Opinion
No. 52406-2-I.
Filed: June 1, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No: 02-1-01791-1. Judgment or order under review. Date filed: 05/08/2003. Judge signing: Hon. Richard J Thorpe.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Graig A. David (Appearing Pro Se), Stafford Creek Corrections Center, P.O. Box 900, Aberdeen, WA 98520.
Christopher Gibson, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Charles Franklin Blackman, c/o Snohomish County Pros, 3000 Rockefeller Ave, Everett, WA 98201-4061.
While the State must adhere to the terms of a stipulated bench trial agreement by recommending the agreed sentence, that recommendation need not be made enthusiastically so long as the prosecutor's conduct does not undercut the terms of the agreement. In this case the deputy prosecutor did not give a ringing endorsement of the recommendation, but confined herself to the matters that concerned the court. She did not advocate for rejection of the recommended SSOSA or undercut the recommendation. There was no breach of the stipulated trial agreement.
Further, while it is true that the inclusion of plethysmograph testing as a condition of community custody without being part of therapy or treatment is not authorized, a reading of the conditions of community custody as a whole indicates that any such testing would necessarily be made at the suggestion of the therapist before being directed by the supervising Community Corrections Officer. The judgment and sentence are affirmed.
FACTS
Graig Allen David was charged by amended information with two counts of third degree rape of a child. David had sexual intercourse with one of his adopted daughters on at least two separate occasions.
The prosecutor and David agreed to a bench trial on stipulated documentary evidence. In the agreement, the prosecutor agreed to recommend 34-month concurrent sentences under the `Special Sexual Offender Sentencing Alternative' (SSOSA):
Upon receipt of a sexual deviancy treatment evaluation and treatment plan each acceptable to the State from a sexual deviancy therapist acceptable to the State, the State will recommend that the execution of all but 6 months of the sentence of 34 months on Count(s) I, II be SUSPENDED on the following conditions:
. . . Defendant may serve 6 months in work release if eligible, with credit for time served.
. . . Defendant shall be on Community Custody for the length of the suspended sentence or three years, whichever is greater.
After the bench trial, the court found David guilty of the charged offenses. The court proceeded to sentencing. The deputy prosecutor noted the agreement and indicated that she was bound by it. The prosecutor indicated to the court that the case was troubling and stated that the evaluation submitted by the sexual deviancy therapist/treatment evaluator was at best a lukewarm endorsement of David's ability to abide by conditions of a SSOSA. In doing so, the deputy prosecutor set forth facts known to the court through other presentence recommendations considerably more negative than the evaluation. But the prosecutor stood by her recommendation for a SSOSA. Defense counsel also argued at length for imposition of the SSOSA. David then spoke directly to the court, apologizing for his crimes.
The trial court stated it was not persuaded that a SSOSA was proper in this case. The court imposed concurrent 26-month sentences and 36 to 48 months of community custody with conditions that included, among others, David's participation in sexual deviancy treatment, counseling and submission to polygraph and plethysmograph examinations as directed by the supervising Community Corrections Officer (CCO). David appeals.
DISCUSSION
Breach of Stipulated Trial Agreement
David claims the deputy prosecutor undercut the agreement in which he stipulated to a bench trial based on the police reports in exchange for a SSOSA recommendation. He seeks specific performance or a new trial as if he had made a plea agreement with the State.
But a defendant's agreement to submit to a bench trial on stipulated facts does not amount to a cognizable plea agreement wherein a defendant actually pleads guilty. A trial stipulation is only an admission that the State's witnesses would testify in accordance with the summary presented by the State; the trial court then makes the determination of guilt or innocence. David's argument that a bench trial stipulation is no different from a plea agreement is incorrect.
See State v. Ehli, 115 Wn. App. 556, 562-63, 62 P.3d 929 (2003). A guilty plea, once accepted, comprises the conviction; a court merely enters judgment and sentence. Generally, except for certain sentencing issues, the entry of a guilty plea waives the right of appeal.
State v. Wiley, 26 Wn. App. 422, 425-26, 613 P.2d 549 (1980). Unlike a plea agreement, a stipulation for a bench trial preserves legal issues for appeal, including the ultimate finding of guilt.
However, an agreement to accept a bench trial on stipulated facts is intended by the parties to be an enforceable contract. In Washington there is a dearth of cases analyzing possible undercutting of the recommendations to be made by a deputy prosecutor after conviction in a stipulated facts trial. Thus, an analogy to cases discussing a potential breach of plea agreements is reasonable.
The State must adhere to the terms of a plea agreement by recommending the agreed sentence to the court. Although the recommendation need not be made enthusiastically, the prosecutor's conduct at that sentencing hearing may not undercut the terms of the agreement. This court applies an objective standard in determining whether the State breached the agreement irrespective of prosecutorial motivations or justification for the failure in performance. The test is whether the prosecutor contradicts, by word or conduct, the State's recommendation. In making this determination we review the entire sentencing record.
State v. Talley, 134 Wn.2d 176, 183, 949 P.2d 358 (1998); State v. Sledge, 133 Wn.2d 828, 838, 839 n. 6, 947 P.2d 1199 (1997).
Talley, 134 Wn.2d at 183.
State v. Van Buren, 101 Wn. App. 206, 213, 2 P.3d 991 (2000).
Van Buren, 101 Wn. App. at 213, citing State v. Jerde, 93 Wn. App. 774, 780, 970 P.2d 781 (1999).
In reviewing the record here, we note that the prosecutor did not present any new or unknown facts to the sentencing court. She did not suggest terms that deviated from the agreement. There were other letters and reports before the court at sentencing arguing against the imposition of a SSOSA. David and his counsel argued for imposition of the SSOSA. The prosecutor merely stated the obvious, that the evaluation received was a lukewarm endorsement of David's ability to abide by all the conditions of a SSOSA. She further said it was a troubling case given the facts, but even given those facts, the prosecutor noted the evaluation concluded that David was likely amenable to a SSOSA and, as acknowledged by David, she implicitly acknowledged that the evaluation, the treatment plan, and the therapist were acceptable to the State, and thus she would not argue against the recommendation.
See State v. Coppin, 57 Wn. App. 866, 874, 791 P.2d 228 (1990).
We conclude that while this was not a ringing endorsement of the recommendation, the prosecutor confined herself to the matters that concerned the court and did not advocate for rejection of the SSOSA or undercut the recommendation. Consequently, the State did not breach the stipulated trial agreement.
Plethysmograph Testing Condition of Community Custody
David also claims the sentencing court erred by ordering that he submit to plethysmograph testing at the direction of the supervising community corrections officer as a condition of community custody.
The State claims that David cannot assign error to this condition on appeal. Generally, a defendant must object to a sentencing error to preserve the issue for appeal. But we will review David's challenge because he alleges that requiring submission to plethysmograph tests as ordered by only a supervising CCO is not authorized and contrary to law. If this is true it would be an unauthorized condition imposed for monitoring purposes only. See State v. Riles, 86 Wn. App. 10, 15, 936 P.2d 11 (1997), affirmed, 135 Wn.2d 326, 957 P.2d 655 (1998) (a trial court exceeds its jurisdiction when it imposes a sentence contrary to law).
The court sentenced David to community custody and included a number of conditions, including three pertinent to the argument here. David was ordered to:
11. Participate and make progress in sexual deviancy treatment. Follow all conditions outlined in your treatment contract. Do not change therapists without advanced permission of the sentencing Court.
12. Participate in offense related counseling programs, to include Department of Corrections sponsored offender groups, as directed by the supervising Community Corrections Officer.
13. Participate in polygraph and plethysmograph examinations as directed by the supervising Community Corrections Officer.
As background for our decision, we note that the Supreme Court has recognized that plethysmograph testing, unlike polygraph testing, does not serve a monitoring purpose. Instead, it is a gauge for determining immediate sexual arousal in response to various stimuli used as part of treatment and therapy programs for sex offenders. The court noted this is consistent with WAC 246-930-310(7)(c), which states that treatment providers shall recognize that plethysmographic data is only meaningful within the context of a comprehensive evaluation or treatment process.
State v. Riles, 135 Wn.2d 326, 345-46, 957 P.2d 655 (1998).
The Riles court held that requiring a defendant to submit to plethysmograph testing was permissible so long as it was a part of crime related treatment. In the Riles case, the judgment and sentence for two convicted sex offenders required that, as a condition of community placement, they submit to polygraph and plethysmograph testing upon the therapist and/or CCO's request. The sentence of one of the offenders contained a condition that he engage in sexual deviancy treatment. The sentence of the other offender did not include this condition. Because plethysmograph testing was ordered for this second offender without imposing a condition of treatment or therapy, the court struck that provision from his judgment and sentence. However, due to the fact that the other offender was ordered to undergo sexual deviancy treatment, the court affirmed the condition in his sentence.
See State v. Johnson, 97 Wn. App. 679, 683, 968 P.2d 460 (1999).
Here, like the second offender in Riles, David was ordered to submit to sexual deviancy treatment and therapy. Unlike in Riles, where the community custody portion of the sentence ordered that the petitioner submit to the testing upon request of a therapist and/or CCO, the condition here states that David must submit to testing at the request of his supervising CCO. A common sense reading of Riles indicates that plethysmograph testing is valid only in the context of therapy or as a psychological assessment tool, and is not to be used as an indicator that the offender is in compliance with sentencing conditions or other monitoring. But in the instant case, a fair reading of the conditions of community custody as a whole, particularly those listed above, indicates that the CCO's authority to order plethysmograph examinations must necessarily be viewed in the context of David's sexual deviancy treatment since the exams presumably will be a condition of a treatment contract. While the form used here in listing and imposing the conditions of community custody could be clearer and should be made clearer in the future, the conditions meet the Riles test.
Affirmed.
APPELWICK, and BAKER, JJ., concur.