Opinion
No. 60466-0-I.
January 22, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-08925-8, Sharon S. Armstrong, J., entered July 30, 2007.
Affirmed by unpublished per curiam opinion.
A prosecutor does not undercut a plea agreement merely by vigorously advocating the State's position for a sentence recommendation that the parties did not agree to. Nor does the prosecutor violate due process by responding candidly to the court's inquiry. Here, neither the prosecutor's emphasis on the serious facts supporting the conviction nor the prosecutor's response to the court's questions about the basis for the State's sentencing recommendation of no jail time amounted to a breach of the plea agreement. Accordingly, we affirm.
FACTS
Hillary Hemler was charged with assault of a child in the second degree — domestic violence, alleged to have occurred between May 1, 2005, and January 9, 2006. Charges were filed after Hemler's stepdaughter, ten-year-old S.H., was seen at a hospital for what Hemler and S.H. said were self-inflicted bruises to her face and head.
According to the certificate of probable cause, a family counselor had been visiting S.H. because of ongoing Child Protective Services (CPS) concerns. On January 9, 2006, Hemler tried to call off the counselor's scheduled visit. The counselor came anyway and observed that S.H.'s eye was swollen almost shut and that S.H. had other injuries. The counselor insisted that S.H. receive medical attention. S.H. was taken to Children's Hospital, where she stayed for two weeks of psychological evaluation. S.H. showed no psychological signs consistent with self-injury, and a medical doctor found her physical injuries inconsistent with the self-abuse she and Hemler had reported. S.H. nonetheless maintained that she caused the injuries, as she had for other incidents, until a police detective disclosed to her that an eyewitness saw Hemler hitting S.H. in the face two days before the counselor saw her. S.H. ultimately described a regimen of social isolation, bizarre discipline, denial of food, and daily physical and mental abuse. CPS case files, neighbor-eyewitnesses and school officials corroborated S.H.'s reports in several respects and contradicted Hemler's characterization of S.H. as a difficult child. After six weeks in treatment and foster care, S.H. gained sixteen pounds.
Through counsel, Hemler reached a plea agreement with the State to plead guilty to a reduced charge of assault in the third degree. The State agreed to recommend a first-time offender waiver, with no jail time, and mental health treatment consisting of weekly individual therapy for two years as recommended in a psychological evaluation by Dr. Leslie Rawlings. The treatment would be conducted by a therapist experienced in working with parents who were physically abusive to their children and would be terminable only on approval of that therapist and the defendant's correctional officer. The State also recommended Hemler have no unsupervised contact with any minors except as approved by a qualified treatment provider and corrections officer.
In a written presentence memorandum, the defense endorsed the recommendation for no jail time, but objected to Dr. Rawlings' treatment recommendations as excessive and unnecessary. The memorandum described Hemler's offense as occasionally striking S.H. when they argued, and repeated S.H.'s initial claims of self-abuse. Attached to the memorandum were letters of support for Hemler. Several opined that Hemler was a fine mother to S.H. Some maintained that Hemler was innocent and the victim of manipulation by S.H. One protested the proceedings as having railroaded Hemler into falsely pleading guilty, and argued the charges should only have been a misdemeanor.
The trial court also received Dr. Rawlings' 14-page report and recommendations. Dr. Rawlings considered police, dependency and school reports, witness statements, medical records, and photographs. He interviewed Hemler, Hemler's parents, and S.H.'s father, Alan Hemler. Dr. Rawlings reported that Hemler denied most allegations in the certificate of probable cause. Hemler only admitted slapping S.H. on two occasions and grabbing her when she threatened to harm herself with a knife. Hemler denied neighbors' reports that she required S.H. to engage in abusive physical exercises, but acknowledged having S.H. engage in jumping jacks out doors as a voluntary "part of her regimen." Hemler also admitted there were occasions when she did not let S.H. eat dinner, but said it was reasonable punishment for misbehavior and that S.H. was adequately fed. Hemler also denied a CPS caseworker's report that Hemler said she would have preferred for S.H. to live outside and the family dogs inside. Some of the standardized tests given to Hemler appeared invalid because she apparently endorsed naively defensive items and provided excessively self-favorable answers. Dr. Rawlings identified issues of obsessive-compulsive disorder, generalized anxiety disorder and narcissistic personality features along with child abuse.
The trial court reviewed all of the written materials before commencing the sentencing hearing. At the hearing S.H.'s mother, Dawn Whitsom, expressed consternation that Hemler still blamed S.H. and showed no remorse, and that S.H. still suffered. Whitsom said S.H. was emaciated when she left the hospital and had gained 60 pounds in the past year. She said S.H.'s father's entire family had ostracized S.H., which, if Hemler had real remorse, she would have attempted to discourage. Whitsom also complained that Hemler never had apologized for what she did. Whitsom said S.H. needed to hear Hemler admit that she had told lies about S.H.
In response to the defense presentence report, the prosecutor described the photographs as showing a horribly bruised child with both eyes blackened and bruises all over her chest. In addition the prosecutor reported that S.H. said she was very sad about being cut off from her father's family. The prosecutor said S.H. was emaciated when she went to the hospital and that Dr. Rawlings' report showed how the defendant had tried to control S.H. The prosecutor speculated that S.H. might have eating issues for the rest of her life and commented that it was disappointing how little responsibility Hemler had taken for her actions in speaking to Dr. Rawlings. The prosecutor said she nonetheless accepted the report and recommendations because it showed that Hemler's mental health issues caused her to present herself in the best possible light. The prosecutor said the State thus wanted Hemler in treatment, not to punish her with jail.
The trial court said it was struggling with the recommendation for no jail because what it saw from the written materials was sadistic abuse of a child that was inexplicable, unforgivable, and could not be justified as being provoked by a child S.H.'s age. The trial court asked the prosecutor if the sentence recommendation did not include any jail time because of the perception that Hemler had mental health issues.
The prosecutor answered affirmatively, pointing out that most of the time S.H. had lived with Hemler there were no problems. Only in the last three months did it seem the issues appeared, which resulted in abuse that was the worst the prosecutor had seen. The prosecutor said that she was not minimizing the abuse, but because things had gone so well for so long, it appeared something must have gone terribly wrong to cause the behavior. She also felt S.H.'s father Alan had some responsibility for not responding to the patently obvious abuse.
Defense counsel contended the prosecutor's comment about this being the worst abuse she had seen improperly undercut the plea bargain, was unnecessary, and was untrue. Defense counsel said he had not presented the other side of the story from the police allegations in his sentencing memorandum because he felt it would do no good to start a dispute about facts in a case that had settled on a no jail recommendation in answering the trial court's question about why it should follow the recommendation. Defense counsel said S.H. had reported that she had inflicted harm on herself in many earlier police reports, and suggested that he had consulted an expert who would have challenged the hospital doctor who did not believe the bruises were self-inflicted. Counsel recounted Hemler's lack of criminal history, desire to work in the healthcare profession, and counsel's unsuccessful attempt to get the State to agree to a misdemeanor rather than a felony. He also pointed out that Dr. Rawlings was the State's approved expert, and asked that Dr. Rawlings' recommended therapy schedule be made more flexible. Defense counsel suggested Hemler's current therapist for anxiety disorder could recommend and conduct the necessary treatment. Counsel also asked the court not to limit unsupervised contact with minors because there was no allegation Hemler harmed anyone outside of the three-month period at the end of her five years living with S.H.
The defendant spoke briefly, saying she had considered S.H. part of her family, and did the best she could to provide a stable and loving environment. She said she had made a mistake, needed to work on that, and planned to do so.
The trial court indicated that it could not follow the no-jail time recommendation in good conscience. The court imposed a first-offender waiver, set a 60-day work-release term followed by community custody for 24 months and included the condition of no unsupervised contact with minors. Specific therapy would be required for abusive parenting issues, but the court did not make Hemler's ongoing treatment for anxiety disorder a condition of the sentence.
After filing her notice of appeal, Hemler filed a motion for stay of sentence in the trial court, contending that she had a strong argument for appeal that the prosecutor had undercut the plea bargain, and denying that the sentencing materials had opened the door to any of the State's comments. The trial court denied the motion, indicating that the prosecutor's comments had not affected it and that the two things that influenced the decision were the facts in the stipulated certification and the defendant's conduct in the courtroom in displaying a lack of understanding or unwillingness to accept the gravity of the conduct. The trial court stated that it had understood the prosecutor's remarks as explaining that there must have been a mental health component to the defendant's behavior and therefore treatment rather than jail was appropriate. The trial court denied a stay. Hemler thereafter filed an emergency motion for stay of the sentence in this court, which a panel of three judges reviewed and denied.
ANALYSIS
A plea agreement is a contract between a defendant and a prosecutor. State v. Talley, 134 Wn.2d 176, 182, 949 P.2d 358 (1998). Because a defendant relinquishes important constitutional rights by entering into a plea bargain, "[d]ue process requires a prosecutor to adhere to the terms of the agreement." State v. Sledge, 133 Wn.2d 828, 839, 947 P.2d 1199 (1997). Under this requirement, a prosecutor need not make an agreed sentencing recommendation enthusiastically. Talley, 134 Wn.2d at 183. A prosecutor is entitled to present relevant facts that might not fully support the recommended sentence. See State v. Gutierrez, 58 Wn. App. 70, 76, 791 P.2d 275 (1990). A prosecutor may not, however, "undercut the plea bargain `explicitly or by conduct evidencing an intent to circumvent the terms of the plea agreement.'" State v. Jerde, 93 Wn. App. 774, 780, 970 P.2d 781 (1999) (quoting Sledge, 133 Wn.2d at 840). The test is whether the prosecutor objectively contradicted the recommendation by use of words or conduct. Jerde, 93 Wn. App. at 780.
A breach has been found when the prosecutor offers unsolicited information or argument that undercuts the State's obligations. See State v. Xaviar, 117 Wn. App. 196, 200-02, 69 P.3d 901 (2003) (prosecutor highlighted aggravating sentencing factors and unfiled charges and called the defendant "one of the most prolific child molesters that this office has ever seen"); State v. Van Buren, 101 Wn. App. 206, 217, 2 P.3d 991 (2000) (breach where prosecutor made only fleeting reference to sentencing recommendation and highlighted three aggravating factors for an exceptional sentence); Jerde, 93 Wn. App. at 777-78 (breach where prosecutor emphasized aggravating factors despite obligation to make mid-range sentencing recommendation). Similarly, a prosecutor's expression of "second thoughts" in submitting a bargained-for recommendation sufficiently tainted the recommendation to constitute a breach of the plea agreement. In re Pers. Restraint of Palodichuk, 22 Wn. App. 107, 108, 110, 589 P.2d 269 (1978).
A prosecutor, however, does not breach a plea agreement by merely reiterating facts necessary to support a high-end standard range recommendation. See, e.g., State v. Monroe, 126 Wn. App. 435, 440, 109 P.3d 449 (2005) (no breach when the prosecutor recounted salient facts, including that defendant's acts were one of the most "`significant crime sprees' the prosecutor could remember" when the prosecutor unequivocally urged the court to accept the State's recommendation), remanded for reconsideration on other grounds, 157 Wn.2d 1016, 142 P.3d 172 (2006).
In determining whether a prosecutor violated the duty to adhere to a plea agreement, the reviewing court considers the entire sentencing record and asks whether the prosecutor contradicted the State's recommendation by either words or conduct. State v. Williams, 103 Wn. App. 231, 236, 11 P.3d 878 (2000). Neither good motivations nor a reasonable justification excuses a breach. Van Buren, 101 Wn. App. at 213. When a prosecutor breaches a plea agreement, the appropriate remedy is to remand for the defendant to choose whether to withdraw the guilty plea or seek enforcement of the State's agreement. Van Buren, 101 Wn. App. at 217.
We have carefully reviewed the record and conclude that there was no breach of the plea agreement. It is significant that the sentence recommendation was not agreed to in every respect. Contrary to Hemler's contention, the distinction between the State and the defense positions on the treatment requirement and no-contact order was substantial and justified vigorous advocacy, including reminding the court of the seriousness of the harm. A strong response to the defense version of the treatment requirement was proper because it could be viewed as allowing the defendant to retain control over the situation by characterizing her problems as merely anxiety-driven, rather than a serious condition leading to child abuse. We also conclude that the defense submissions, considered together and viewed objectively, minimized the defendant's conduct and place blame on the victim, which provides additional context demonstrating the prosecutor's remarks were aimed at advocating for her position on treatment rather than undercutting the no jail recommendation.
We note that the prosecutor's arguments were amply supported by the certificate of probable cause, to which Hemler had stipulated as real and material facts that could be considered at sentencing.
The defendant's statements to the evaluator substantially minimized the actual elements of the crime, which requires proof, as set out in the information, that the defendant "did cause bodily harm accompanied by substantial pain that did extend for a period sufficient to cause considerable suffering." See RCW 9A.36.031(1)(f).
As for the prosecutor's comments in response to the trial court's questioning the recommendation for no jail time, given the trial court's initial reaction the prosecutor had to acknowledge the seriousness of the harm in order to retain credibility. But the prosecutor steadfastly adhered to the recommendation of treatment rather than jail and rationally advocated for it as the most appropriate sentence.
In sum, we conclude that the prosecutor did not undercut the bargained-for recommendation of no jail and did not violate Hemler's due process rights.
Affirmed.