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State v. Romero

The Court of Appeals of Washington, Division Two
Aug 7, 2007
140 Wn. App. 1002 (Wash. Ct. App. 2007)

Opinion

Nos. 34844-6-II; 34850-1-II; 34854-3-II.

August 7, 2007.

Appeals from a judgment of the Superior Court for Pierce County, No. 04-1-01423-1, Stephanie A. Arend, J., entered April 14, 2006.


Affirmed by unpublished opinion per Hunt, J., concurred in by Bridgewater and Quinn-Brintnall, JJ.


atthew Kayne Romero appeals his convictions and sentences for unlawful possession of a controlled substance with intent to deliver, first degree possession of stolen property, and first degree theft. He argues that (1) the State breached the plea agreement, (2) the trial court erred in failing to conduct an evidentiary hearing on the State's allegations that Romero had breached the plea agreement, (3) he should be allowed to withdraw his pleas, and (4) he should be allowed his choice of remedy — either specific performance of the plea agreement or reinstatement of the original charges. We hold that Romero forgave the State's alleged breach and waived his right to an evidentiary hearing when he agreed that he had breached the plea agreement, withdrew his motion to withdraw his guilty pleas, and agreed to the State's modified sentencing recommendation. We affirm.

FACTS I. Plea Bargain

On March 23, 2004, the State charged Romero with committing the following crimes: unlawful possession of methamphetamine, driving under the influence of intoxicants, unlawful use of drug paraphernalia, and third degree driving while license suspended or revoked, Pierce County Superior Court cause number 04-1-01423-1. On November 16, 2004 the State charged Romero with three counts of first degree possession of stolen property, Pierce County Superior Court cause number 04-1-05350-3. On January 21, 2005, the State charged Romero with committing first degree theft for unlawfully, feloniously, and wrongfully obtaining or exerting unauthorized control over a Chevrolet Corvette, with a value exceeding $1500, Pierce County Superior Court cause number 05-1-00347-4.

On March 15, 2005, Romero and the State entered into a plea agreement under these three Pierce County cause numbers. Romero agreed to plead guilty to three charges: unlawful possession of a controlled substance with the intent to deliver under cause number 04-1-01423-1; first degree possession of stolen property under cause number 04-1-05350-3; and first degree theft under cause number 05-1-00347-4. Romero also agreed to "recover intact a 1990 Chevrolet Corvette . . . or provide information to law enforcement which shall result in the recovery of said vehicle." Clerk's Papers (CP) at 11.

Romero also agreed that his offender score was 12.

In this March 2005 plea agreement, the State agreed (1) to dismiss charges in two other cases pending against Romero, cause numbers 04-1-02670-1 and 03-1-05728-4; (2) to recommend a 90-month Drug Offender Sentencing Alternative (DOSA) for Romero's possession of methamphetamine with the intent to deliver charge in Pierce County Superior Court cause number 04-1-01423-1, to be served concurrently with concurrent 57-month sentences for both the first degree theft and the first degree possessing stolen property charges in Pierce County Superior Court cause numbers 05-1-00347-4 and 04-1-05350-3; and (3) not to object to Romero's sentences running concurrently with other property-theft cases in Thurston and Snohomish counties; (4) to ask the trial court to release Romero on his own recognize until the sentencing hearing on March 30, approximately two weeks after entry of Romero's guilty pleas. As a condition of the State's recommended sentence, the agreement provided:

The State made no promises about any other charges that might have also been pending against Romero.

In 1995, the Legislature enacted DOSA as a "treatment-oriented alternative to a standard range sentence of confinement." State v. Kane, 101 Wn. App. 607, 609, 5 P.3d 741 (2000). For certain offenders, DOSA allows a sentencing court to impose prison confinement that is one-half the standard range sentence, and it allows the offender to serve the other half in community custody while obtaining treatment for substance abuse. Id.; former RCW 9.94A.660 (2002).

Both Romero and the State agreed that the standard range sentence for the possession of methamphetamine with the intent to deliver charge in cause number 04-1-01423-1 was 60 to 120 months confinement.

The parties agreed that the standard range sentence for the first degree theft and the first degree possession of stolen property charges in cause numbers 05-1-00347-4 and 04-1-05350-3 was 43 to 57 months confinement.

Our appellate record does not contain copies of the trial court's conditions of release or the scheduling orders for the March 30 sentencing.

UPON THE CONDITION THAT MATTHEW ROMERO FAILS TO PERFORM ANY OF THE ABOVE PROMISES, FAILS TO APPEAR FOR ANY SUBSEQUENT COURT PROCEEDINGS OR COMMITS ANY CRIMES WHILE RELEASED THIS DOCUMENT WILL NO LONGER CONSTITUTE THE PIERCE COUNTY PROSECUTING ATTORNEY'S OFFICE'S RECOMMENDATION AND SUCH OFFICE WILL NO LONGER BE BOUND BY ANY AGREEMENT CONTAINED WITHIN THIS DOCUMENT.

CP at 12. In addition, Romero agreed that if he failed to perform as promised, (1) the State would not recommend a DOSA for the possession of methamphetamine with the intent to deliver charge in cause number 04-1-01423-1; and (2) instead, the State would recommend a standard range sentence of 120 months confinement for the possession of methamphetamine with the intent to deliver charge in cause number 04-1-01423-1, to be served consecutively to exceptional sentences of 114 months for both the first degree theft and the first degree possession of stolen property charges in cause numbers 05-1-00347-4 and 04-1-05350-3.

The plea agreement further stated that it was "the sole agreement between the parties to the agreement; this agreement shall not be modified by either party without the signed written agreement of both parties." CP at 11.

II. Entry of Guilty Pleas

On March 15, the trial court engaged in a lengthy colloquy with Romero and advised him about the maximum penalties and the presumptive sentences for all three charges to which he was pleading guilty. Romero indicated that he (1) understood he was giving up certain constitutional rights and the trial court did not have to follow the State's or defense counsel's sentencing recommendations; (2) did not have any questions about his guilty plea; and (3) was pleading guilty freely and voluntarily.

Romero committed new crimes while he was on release pending sentencing. And he failed to appear for his sentencing hearing. The trial court issued a bench warrant for his arrest.

III. Motion To Withdraw Guilty Pleas

On November 17, Romero moved pro se to withdraw his guilty pleas; he also requested appointed counsel. Romero argued that he had not entered his pleas knowingly and voluntarily because (1) he had believed the plea agreement would dispose of any possible additional charges the State could bring against him; (2) but after Romero and the State signed the plea agreement, the State filed new charges against him, under Pierce County Superior Court cause number 05-1-03566-0, for alleged criminal conduct that he had committed before signing the plea agreement; (3) he did not have enough time to confer with his attorney and instead had simply followed his attorney's advice in pleading guilty; (4) he has a serious drug addiction; and (5) his offender score was miscalculated.

The record on appeal contains no information about the charges under this new cause number.

Romero's counsel filed a new motion supplementing Romero's pro se motion to withdraw his three guilty pleas. In counsel's motion, Romero declared (1) he had understood that his plea agreement would resolve all outstanding or pending criminal matters with which the State could charge him; (2) but the State subsequently charged him under a new cause number 05-1-03566-0 for new crimes he had allegedly committed in 2004, conduct that had occurred before the March 2005 plea agreement.

The trial court scheduled a hearing for April 14, 2006, on Romero's motion to withdraw his pleas. But when the parties appeared for that hearing, the State explained that Romero agreed he had violated the terms of the March 2005 plea agreement and that the parties had worked out a new plea agreement in response to these violations. Romero informed the court that he no longer wanted to withdraw his guilty pleas and he agreed to the new sentencing recommendations.

IV. Breach of Original Plea Agreement; Entry Into New Plea Agreement

Explaining that Romero no longer wished to withdraw his guilty pleas, his defense counsel stated:

I've talked to [Romero's former defense counsel] and [Romero] about this in some detail. Given the agreement that was reached and the — similar to a situation of you need to be careful what you ask for, it may have been ill advised with regard to the attempt to withdraw the pleas and put it back at Square 1 facing the charges. And so [Romero] has indicated to me that he does not wish to pursue that plea withdrawal anymore, and I think that is a sound decision on his part.

We also looked into whether there was any agreement that he could get specific performance of the agreement that he entered into. There was certainly a dispute about the state of the car when it was returned, but obviously, other aspects or other provisions of that agreement were that he appear for all future hearings and that he not commit any crimes while released. Obviously, he was arrested in Oregon and convicted down there, so that was a clear violation of that agreement and gave us no basis to try to argue for specific performance of that. Therefore, we did reach the agreement we reached with [the State]. That's been explained by both myself and [Romero's co-defense counsel] to Mr. Romero and I'm confident that he understands and I'm confident that he agrees it's in his best interest to adopt the agreed recommendation as set forth by [the State] which involves high-end sentences for each of the three cases that we're dealing with here.

Report of Proceedings (RP) (Apr. 14, 2006) at 9-10 (emphasis added).

Under this new plea agreement, (1) the State would recommend that the trial court sentence Romero to 120 months in prison for possession of methamphetamine with the intent to deliver, 57 months in prison for first degree possession of stolen property, and 57 months in prison for first degree theft, to be served concurrently with each other, but consecutively to Romero's sentence in a separate Thurston County Superior Court case; and (2) the State would dismiss Pierce County Superior Court cause number 05-1-03566-0, but Romero would make restitution in that dismissed Pierce County case.

The State and Romero agreed that Romero had violated the March 2005 plea agreement by failing to appear for sentencing and by committing new crimes in Oregon and Thurston County while released on his own recognizance pending sentencing. The State also alleged that Romero had not returned the Corvette intact as promised, which Romero disputed. Echoing what had already been said, Romero's co-defense counsel told the court:

More specifically, the State informed the court:

There was an agreement between the State and the defendant which was filed with the Court. Part of that agreement, Your Honor, was that Mr. Romero was to return a Corvette that he had stolen in an intact condition. The vehicle did arrive, was recovered, returned to the victim; however, it wasn't intact. In addition, Your Honor, Mr. Romero failed to appear for a sentencing on May 12th and instead he was arrested earlier that morning in Oregon and was convicted of several crimes in Oregon. After that, Your Honor, he was brought back and went to Thurston County. In Thurston County he had a pending `04 PSP 1 case. In addition, during the time he was released, supposedly to perform the agreement, he was arrested on May 1st, `05, in Thurston County and charged with attempting to elude a police vehicle and another count of possession of stolen property in the first degree. That resolved, Your Honor, in a guilty plea to possession of stolen property in the first degree, and he was sentenced to 57 months.

Now, the State considered this to be a violation. Mr. Romero has agreed to that. However, the State is not recommending the sentence that it could have in the agreement, mainly due to, Your Honor, in that there was some compliance, Your Honor, in that we did receive the Corvette back, and so I'm giving him consideration for that in making the sentence recommendation.

RP (Apr. 14, 2006) at 6-7.

Romero's defense counsel agreed that Romero had breached the plea agreement in all respects as the State had represented, with one exception — he disagreed that Romero did not return the Corvette intact.

[W]e're dealing with someone who has, unfortunately, had a difficult drug addiction. It's not an excuse; it's simply a fact that he's got to work on, and that's part of what's kind of been going on here. I think the Court's fully aware of that, but a great deal of time has been spent by the prosecutor's office and by us reaching what we feel to be a fair resolution under the circumstances.

RP (Apr. 14, 2005) at 10.

V. Sentencing

After the State and defense counsel informed the court about the new plea-agreement sentencing recommendation, the trial court asked if Romero would like to say anything. Reading from a prepared statement, Romero personally thanked Pierce County for helping him to come to terms with his drug addiction. He stated, "I'm very aware that the crimes that I've committed deserve consequences and wherever possible I would like to repair any damage I have caused to any person or property either through an offender mediation program or community service or community outreach." RP (Apr. 14, 2006) at 11. He also explained that he did the best he could to return the Corvette in an intact condition while he was released on his own recognizance. Romero made no complaints nor did he object in any way to the State's new agreed sentencing recommendation, which, clearly, no longer included the DOSA recommendation promised under the original March 2005 agreement.

Romero's father, Arnold Romero, testified, "[A] lot of [Romero's] crimes and problems were his drug addiction, and I believe that treatment would do him a lot better than a long prison sentence would." RP (Apr. 14, 2006) at 13. Romero's father also criticized the State for releasing Romero on his own recognizance on March 15, 2005, pending sentencing, because the State knew he had a past drug addiction and was likely to commit more crimes. In addition, Romero's father stated that, with his help, Romero had returned the Corvette and performed his portion of the original March 2005 plea agreement.

The trial court inquired whether counsel had "explored [treatment] options in their plea negotiations." The State responded affirmatively. The court advised Romero that the Department of Corrections offers inmates services such as Alcoholics Anonymous and Narcotics Anonymous.

The trial court then adopted the parties' joint sentencing recommendations and sentenced Romero to: (1) 120 months in prison and 9 to 12 months community custody for possession of methamphetamine with the intent to deliver under cause number 04-1-01423-1; (2) 57 months in prison for first degree possessing stolen property under cause number 04-1-05350-3; and (3) 57 months in prison for first degree theft under cause number 05-1-00347-4. The trial court further ordered that Romero serve these sentences concurrently with each other and consecutively to his sentence in Thurston County Superior Court cause number 05-1-01162-2.

VI. Appeal

Romero appealed his three guilty plea convictions and sentences. We consolidated his three appeals.

ANALYSIS

Romero argues that trial court erred in failing to conduct an evidentiary hearing to determine (1) whether he breached the March 2005 plea agreement by committing new crimes pending sentencing, by failing to appear for sentencing, and by failing to return the Corvette in good condition; and (2) whether the State breached the plea agreement by charging him with criminal conduct that had allegedly occurred before he signed the March 2005 plea agreement and by changing its sentencing recommendation in response to his breach without the signed written agreement of both parties.

The State counters that the doctrine of invited error precludes Romero's complaining on appeal that the trial court erred in accepting the parties' jointly-modified sentencing recommendations because he agreed in the trial court that he violated the March 2005 plea agreement and he agreed to the State's modified sentencing recommendations.

Romero responds that (1) although his attorney agreed that he (Romero) had not fully complied with the March 2005 plea agreement, the trial court did not ask him (Romero) to affirm in his own words that he had failed to comply with the plea agreement; (2) there was no written stipulation to the modified sentencing recommendation entered into the record below, contrary to the express terms of the March 2005 plea agreement; and (3) thus, the State failed to meet its burden to prove that he breached the March 2005 plea agreement.

We agree with the State. We also hold that Romero forgave and abandoned his assertion that the State breached the March 2005 plea agreement when he withdrew his motion to withdraw his guilty pleas and renegotiated the State's sentencing recommendation based on his acknowledged breaches of the plea agreement.

I. Breach of the Plea Agreement

A plea agreement is a contract between the State and the defendant. State v. Sledge, 133 Wn.2d 828, 838, 947 P.2d 1199 (1997). "Because they concern fundamental rights of the accused, constitutional due process considerations come into play. Due process requires a prosecutor to adhere to the terms of the agreement." Id. at 839. "The State fulfills its obligations if it acts in good faith and does not contravene the defendant's reasonable expectations that arise from the agreement." State v. McInally, 125 Wn. App. 854, 861-62, 106 P.3d 794, review denied, 155 Wn.2d 1022 (2005). But the State is not required to perform under the plea agreement if the defendant breaches the agreement's terms. Id. at 867. Such is the case here.

A. Contract Principles — Modification

Because the March 2005 plea agreement between Romero and the State is a contract, we analyze it under basic contract principles. See Sledge, 133 Wn.2d at 838. Under the basic principles of contract law, "[t]he right to modify a written contract by a subsequent oral one is unquestioned." Haley v. Brady, 17 Wn.2d 775, 788, 137 P.2d 505 (1943). Moreover, an attorney has the authority "[t]o bind his client in . . . an action . . . by his agreement duly made, or entered upon the minutes of the court." RCW 2.44.010; see also Graves v. P. J. Taggares Co., 94 Wn.2d 298, 303-04, 616 P.2d 1223 (1980); State v. Peeler, 7 Wn. App. 270, 274, 499 P.2d 90 (1972).

Here, on the record before the trial court, Romero's defense counsel agreed that Romero had breached the March 2005 plea agreement and, after consultation with Romero, his defense counsel agreed to the State's revised sentencing recommendation. Thus, on behalf of and acting under binding authority for Romero, Romero's counsel orally modified the March 2005 plea agreement on the record and agreed to the State's new sentencing recommendations.

B. Invited Error

A litigant cannot complain of an error to which he has assented: "The doctrine of invited error prohibits a party from setting up an error at trial and then complaining of it on appeal." In re Pers. Restraint of Thompson, 141 Wn.2d 712, 723, 10 P.3d 380 (2000) (citations omitted). Generally, when the defendant takes an affirmative, knowing, and voluntary action, we will apply the doctrine against him on appeal and hold that he has waived his challenge. Id. at 724.

Here, Romero withdrew his motion to withdraw his guilty pleas, agreed that he had breached the original March 2005 plea agreement, and negotiated with the State to reach a new mutually acceptable sentencing recommendation. In Romero's presence, both the State and Romero's counsel indicated that Romero was fully informed of these negotiations, understood them, admitted to having violated portions of his 2005 plea agreement, and believed the new sentencing recommendation agreement to be in his best interest.

Furthermore, when the trial court asked Romero whether he wanted to speak, Romero did not dispute the facts and sentencing recommendation new agreement that his counsel and the State had laid out for the court. Nor did he object that they had misrepresented his understanding of and concurrence in the new sentencing-recommendation agreement. On the contrary, Romero thanked Pierce County for helping him to come to terms with his drug addiction.

Accordingly, we reject Romero's argument on appeal that we should now allow him to withdraw his March 2005 guilty pleas. We hold that Romero waived any challenge to the trial court's authority to sentence him in accordance with the revised sentencing recommendations when he withdrew his motion to vacate his guilty pleas, abandoned his claim that the State had breached the March 2005 plea agreement, agreed that he had violated the March 2005 plea agreement, and agreed to the State's modification of its sentence recommendation in response to his breaches. See Thompson, 141 Wn.2d at 724.

Because we find this issue dispositive, we do not address Romero's other arguments on appeal.

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.

BRIDGEWATER, P.J., QUINN-BRINTNALL, J., concur.


Summaries of

State v. Romero

The Court of Appeals of Washington, Division Two
Aug 7, 2007
140 Wn. App. 1002 (Wash. Ct. App. 2007)
Case details for

State v. Romero

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. MATTHEW KAYNE ROMERO, Appellant

Court:The Court of Appeals of Washington, Division Two

Date published: Aug 7, 2007

Citations

140 Wn. App. 1002 (Wash. Ct. App. 2007)
140 Wash. App. 1002