Opinion
No. 22289-6-III
Filed: December 16, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Garfield County. Docket No. 03-1-00003-9. Judgment or order under review. Date filed: 07/03/2003. Judge signing: Hon. William D Acey.
Counsel for Appellant(s), Donald G. Miller, Attorney at Law, 422 W Riverside Ave Ste 518, Spokane, WA 99201-0302.
Counsel for Respondent(s), William M. Berg, Attorney at Law, 316 N Second Ave Ste B, Sandpoint, ID 83864-7994.
John R. Henry, Attorney at Law, Depot Bldg, PO Box 820, Pomeroy, WA 99347-0820.
Erik Elsom-Van Vogt pleaded guilty to one count of first degree rape of a child and one count of first degree child molestation as part of a plea agreement. The prosecutor represented to the court that he agreed to recommend sentencing under the Special Sex Offender Sentencing Alternative (SSOSA) if an evaluation determined that Mr. Van Vogt was amenable to treatment. Even though Mr. Van Vogt was found to be amenable to treatment, the prosecutor failed to recommend the SSOSA alternative based on his reading of the written terms of the plea agreement. Mr. Van Vogt appeals, contending the prosecutor breached the plea agreement by not adhering to the terms of the agreement and by undercutting the promised recommendation. Alternatively, Mr. Van Vogt maintains the court abused its discretion by denying a SSOSA. Pro se, Mr. Van Vogt asserts the sentencing judge violated numerous provisions of the Code of Judicial Conduct. We conclude the State breached its plea agreement with Mr. Van Vogt by failing to adhere to the conditions in the agreement and by undercutting the promised recommendation. For that reason, we reverse and remand for a hearing to determine whether Mr. Van Vogt elects to withdraw his plea or to seek specific enforcement of the plea agreement and resentencing before a different judge.
FACTS
Erik Russel Elsom-Van Vogt confessed to multiple acts of oral sex upon N.V. who was under seven at the time the incidents took place. Mr. Van Vogt was then charged with one count of first degree rape of a child and one count of first degree child molestation.
May 12, 2003 Hearing. At a hearing on May 12, 2003, the court considered the parties' joint motion for a psycho/sexual evaluation and Mr. Van Vogt's change of plea as a result of a plea agreement. After the hearing, the plea agreement and an order for a psycho/sexual evaluation were entered. At this hearing, the court asked the prosecutor whether he would object to the motion for a SSOSA evaluation. The following exchange took place:
MR. HENRY: In fact, Your Honor, I am promoting the motion for evaluation. It will be my recommendation at sentencing, if he is found amenable to treatment, that the court consider a SSOSA alternative for him.
THE JUDGE: Mr. Phelps, I mentioned briefly in passing to your client outside your presence in court last Thursday, I want him to understand that just because an evaluator finds somebody amenable to treatment does not necessarily mean the court automatically grants the SSOSA alternative, that the court is required to go through a discretionary exercise outlined in the appropriate statute.
MR. PHELPS: Judge, he understands that. We had that discussion pretty thoroughly downstairs ourselves.
THE JUDGE: Excellent. I have before me the plea agreement. Mr. Phelps, is that your understanding of the plea agreement, sir?
MR. PHELPS: Yes, Your Honor.
THE JUDGE: Mr. Elsom Van-Vogt [sic], is this your understanding of the plea agreement?
MR. VAN-VOGT [sic]: Yes, Your Honor.
Report of Proceedings (RP) (May 12, 2003) at 4-5 (emphasis added).
The court then ascertained that Mr. Van Vogt had read and understood the plea agreement.
(a) Terms of the Plea Agreement. Contrary to the representations expressed by the prosecutor and defense counsel, Article 1.3 of the plea agreement signed by Mr. Van Vogt contained the following provision:
The State recommends that the defendant be sentenced as a sex offender who is eligible for the special sentencing alternative if the court determines that the special sex offender sentencing alternative is appropriate; and that the defendant should be sentenced to a term of confinement [of 131 months on count I and 75 months on count II].
Clerk's Papers (CP) at 76 (emphasis added). Based on the agreement, Mr. Van Vogt entered a guilty plea. The court ordered a psycho/sexual evaluation and a presentencing report.
(b) Motion and Order for a Psycho/Sexual Evaluation. The prosecutor filed a motion for order of psycho/sexual evaluation. Defense counsel and Mr. Van Vogt signed the motion for a psycho/sexual evaluation. In this motion, the parties requested an order directing Mr. Van Vogt to undergo a psycho/sexual evaluation by Stephen E. Lindsley 'or another qualified expert in the area of sex offender evaluations, to determine if the Defendant is amenable to treatment, for purposes of the Special Sex Offender Sentencing Alternative.' CP at 58.
In its order granting this motion, the court ordered that sentencing would be continued 'until a psycho/sexual evaluation of the Defendant can be conducted to determine the Defendant's amenability to treatment.' CP at 56. Additionally, the court ordered that the evaluation should be conducted by Mr. Lindsley 'or another qualified expert in the area of sex offender evaluations.' CP at 56.
Psycho/Sexual Evaluation. The psycho/sexual evaluation was conducted by Stephen Lindsley, a certified sex offender treatment provider and licensed mental health counselor. During his two interviews with Mr. Lindsley, and in earlier interviews with police, Mr. Van Vogt disclosed that he had been having sexual contact with his adoptive brother, N.V, for three or four years. N.V. was approximately three or four years old when the abuse began. In the information filed in this case, Mr. Van Vogt was charged based on incidents that occurred between January 1, 2002, and December 31, 2002. Additionally, in his interview with Mr. Lindsley, Mr. Van Vogt disclosed sexual contact with his adoptive sister when she was approximately five years old.
Mr. Lindsley submitted an 18-page report to the court, concluding that Mr. Van Vogt was amenable to specialized sex offender outpatient treatment. This report was based on two interviews with Mr. Van Vogt, the results of a battery of tests, a review of police reports, transcribed statements, and other data.
In addition to concluding that Mr. Van Vogt was amenable to treatment, Mr. Lindsley also concluded that Mr. Van Vogt was in the low moderate range for sexually reoffending. Mr. Lindsley explained that, based on the information available, offenders in Mr. Van Vogt's group demonstrated a recidivism rate of 12 percent in a five-year period. Based on their interviews, Mr. Lindsley described Mr. Van Vogt as being open, honest, and capable of empathy for others. Furthermore, Mr. Lindsley expressed his opinion that: 'It is anticipated [Mr. Van Vogt] would be very compliant in following the conditions of treatment as well as any probation.' CP at 42.
Presentencing Report. In contrast to Mr. Lindsley's report, the community corrections officer, Kevin H. Vogeler, filed a seven-page report, stating that he believed that Mr. Van Vogt 'seems to be a relatively high risk person to reoffend, given his history.' CP at 25 (emphasis added). Apparently Mr. Vogeler's conclusion regarding Mr. Van Vogt's risk to reoffend was not based on statistical data, even though Mr. Vogeler had read Mr. Lindsley's report. Mr. Vogeler recommended a standard range sentence instead of a SSOSA. Mr. Vogeler did conduct two interviews with Mr. Van Vogt and, as with Mr. Lindsley, Mr. Van Vogt discussed the sexual conduct with his sister and the additional contacts with his brother.
When stating his conclusion that Mr. Van Vogt should be sentenced to confinement, Mr. Vogeler explained that:
I believe a lot has come out during the time period since that plea hearing. Mr. Van Vogt has admitted to additional sexual contact with his brother as well as revealed that he had numerous sexual contacts with his sister too.
CP at 25 (emphasis added).
Sentencing Hearing. At the sentencing hearing, the prosecutor did not make a recommendation for a SSOSA. Instead, the prosecutor listed the various factors the court could consider in determining whether a SSOSA was appropriate. The prosecutor stated:
When Mr. Van-Vogt [sic] pled guilty, Your Honor, it was pursuant to a plea agreement that was executed by myself, by defense counsel and by Mr. Van-Vogt [sic]. In that plea agreement, the state agreed that we would recommend this court consider Mr. Van-Vogt [sic] for the SSOSA alternative, if the court determines that the SSOSA was appropriate.
RP (July 9, 2003) at 7 (emphasis added). The prosecutor also pointed out that the court had several factors to consider: the SSOSA evaluation, the presentencing report, a statement by the crime victim's advocate, and a statement by the county sheriff.
The prosecutor then spent a considerable amount of time detailing what he perceived to be internal contradictions in Mr. Lindsley's evaluation. The prosecutor asked the court to consider other things, including Mr. Vogeler's report. The prosecutor did not point out any internal inconsistencies in this report, or any inconsistencies between this report and Mr. Lindsley's evaluation. The prosecutor also told the court that the community corrections officer's report 'speaks for itself in that he found that the defendant was deceptive, . . . not capable of expressing the entire truth, . . . appeared to be manipulative, and based upon that, it was Mr. Vogler's [sic] feeling that — that this wasn't an appropriate situation for SSOSA.' RP (July 9, 2003) at 11.
At one point, when discussing letters of support for Mr. Van Vogt, the prosecutor stated:
A person in his position, who has pled guilty to the crimes which he has pled guilty to, will need a support base. There's no question about it.
But what I feel really saddened by, by all of those letters is that there's absolutely no expression of concern for the victims. I don't see in any of those letters an expression: I'm going to look out for the victim. I'm going to make sure that the victim is taken care of. I'm going to do this. It's all, I am going to do this for Erik, for Mr. Van-Vogt [sic].
Something's seriously wrong with that. I think probably what is wrong with that, that the people writing those letters don't really know the facts. They don't really appreciate the seriousness and the gravity of the offenses which Mr. Van-Vogt [sic] has committed. And they don't know what his potential is in the community.
But it deeply saddens me that people write those kind of letters, and they overlook concern for victims in this matter.
And they have to be mine. I know Mr. Phelps, they're yours, they are everybody's primary concern is the victims.
Whatever this court does today in sentencing Mr. Van-Vogt [sic] is going to have an impact. There's no question about it, one way or the other, but if we don't look out for those victims, and I try to address the concerns of those victims, then that's a serious factor that the court has overlooked.
RP (July 9, 2003) at 12-13.
Court's Sentencing Decision. The court concluded that an alternative sentence was not appropriate given Mr. Van Vogt's repeated sexual contact with N.V. The court told Mr. Van Vogt that he had 'to pay your debt to society, and I think it would be a gross miscarriage of justice to allow you 90 days in jail, under the facts of this case, of repeated, repeated sexual contacts that you had with N.V. over what . . . looks like a five or six year period.' RP (July 9, 2003) at 34. Acknowledging that the sentences had to run concurrently, the court stated: 'I want to give you an exceptional sentence so bad I can't see straight. I want to give you two 240 months in the joint, because I think that is what you deserve.' RP (July 9, 2003) at 36-37.
Mr. Van Vogt was sentenced to a standard range sentence of 160 months on count I and 89 months for count II, to be served concurrently. He appeals.
ANALYSIS
Mr. Van Vogt contends the State breached the plea agreement. He did not raise this question before the trial court, but he may raise this issue here because the question has constitutional magnitude. RAP 2.5(a); State v. Walsh, 143 Wn.2d 1, 7, 17 P.3d 591 (2001); State v. Sledge, 133 Wn.2d 828, 839, 947 P.2d 1199 (1997); State v. Van Buren, 101 Wn. App. 206, 212, 2 P.3d 991 (2000).
Plea agreements are contracts between the defendant and the prosecutor that are generally analyzed under basic contract principles. Sledge, 133 Wn.2d at 838. But because plea agreements implicate fundamental constitutional rights of the accused, the defendant's contract rights implicate due process considerations. Id. at 839. As a result, '[d]ue process requires a prosecutor to adhere to the terms of the agreement.' Id. Equally important, '[p]lea agreements, by their nature, tend to be less formal and rely more on implicit understandings of the State and criminal defendants and their attorneys than do contracts in a commercial context.' State v. Oliva, 117 Wn. App. 773, 779, 73 P.3d 1016 (2003), review denied, 151 Wn.2d 1007 (2004). For this reason, 'the terms of an agreement are generally defined by what the defendant understood them to be when he or she entered into the plea agreement.' Id. (citing State v. Cosner, 85 Wn.2d 45, 51-52, 530 P.2d 317 (1975)).
With these distinctions in mind, we apply contract principles when construing plea agreements. See State v. Wheeler, 95 Wn.2d 799, 803, 631 P.2d 376 (1981). The goal of contract interpretation is to ascertain and give effect to the intent of the parties. See Berg v. Hudesman, 115 Wn.2d 657, 667, 801 P.2d 222 (1990). Courts accomplish this by viewing "the contract as a whole, the subject matter and objective of the contract, all the circumstances surrounding the making of the contract, the subsequent acts and conduct of the parties to the contract, and the reasonableness of respective interpretations advocated by the parties." Berg, 115 Wn.2d at 667 (quoting Stender v. Twin City Foods, Inc., 82 Wn.2d 250, 254, 510 P.2d 221 (1973)).
'The prosecutor has a duty not to explicitly undercut the terms of the agreement or evidence an intent to circumvent the terms.' State v. Harris, 102 Wn. App. 275, 280-81, 6 P.3d 1218 (2000), aff'd sub nom. State v. Sanchez, 146 Wn.2d 339, 46 P.3d 774 (2002). 'The prosecutor is obliged to make the promised sentencing recommendation but need not do so enthusiastically.' Harris, 102 Wn. App. at 281. But the prosecutor must make it, and do so in good faith, not holding back any relevant information.
RCW 9.94A.460; State v. Jerde, 93 Wn. App. 774, 780, 970 P.2d 781 (1999) (quoting State v. Talley, 134 Wn.2d 176, 183, 949 P.2d 358 (1998)). Also, the court is not bound by the plea agreement. Harris, 102 Wn. App. at 281; see RCW 9. 94A.431. But, if the prosecution breaches its promise under an executed plea agreement — and the defendant pleads guilty on a false premise — the conviction cannot stand. Harris, 102 Wn. App. at 280 (quoting Sledge, 133 Wn.2d at 839-40).
Mr. Van Vogt contends the State breached the plea agreement by failing to adhere to the conditions in the agreement and by undercutting the promised recommendation.
Failure to Adhere to the Terms of the Plea Agreement. The State argues that the terms of the plea agreement did not provide for, or require that, the State make an explicit or unequivocal recommendation for SSOSA. This argument is disingenuous at best. Plea agreements are less formal and, applying Berg, we interpret contracts to ascertain the intent of the parties. At the May 12 hearing, the prosecutor represented to the court that: 'I am promoting the motion for evaluation. It will be my recommendation at sentencing, if he is found amenable to treatment, that the court consider a SSOSA alternative for him.' RP (May 12, 2003) at 4. Although the written plea bargain is less detailed, this statement by the prosecutor, along with the joint recommendation for a psycho/sexual evaluation, evinces the parties' intent that the plea agreement was based on the understanding that the prosecutor would make a recommendation that the court consider a SSOSA alternative if Mr. Van Vogt was found amenable to treatment.
The State argues that the plea agreement must be interpreted based only on the language of Article 1.3 of the plea agreement. We reject this argument in light of a recent case, In re Personal Restraint of Lord, 152 Wn.2d 182, 94 P.3d 952 (2004). In that case, Mr. Lord filed a personal restraint petition asserting the prosecutor breached the plea agreement when she failed to recommend that he receive a partially-suspended sentence conditioned on a SSOSA. Id. at 184. Under the plea agreement, it appeared that the prosecutor agreed that Mr. Lord receive a partially-suspended sentence on the condition that he received a SSOSA. Id. at 184-85. Specifically, the plea agreement stated that the defendant receive a suspended sentence on the ''condition' of his 'successfully [sic] treatment per SSOSA.'' Id. at 191.
The court first noted that nothing in the plea agreement supported the conclusion that Mr. Lord must first obtain a SSOSA from the sentencing court before the prosecutor had an obligation to make a sentencing recommendation. Second, the court determined the parties' intent by examining their conduct prior to the hearing on the plea agreement, and the statements made by the prosecutor and the court at the hearing. Id. at 191-92. The court concluded that the parties clearly understood that the prosecutor's recommendation for a partially-suspended sentence depended on Mr. Lord's eligibility for a SSOSA. Id. at 192.
Here, the plea agreement appears to require that the court determine that the special sex offender sentencing alternative be 'appropriate' before the prosecutor was required to recommend that Mr. Van Vogt be sentenced as a 'sex offender who is eligible for the special sentencing alternative.' CP at 76. Nothing in this provision indicates that Mr. Van Vogt must obtain a SSOSA before the prosecutor was required to make a sentencing recommendation. Moreover, as in Lord, the parties' conduct and statements at the May 12 hearing establish the parties' understanding that the prosecutor's recommendation depended on whether Mr. Van Vogt was found to be amenable for treatment. In addition to the representations made by the prosecutor, the parties presented a joint motion for a psycho/sexual evaluation.
The State contends that this court should interpret the plea agreement solely by examining the conduct of the parties at the sentencing hearing, rather than the statements made at the May 12 hearing. To support this argument, the State points out that defense counsel did not object when the prosecutor set out the terms as contained in the agreement.
But this limited inquiry is contrary to Berg and Lord. And, this limited inquiry is inappropriate in the context of analyzing the terms of a plea agreement. First, Berg directs us to evaluate several factors when ascertaining the intent of the parties. Second, a defendant gives up valuable due process rights when entering into a plea agreement and the prosecutor has an ethical and professional duty to fulfill his or her part of the bargain. Third, the State's argument is untenable in light of this record. At the May 12 hearing, the prosecutor detailed the terms of the plea agreement in open court — and then took the first step toward fulfilling his duties under the agreement by promoting the motion for a psycho/sexual evaluation.
Although we conclude that the terms of the prosecutor's agreement are obvious from the representations he made to the court at the May 12 hearing, Berg also directs us to look at the reasonableness of the interpretations advanced by the parties. The State interprets the plea agreement to provide merely that it would recommend the court consider Mr. Van Vogt for the SSOSA alternative, if the court determined that the SSOSA was appropriate. But adopting the limited interpretation urged by the State would lead us to conclude that Mr. Van Vogt entered into a plea agreement in which he received nothing in return for his guilty plea. Under the State's interpretation, the prosecutor had no duty but to recommend the SSOSA after the court determined that Mr. Van Vogt should be sentenced to the SSOSA. A court cannot give effect to interpretations that would render contract obligations illusory. State v. Wilson, 102 Wn. App. 161, 168, 6 P.3d 637 (2000).
The State argues that Mr. Van Vogt received valuable consideration for his bargain because the prosecutor recommended a specified term of confinement and recommended a SSOSA evaluation, but this is only part of the agreement detailed at the May 12 hearing.
Relying on State v. E.A.J., 116 Wn. App. 777, 67 P.3d 518 (2003), review denied, 150 Wn.2d 1028 (2004), the State suggests that this court cannot interpret the plea agreement because contract interpretation is a question of fact that must be determined by the trial court. However, remand to the trial court for contract interpretation is required only when the precise act the claimant seeks to compel is not clearly ascertainable. Here, the act in question is easily ascertainable based on the record from the May hearing.
Undercutting the Promised Recommendation. Mr. Van Vogt contends that the prosecutor breached the plea agreement by undercutting the promised recommendation. The State maintains that the prosecutor was free to comment on the results of the psycho/sexual evaluation because there was no explicit provision requiring the prosecutor to make a SSOSA recommendation. We conclude that the prosecutor breached his duty under the plea agreement by not adhering to its terms. In addition, we also conclude that the prosecutor clearly undercut his agreement to make the promised recommendation.
In summary, the prosecutor here breached the plea agreement by failing to recommend a SSOSA alternative when Mr. Van Vogt was found to be amenable for treatment.
Remedy. After a party breaches the plea agreement, the nonbreaching party may either rescind or specifically enforce it. State v. Miller, 110 Wn.2d 528, 536, 756 P.2d 122 (1988). As a result, we remand to the trial court for a hearing to determine Mr. Van Vogt's election. If Mr. Van Vogt elects to have the plea agreement specifically enforced, he is entitled to a new hearing in front of a different judge and the State must present the agreed-upon recommendation without equivocation — unless the State can show compelling reasons exist to disallow his choice. See State v. Van Buren, 101 Wn. App. 206, 217-18, 2 P.3d 991 (2000); State v. Morley, 35 Wn. App. 45, 48, 665 P.2d 419 (1983).
We reverse and remand for a hearing to determine whether Mr. Van Vogt elects to withdraw his plea or to seek specific enforcement of the plea agreement and resentencing before a different judge.
The majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, A.C.J. and BROWN, J., concur.