Opinion
No. 51476-8-I.
Filed: June 1, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 01-1-07369-5. Judgment or order under review. Date filed: 11/24/2002. Judge signing: Hon. Jeffrey M Ramsdell.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA, 98101.
Thomas Michael Kummerow, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA, 98101-2402.
Counsel for Respondent(s), Hugh J. Barber, Attorney at Law, King Cnty Pros Offc, 516 3rd Ave Ste W554, Seattle, WA, 98104-2390.
Michael Koehler, Jr., and his co-defendant Gregory Torres both pleaded guilty to first degree murder while armed with a deadly weapon and with sexual motivation. By the terms of the co-defendants' respective plea agreements, the prosecutor agreed to recommend a high-end standard range sentence for Torres and a mid-range standard range sentence for Koehler.
The two co-defendants were sentenced at the same time. They both agreed that the sentencing court could consider the facts outlined in the Certification for Determination of Probable Cause as the real facts for purposes of sentencing. Those facts were gruesome. The co-defendants lured the victim to a park where Torres stabbed her in the stomach and then raped her. When the victim tried to escape, the co-defendants chased her down; Torres stabbed her more than 85 times and Koehler inflicted several additional stab wounds. Altogether, the victim was stabbed 90 times. The prosecutor outlined these events at the sentencing hearing and, after showing the court a photograph of the victim's mutilated body, made the State's sentencing recommendation in accord with the plea agreements. The prosecutor also explained to the sentencing court that there is an 80-month difference between the high and low ends of the standard range for first degree murder, which gives the court considerable discretion within the standard range. The prosecutor's recommendation that Torres receive a higher standard range sentence than Koehler was based on Torres' greater participation in the violence inflicted upon the victim. Prior to sentencing, the victim's family had sent numerous letters to the court emphasizing the brutality of the crime and the grief brought upon the family by the loss of their daughter, sister, aunt and mother. Several of the victim's family addressed the court at the sentencing hearing, and made impassioned pleas for exceptional sentences indeed life sentences for both defendants.
Through their respective counsels, Defendant Torres sought a mid-range standard range sentence, and Defendant Koehler sought a low-end standard range sentence. Each of the defendants personally addressed the court, expressing remorse and requesting mercy, and some members of Koehler's family and one of his teachers also addressed the court. The court imposed exceptional sentences on both defendants, based on the aggravating factors of deliberate cruelty and sexual motivation. In the course of explaining deliberate cruelty, the court quoted from the letters written by various of the victim's family members, including the following descriptions of the crime: `That it `verged on a savagery reserved for psychotics, maniacs and beasts on a killing binge.' This is `murder for kicks.'' Report of Proceedings at 63. The court also quoted from the letter of another family member who wrote that the victim had been `[s]tabbed so many times that she had a cardboard nose.' Id. And the court quoted from another letter in which a family member pointed out that the defendants had `[c]elebrated their kill by giving each other a tattoo to commemorate their despicable acts[.]' Id. And the court noted that a family member had asked `how or why someone could be so brutal, so inhuman, so cruel[.]' Id. Koehler and Torres' standard ranges were 240 to 320 months, plus the 24-month deadly weapon enhancement. The prosecutor recommended 300 months plus the deadly weapon enhancement for Koehler, and 320 months plus the deadly weapon enhancement for Torres. The trial court imposed an exceptional sentence of 356 months plus the 24-month weapon enhancement for a total of 380 months upon Koehler, and 380 months plus the 24-month weapon enhancement for a total of 404 months upon Torres. Mr. Koehler then brought this timely appeal, contending that the prosecutor breached the plea agreement by undercutting it in the course of the sentencing hearing that is, that by emphasizing the brutality of the crime and by displaying the photograph of the victim's body at the hearing, the prosecutor effectively invited the court to ignore the plea bargain and to impose an exceptional sentence.
Mr. Torres also appealed his exceptional sentence on different grounds. That appeal has been disposed of by an unpublished opinion cited as 2003 WL 22701566 Wash. App. Div. 1) and noted at 119 Wn. App. 1021 (2003).
DISCUSSION I. Plea Agreement
When a defendant pleads guilty, he or she waives important constitutional rights. State v. Tourtellotte, 88 Wn.2d 579, 583, 564 P.2d 799 (1977), citing Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Thus, a claim that a plea agreement was breached can be raised for the first time on appeal. State v. Van Buren, 101 Wn. App. 206, 211-12, 2 P.3d 991 (2000), citing State v. WWJ Corp., 138 Wn.2d 595, 603, 980 P.2d 1257 (1999).
Waiver of these constitutional rights requires the State to exercise good faith in fulfilling the promises that led the defendant to enter into the plea agreement. State v. Sledge, 133 Wn.2d 828, 838-39, 947 P.2d 1199 (1997); Tourtellotte, 88 Wn.2d at 584; State v. Coppin, 57 Wn. App. 866, 871, 791 P.2d 228 (1990), disapproved of on other grounds by State v. Jerde, 93 Wn. App. 774, 784-86, 970 P.2d 781 (1999). This includes making the specific sentencing recommendation that the State promised the defendant it would make. Sledge, 133 Wn.2d at 840; Coppin, 57 Wn. App. at 874. The prosecutor may not undercut the terms of the agreement, `explicitly or by conduct evidencing an intent to circumvent the terms of the plea agreement.' Sledge, 133 Wn.2d at 840; State v. Talley, 134 Wn.2d 176, 197, 949 P.2d 358 (1998). This court views the prosecutor's actions and comments objectively to determine whether the State has breached a plea agreement. Jerde, 93 Wn. App. at 778.
Koehler asserts that the prosecutor's comments and conduct during sentencing violated his plea agreement with the State by emphasizing the cruel nature of the murder. Koehler claims that the prosecutor focused on specific gruesome facts that would justify a sentence different from that recommended by the State.
In State v. Sledge, the prosecutor improperly undercut a plea agreement when, after making the agreed-upon recommendation for a sentence within the standard range, he elicited extensive testimony from the defendant's probation counselor and parole officer about their recommendations for an exceptional sentence and re-emphasized various aggravating factors which would sustain an exceptional sentence. Sledge, 133 Wn.2d at 842-43. Similarly, in State v. Jerde the State violated the terms of the plea agreement when prosecutors first recommended the agreed-upon mid-range sentence, and then proceeded to outline the legal and factual basis upon which the court could impose an exceptional sentence. Jerde, 93 Wn. App. at 777-78, 782. See also, State v. Williams, 103 Wn. App. 231, 233, 11 P.3d 878 (2000) (State violated plea agreement to recommend a standard range sentence by submitting a sentencing report that set forth aggravating circumstances for an exceptional sentence); State v. Van Buren, 101 Wn. App. at 217 (State violated the plea agreement when it downplayed its recommendation and focused the court's attention on aggravating factors). More recently, in State v. Xavier the court held that a prosecutor violated a plea agreement to recommend a standard range sentence for child molestation when she recited the egregious facts of the crime, emphasized that child molestation permeated every aspect of the defendant's life, asserted that the defendant's conduct constituted a "monumental violation of trust" of the victims, stated that the defendant was one of the most prolific child molesters her office had ever seen, and that the defendant groomed very young children and that his victims would never have a normal relationship. State v. Xavier, 117 Wn. App. 196, 200, 69 P.3d 901 (2003). The Xavier court opined that by highlighting various statutory aggravating circumstances, factors that the trial court subsequently used to justify an exceptional sentence, the prosecutor clearly signaled to the court her lack of support for a standard range sentence. Xavier, 117 Wn. App. 196, 200-01.
Koehler argues that the prosecutor's behavior in this case is indistinguishable from the behavior of the prosecutors in Sledge, Jerde, and Xavier. We disagree. As the prosecutor pointed out to the sentencing court, for these co-defendants there was an 80-month difference some six and a half years between the low and high ends of the standard range for first degree murder. By the terms of the plea agreements, the prosecutor was to recommend a high-end standard range sentence for Torres and a mid-range sentence for Koehler but both Koehler and Torres were free to request lower range sentences, and they both did so. It was reasonable for the prosecutor to explain the different conduct of each of the co-defendants in the course of committing their crime, in order to explain why the prosecutor was recommending a high-end standard range sentence for one of them and a mid-range standard range sentence for the other. Such an explanation would be difficult to accomplish without pointing out which of the defendants raped the victim, and which of them inflicted the vast majority of the stab wounds.
The prosecutor was also free to anticipate the fact that each of the defendants would seek lesser sentences, and to advocate for the higher sentences that the State was recommending. Although we do not necessarily condone the fact that the prosecutor held up a picture of the victim's brutalized body, neither do we necessarily condemn it in this particular case, in light of the fact that Koehler was seeking a sentence at the low end of the standard range and Torres was seeking a mid-range sentence. As the prosecutor explained to the sentencing court, the 80-month variance between the high and low ends of the standard range sentence for first degree murder indicates that the Legislature intentionally left room for the exercise of substantial judicial discretion within the standard range based on the facts of a particular first degree murder and the prosecutor cannot be said to have undercut the plea bargain by asking the court to reject any lesser standard range sentences than those recommended by the State, based on the brutality of the crime.
Viewed objectively, the record makes it very clear that the victim's family was devastated by the loss of their relative and at the brutality of her death, and that they were absolutely outraged over the plea bargain. The family made it very clear to the court in their pre-sentencing victim impact statements and during their presentations at the sentencing hearing that they believed both Koehler and Torres should remain in prison for the maximum term of life so that they could never brutalize anyone else like they brutalized this victim.
The victim's family, of course, was not bound by the plea agreement and was free to urge the court to reject the plea bargain which they did, most eloquently and persuasively, both in their letters to the court written prior to sentencing, and in their statements to the court in the course of the sentencing hearing. It is clear from the court's summing up at the close of the sentencing hearing that the letters from the family, rather than the prosecutor's statement, were what persuaded the court that exceptional sentences were justified. By quoting from their letters in the course of explaining the nature of deliberate cruelty, the court in effect told the family that their pleas for exceptional sentences had not fallen upon deaf ears.
We observe that the prosecutor was successful in persuading the court that as between the two co-defendants, Torres deserved the longer sentence based on his more egregious conduct. We conclude that the prosecutor's statement did not cross the line between advocacy in support of the State's bargained-for recommendation and undercutting of the plea agreement. That the crime in which Koehler participated was so brutal as not to be susceptible to description in strictly clinical terms is no basis for a reversal of his exceptional sentence.
We summarily reject Koehler's contention, raised in his reply brief, that by asking this court to affirm the exceptional sentence the prosecutor breached the plea agreement. See State v. Arko, 52 Wn. App. 130, 133-34, 758 P.2d 522 (1988) (holding that prosecutor did not breach plea agreement to advocate a sentence within the standard range by asking appellate court to affirm the exceptional sentence imposed by the sentencing court). We also reject the premise that Arko was overruled sub silentio by our Supreme Court in State v. Talley, 134 Wn.2d 176 (holding that prosecutor does not breach plea agreement by participating in court-ordered pre-sentencing evidentiary hearing that might produce facts that would support an exceptional sentence). And finally, we reject Koehler's argument that Arko violates the doctrine of separation of powers, a proposition for which he provides no relevant authority.
We affirm Koehler's exceptional sentence.
BECKER and BAKER, JJ., concur.