreement is like a contract. See Mejia v. Irwin, 195 Ariz. 270, 272, ¶ 12, 987 P.2d 756, 758 (App. 1999); State v. Ross, 166 Ariz. 579, 583, 804 P.2d 112, 116 (App. 1990). When a court accepts a plea agreement, it is bound by the terms of the agreement. Mejia, 195 Ariz. at 272, ¶ 12, 987 P.2d at 758. If a court wishes to reject a sentencing stipulation, it may do so, but it must allow the parties an opportunity to withdraw from the plea agreement. Id.
In Ross, relied on by Montierth, the court held concerning the stipulated terms of a plea agreement that "a breach occurs not only when the state directly breaks its promise, 'but also when the spirit of the inducement, reasonably inferred from the written agreement, is breached.'" Ross, 166 Ariz. at 583, 804 P.2d at 116 (quoting State v. Limpus, 128 Ariz. 371, 374, 625 P.2d 960, 963 (App. 1981)). A "plea agreement allows the state to induce a defendant to plead guilty and waive his fundamental rights to a jury trial, to confront his accusers, to present witnesses in his defense, and to be convicted by proof beyond a reasonable doubt." Id. "To falsely inform a defendant of the consequences of his plea agreement, or to fail to honor the terms of the plea agreement, violates constitutional due process." Id. at 583-84, 804 P.2d at 116-17; see also Santobello v. New York, 404 U.S. 257, 262-63 (1971) (due process implicated when state breaches material portions of plea agreement).
Santobello provides the standard to be applied in determining whether a sentence and guilty plea should be vacated following such a breach. 404 U.S. at 262. According to the Court, a plea cannot stand where it "rests in any significant degree" upon the promise breached or where the promise breached was "part of the inducement or consideration" for the plea. Id. The record in this case reflects that the promise for an opportunity to "earn" a misdemeanor was a significant inducement to Montierth.
Santobello also held that when the State breaches the plea agreement's stipulations regarding sentencing, due process requires remand for specific performance of the agreement before a new sentencing judge or for an opportunity for the defendant to withdraw from his plea. Id. at 262-63; see also Ross, 166 Ariz. at 584-85, 804 P.2d at 117-18.
Therefore, we vacate the superior court's order of dismissal and remand this matter to the superior court so that Montierth may elect specific performance of the plea agreement or to withdraw from his plea agreement.
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DIANE M. JOHNSEN, Presiding Judge