Opinion
Nos. 35943-0-II; 35946-4-II.
May 13, 2008.
Appeals from a judgment of the Superior Court for Pierce County, No. 06-1-00094-5, Katherine M. Stolz, J., entered February 6, 2007.
Affirmed by unpublished opinion per Houghton, C.J., concurred in by Hunt and Penoyar, JJ.
Laron McGee appeals the trial court's finding that he breached his plea agreement and its denial of his motion to withdraw his guilty pleas to several charged crimes. We affirm.
McGee raised issues in two appeals that we consolidated for review.
FACTS
On October 17, 2005, the State charged McGee with first degree robbery and unlawful possession of a controlled substance. On January 6, 2006, the State charged him with unlawful possession of a firearm, possession of a stolen firearm, and reckless driving. On June 8, 2006, McGee entered Alford pleas to all charges.
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 16 (1970); State v. Newton, 87 Wn.2d 363, 371-72, 552 P.2d 682 (1976). An Alford plea allows a defendant to enter a plea of guilty for purposes of settling a particular criminal proceeding while denying guilt. 400 U.S. at 37.
In exchange for McGee's plea of guilty, the State entered into an agreement with him. Among other things, he agreed to maintain daily contact with Pierce County Sheriff's Deputy Roger Leach; to advise Leach of any change in address or telephone number; to comply with state and local law; and to perform two "reliability drug purchases" as well as other controlled substance purchases from at least three individuals, including Anthony Williams. Clerk's Papers (CP) at 57. As part of the agreement, the State agreed to future dismissal of some charges and to recommend a reduced sentence on the charged crimes in recognition of McGee's promise to cooperate.
On September 6, 2006, the State filed an affidavit averring that McGee had not complied with the plea agreement primarily because he failed to maintain contact with Leach. The trial court issued a bench warrant, and law enforcement officers arrested McGee on October 20, 2006. McGee agreed to and signed waivers delaying the evidentiary/sentencing hearing four times. On McGee's behalf, defense counsel signed a fifth waiver and rescheduling document.
On February 6, 2007, the trial court held an evidentiary hearing on whether McGee had violated the plea agreement. The State called Leach, who testified that McGee (1) had not maintained contact after early August 2006, (2) was a suspect in three motor vehicle theft cases and the theft of a $3,000 saddle, (3) had not provided addresses of his residences, and (4) had not followed through on his commitment to help the police by purchasing controlled substances.
Defense counsel cross-examined Leach. Thereafter, neither the State nor McGee called other witnesses. The trial court found McGee to be in breach of the agreement. It also denied McGee's motion to withdraw his guilty pleas. McGee appeals.
ANALYSIS
McGee first contends that his due process rights were violated because he "was given no notice by the prosecutor of the specific allegations against him prior to or even at the evidentiary hearing. Post-hearing, the trial court failed to specifically find any willful material breach, or to state evidence relied upon to support such findings." Appellant's Br. at 13-14.
We review asserted due process violations de novo. State v. Autrey, 136 Wn. App. 460, 467, 150 P.3d 580 (2006). But we review the trial court's findings at an evidentiary hearing to discern whether substantial evidence supports them. State v. Kessler, 75 Wn. App. 634, 638-39, 879 P.2d 333 (1994). Substantial evidence is that quantum of evidence sufficient to persuade a rational, fair-minded person of its truth. City of Tacoma v. William Rogers Co., 148 Wn.2d 169, 191, 60 P.3d 79 (2002).
Merely accusing the defendant of misconduct following a plea agreement does not relieve the State of its bargained-for responsibilities. In the Pers. Restraint of James, 96 Wn.2d 847, 850, 640 P.2d 18 (1982). Before relieving the State of its obligations under a plea agreement, fairness requires that the defendant have an opportunity to call witnesses in an evidentiary hearing and other due process rights, "including the requirement that the State prove, by a preponderance of the evidence, that the defendant has failed to perform his or her part of the agreement." James, 96 Wn.2d at 850; see also State v. Cassill-Skilton, 122 Wn. App. 652, 656, 94 P.3d 407 (2004). "Preponderance of the evidence means evidence that is more probably true than not true." In the Matter of the Welfare of Sego, 82 Wn.2d 736, 739 n. 2, 513 P.2d 831 (1973).
Our courts construe plea agreements as contracts. State v. Armstrong, 109 Wn. App. 458, 461, 35 P.3d 397 (2001). After a party breaches the plea agreement, the nonbreaching party may either rescind or specifically enforce it. Armstrong, 109 Wn. App. at 462. When the State is the nonbreaching party and elects to rescind a plea agreement, we measure its rights under pertinent contract law. See Armstrong, 109 Wn. App. at 462. Here, the State sought to rescind its plea agreement with McGee.
The State apprised McGee of its intentions to revoke the plea agreement and, thus, he received notice commensurate with minimal due process. He signed four separate scheduling orders that successively rescheduled the evidentiary hearing, and his counsel signed a fifth scheduling order. Each scheduling order alerted McGee that a sentencing hearing would take place, and each bore the same cause number as the original order suspending his sentence. Additionally, at the beginning of the evidentiary hearing, McGee's counsel stated to the trial court, "we're prepared to go forward" regarding "allegations that the State has made in reference to compliance." RP (Feb. 6, 2007) at 5. McGee received adequate notice.
With respect to the trial court's findings, although we strongly encourage entry of written findings, we consider an oral transcript amenable to judicial review sufficient. State v. Dahl, 139 Wn.2d 678, 689, 990 P.2d 396 (1999). According to the hearing transcript, the trial court found that McGee breached the agreement. Leach testified that McGee had not maintained daily contact with him as required by the agreement, had not provided addresses of where he resided, and had not followed through on his commitment to help the police by purchasing controlled substances. This evidence substantially supports the trial courts determination, by a preponderance of the evidence, that McGee violated the terms of the agreement.
McGee next argues that his breach, if any, was not material. As noted, we apply principles of contract law to plea agreements. Armstrong, 109 Wn. App. at 461-62. A material breach is one serious enough to justify the other party's abandoning the contract because the contract's purpose is defeated. Park Ave. Condo. Owners Ass'n v. Buchan Devs., LLC, 117 Wn. App. 369, 383, 71 P.3d 692 (2003). Whether a breach is material depends on the circumstances of each particular case. Kessler, 75 Wn. App. at 641.
Under the facts here, when McGee failed to maintain daily contact with Leach he materially breached the plea agreement. McGee knowingly, willingly, and voluntarily pleaded guilty to five charges, including first degree robbery, unlawful possession of a controlled substance with intent to deliver, and possession of a stolen firearm. Given the seriousness of these crimes, daily contact with Leach formed an essential element of the agreement to the State, in that it would allow it to monitor McGee, a serious offender, as he helped the State pursue other individuals.
McGee next contends that the State itself breached the plea agreement. This "breach," according to McGee, was the failure "to fulfill [the State's sentencing] obligations notwithstanding the absence of judicial findings that Mr. McGee had not complied with any specific term of his agreement. Moreover, the State failed to allege, either in writing or verbally, any specific breach of the terms of the Plea Agreement and Contact [sic]. Finally, no violations were proved." Appellant's Br. at 22.
As noted above, the trial court's oral decision provides us with an adequate basis for review.
The record provides no basis for McGee's contention. First, he sets forth no examples of the State's failure to fulfill its obligations under the plea agreement. Second, as noted above, the State alleged McGee's specific violations of his plea agreement: he had not maintained contact with Leach as required or provided updated address information, he was a suspect in criminal activity, and he had not performed the three purchases as outlined in his plea agreement. And, as already discussed, the trial court had substantial evidence before it to find, by a preponderance of the evidence, that McGee violated the terms of his plea agreement.
Finally, McGee argues that the trial court abused its discretion by not allowing him to withdraw his guilty pleas under the doctrine of "Discharge by Supervening Frustration." Appellant's Br. at 23. Apparently, McGee could not sell drugs to Williams because Williams was incarcerated. Thus, he asserts that the denial of his motion to withdraw his guilty pleas is a manifest injustice due to impossibility of performance.
We review a trial court's denial of a motion to withdraw a guilty plea for abuse of discretion. State v. Olmsted, 70 Wn.2d 116, 118, 422 P.2d 312 (1966). "`A trial court abuses its discretion when its decision is manifestly unreasonable or based upon untenable grounds.'" State v. Perrett, 86 Wn. App. 312, 319, 936 P.2d 426 (1997) (quoting Havens v. C D Plastics, Inc., 124 Wn.2d 158, 168, 876 P.2d 435 (1994)). The appellant bears the burden of establishing an abuse of discretion. State v. Williams, 137 Wn. App. 736, 743, 154 P.3d 322 (2007).
A supervening frustration discharges a contractual obligation where, without either party's fault, an unanticipated event frustrates a party's principal purpose in entering into the contract. Wash. State Hop Producers, Inc. Liquidation Trust v. Goschie Farms, Inc., 112 Wn.2d 694, 700, 773 P.2d 70 (1989). The object must be so basic to the contract, as both parties understand it, that without it the transaction would make little sense. Wash. State Hop Producers, 112 Wn.2d at 700.
McGee fails to show an abuse of discretion. The trial court had tenable reasons for interpreting the plea agreement as it did. Williams' incarceration had no bearing on McGee's obligations to perform other controlled buys. The trial court properly denied McGee's motion to withdraw.
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.
HUNT, J. and PENOYAR, J., concur.