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State v. Hartwell

The Court of Appeals of Washington, Division Two
Nov 30, 2004
124 Wn. App. 1026 (Wash. Ct. App. 2004)

Opinion

No. 31000-7-II

Filed: November 30, 2004 UNPUBLISHED OPINION

Appeal from Superior Court of Mason County. Docket No. 03-1-00138-4. Judgment or order under review. Date filed: 09/18/2003. Judge signing: Hon. James B II Sawyer.

Counsel for Appellant(s), Thomas Edward Doyle, Attorney at Law, PO Box 510, Hansville, WA 98340-0510.

Patricia Anne Pethick, Attorney at Law, PO Box 7269, Tacoma, WA 98406-0269.

Counsel for Respondent(s), Monty Dale Cobb, Mason County Prosecutors Office, 521 N 4th Ave Ste a, PO Box 639, Shelton, WA 98584.


Dennis M. Hartwell appeals his sentence for unlawful delivery of a controlled substance. He argues the State undercut its plea agreement to recommend a DOSA sentence when, at sentencing, the prosecutor questioned Hartwell's commitment to such a program. Holding that the State did not undercut its sentencing agreement, we affirm.

FACTS

Dennis M. Hartwell pleaded guilty to two counts of unlawful delivery of a controlled substance (amphetamine or methamphetamine, contrary to RCW 69.50.401(a)). In his guilty plea statement, Hartwell admitted to having delivered 'methamphetamine to a police informant. I knew it was methamphetamine.' Report of Proceedings (RP) at 24. In exchange for his guilty plea, the State promised to recommend a DOSA sentence, if Hartwell was eligible. Before accepting Hartwell's guilty plea, the court warned him that it had discretion not to follow the State's DOSA recommendation.

RCW 9.94A.660 defines the Drug Offender Sentencing Alternative (DOSA) and states in pertinent part:

(1) An offender is eligible for the special drug offender sentencing alternative if:

. . . .
(c) For a violation of the Uniform Controlled Substances Act under chapter 69.50 RCW or a criminal solicitation to commit such a violation under chapter 9A.28 RCW, the offense involved only a small quantity of the particular controlled substance as determined by the judge upon consideration of such factors as the weight, purity, packaging, sale price, and street value of the controlled substance.

. . . .
(2) If the standard sentence range is greater than one year and the sentencing court determines that the offender is eligible for this alternative and that the offender and the community will benefit from the use of the alternative, the judge may waive imposition of a sentence within the standard sentence range and impose a sentence that must include a period of total confinement in a state facility for one-half of the midpoint of the standard sentence range. During incarceration in the state facility, offenders sentenced under this subsection shall undergo a comprehensive substance abuse assessment and receive, within available resources, treatment services appropriate for the offender. The treatment services shall be designed by the division of alcohol and substance abuse of the department of social and health services, in cooperation with the department of corrections.

The court ordered a Department of Corrections report to determine Hartwell's DOSA eligibility. As a condition of his release pending sentencing, the court ordered Hartwell to submit to urinalysis testing. Hartwell indicated he understood that if any test came back positive for methamphetamine, the court would send him to jail to await his sentencing.

On July 9, Hartwell tested positive for methamphetamine. He requested a re-test, which was also positive. He failed to appear for a third test, scheduled for July 16. Hartwell also failed to appear at a July 24, 2003 hearing to review the results of his urinalysis tests. As a result of his failure to appear for the third test and the hearing, together with the positive test results, the court issued a bench warrant for Hartwell's arrest. When police arrested Hartwell on the warrant, he was 'high.'

The Department of Corrections completed Hartwell's DOSA evaluation, which concluded he had a chemical dependency. Hartwell stated that he (1) had begun using drugs at the age of 12, (2) used methamphetamine and marijuana about everyday, and (3) experienced physical and emotional problems as a result of his drug use.

At sentencing, the State indicated it had agreed not to oppose a DOSA sentence if Hartwell proved eligible, and the State acknowledged his DOSA eligibility. The State also expressed some concern about his commitment to a program, stating, 'I guess the question that we would have that should be asked of Mr. Harwell is how vested he is in that type of treatment program.' RP at 31. The State further acknowledged Hartwell's failure to appear, but reiterated it intended to abide by its agreement to recommend a DOSA sentence.

The trial court did not agree that a DOSA sentence was appropriate for Hartwell. The court based its opinion on Hartwell's failure to appear at the review hearing, noting, 'The demonstration is that you talk a good line[,] but you are not really willing to produce.' RP at 33. The court found Hartwell did not accept responsibility for his acts and that a DOSA sentence was not in his best interest or the best interest of the community. The trial court sentenced Hartwell to 30 months in prison on each count, to run concurrently.

Hartwell appeals his sentence. He asks us to remand to a different trial judge to allow him either (1) to withdraw his guilty plea, or (2) to seek specific performance of the recommendation for a DOSA sentence.

ANALYSIS

Hartwell argues for the first time on appeal that the State undercut its plea bargain.

I. Standard of Review

Generally, we do not consider an assignment of error raised for the first time on appeal. RAP 2.5(a). But we will review a non-preserved issue when it involves a manifest error affecting a constitutional right. State v. Van Buren, 101 Wn. App. 206, 211, 2 P.3d 991, review denied, 142 Wn.2d 1015 (2000) (citing State v. Williams, 137 Wn.2d 746, 749, 975 P.2d 963 (1999); State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995)). A plea agreement concerns the fundamental rights of a defendant, thus, involving constitutional due process. State v. Sledge, 133 Wn.2d 828, 839, 947 P.2d 1199 (1997).

A plea agreement is essentially a contract, to which basic contract principles of good faith and fair dealing apply. Van Buren, 101 Wn. App. at 213. The State is required to recommend to the court the sentence contained in the agreement. Id. (citing State v. Talley, 134 Wn.2d 176, 183, 949 P.2d 358 (1998)). It is not required, however, to make the sentencing recommendation enthusiastically. Id. At the same time, the State cannot undercut the terms of the agreement through conduct indicating an intent to circumvent the agreement. Id. The test is whether the prosecutor contradicts, by words or conduct, the State's sentencing recommendation. Id. (citing State v. Jerde, 93 Wn. App. 774, 780, 970 P.2d 781, review denied, 138 Wn.2d 1002 (1999)).

In deciding whether the State undercut its agreement, we look to the entire sentencing record. Id. (citing Jerde, 93 Wn. App. at 782.)

II. No Breach of Plea Agreement

In Van Buren, we evaluated when the State breached a plea agreement. We looked to Talley, Sledge, and Jerde and found that all three cases concerned whether the State's conduct crossed the line from objectively reporting facts, that might have some bearing on the existence of aggravating factors, to outright advocacy for those factors. Van Buren 101 Wn. App. at 213-15.

Talley, for example, agreed to plead guilty (Alford plea) in exchange for a reduced charge and a standard sentencing range. Talley, 134 Wn.2d at 178-79. The court held that the prosecutor did not cross the line or undercut his recommendation when he participated in an evidentiary hearing to present factual findings supporting an exceptional sentence. Id. at 186. The court recognized, however, that the prosecutor could have undercut the agreement if he emphasized the evidence supporting aggravating factors. Id. But his participation alone did not violate the plea agreement. Id.

In Sledge, the court ruled the prosecutor did cross the line when she (1) extensively questioned a witness during a sentencing hearing on aggravating factors, (2) called an unnecessary witness for the purpose of eliciting testimony about aggravating facts, and (3) summarized the aggravating factors. Sledge, 133 Wn.2d at 843. The court found that despite having stated its standard-range sentencing recommendation, the State undercut the plea agreement with its unmistakable advocacy. Id.

In Jerde, we held the prosecutor breached his plea agreement when he emphasized aggravating factors without prompting by the sentencing court. Jerde, 93 Wn. App. at 775. In Jerde, the State had agreed to recommend a mid-range sentence. At the sentencing hearing, however, the prosecutor recommended the mid-range sentence and then gave a list of aggravating factors making an exceptional sentence appropriate. Id. at 777-78.

The above cases deal specifically with instances where the court imposed exceptional sentences despite plea agreements that did not include such sentences. Hartwell's case, in contrast, does not involve an exceptional sentence. The trial court here sentenced Hartwell to 30 months, within the 26-34 month standard range for delivery of a controlled substance. But the analysis is the same because it deals with the underlying issue of prosecutor's allegedly undercutting sentencing recommendations.

Hartwell argues the State contradicted its recommendation when it 'focused the sentencing court's attention on its (the State's) reluctance to adhere to its plea agreement.' Br. of Appellant at 6. Specifically, Hartwell points to the prosecutor's statement:

I guess the question that we would have that should be asked of Mr. Harwell is how vested he is in that type of treatment program.

If he does not, or if the court does not impose the DOSA, the State would recommend a mid-range sentence.

Id. In making this statement, the State did not highlight reasons why the court should not grant a DOSA sentence. Nor did the State specifically contradict its promised DOSA sentencing recommendation (even though it could have done so by focusing on Hartwell's positive drug tests and failure to appear as reasons why he should not receive a DOSA sentence). The State neither stressed Hartwell's probation violations nor advocated a standard sentence outside the DOSA program. Rather, the State merely informed the court of the State's position in the event the court decided not to follow the plea agreement DOSA recommendation.

Additionally, when viewing the record as a whole, as required by Van Buren, we hold that the State did not undercut its plea agreement to recommend a DOSA sentence for Hartwell. In its statements to the court, the State listed the offense and the standard range, and commented that the State would not oppose a DOSA sentence. It was at this point that the prosecutor questioned whether Hartwell was vested in a DOSA treatment program. But the State followed up by saying, 'It certainly would benefit him, given the facts and circumstances in this case.' RP at 31.

Thus, not only did the State make the promised recommendation, it also offered an argument in favor of the DOSA sentence. Later in the hearing, after the trial court demonstrated its reluctance to grant a DOSA sentence, the State acknowledged the court's concern but reiterated the State's position stating, '[W]e are still continuing to abide by our recommendation.' RP at 33-34.

The State's conduct during the sentencing hearing did not cross the line set out in Van Buren. The State objectively reported facts that might have had some bearing on Hartwell's suitability for a DOSA sentence, but it did not advocate those factors as reasons to defeat a DOSA sentence. On the contrary, the State reiterated and advocated for a DOSA sentence. The record shows that the State adhered to, rather than contradicted, its promised DOSA recommendation.

Affirmed.

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.

MORGAN, A.C.J., and ARMSTRONG, J., concur.


Summaries of

State v. Hartwell

The Court of Appeals of Washington, Division Two
Nov 30, 2004
124 Wn. App. 1026 (Wash. Ct. App. 2004)
Case details for

State v. Hartwell

Case Details

Full title:STATE OF WASHINGTON, Respondent, v. DENNIS M. HARTWELL, Appellant

Court:The Court of Appeals of Washington, Division Two

Date published: Nov 30, 2004

Citations

124 Wn. App. 1026 (Wash. Ct. App. 2004)
124 Wash. App. 1026