                                                                FILED 

                                                              APRIL 9, 2013 

                                                       In the Office of the Clerk of Court 

                                                     W A State Court of Appeals, Division III 




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                         )         No. 30302-1-III
                                             )
                    Respondent,              )
                                             )
             v.                              )         UNPUBLISHED OPINION
                                             )
PHILLIP SHERMAN INGRAM,                      )

                                             )

                    Appellant.               )


      KULIK, J. -   Phillip Ingram pleaded guilty to second degree child rape and third

degree child molestation. On appeal, he contends that his guilty plea is invalid because

the State breached the terms of his plea agreement. He maintains that the State undercut

the agreement by suggesting that he was not eligible for a special sex offender sentencing

alternative (SSOSA), RCW 9.94A.670, even though he was found to be amenable to

treatment. We agree the State undercut the terms of the agreement and remand to allow

Mr. Ingram to choose to withdraw his plea or seek specific performance of the agreement.
No.30302-1-III
State v. Ingram


                                          FACTS

         Around 10:30 p.m. on New Year's Eve, 14-year-old SMC went to the home of her

friend, 13-year-old BMB. The girls were joined by two young men, CDM and KLG.

BMB telephoned John Clendaniel, who agreed to buy liquor for her and her friends.

After getting the liquor, the four young people drove to Phillip Ingram's apartment. One

ofthe young people knew Mr. Ingram's roommate, but none claimed to know Mr.

Ingram. At the apartment, they consumed the liquor provided by Mr. Clendaniel and

liquor found in Mr. Ingram's apartment. Over the course of the night, Mr. Ingram

allegedly had sexual contact with BMB and SMC.

         Mr. Ingram was charged with one count of second degree rape of a child, third

degre~   child molestation, and furnishing alcohol to a minor. Mr. Ingram pleaded guilty to

the charges of second degree rape and third degree child molestation. In return, the State

agreed to recommend dismissal of the count of furnishing alcohol to a minor and to

recommend a SSOSA if the defendant was found amenable to treatment. At the plea

hearing, the court informed Mr. Ingram, "I see the State's going to recommend SSOSA

... if you are found to be amenable to treatment. There will have to be a report prepared

by [Department of Corrections (DOC)] and then they'll make a recommendation."




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No. 30302-1-111
State v. Ingram


Report of Proceedings (RP) (June 27, 2011) at 5. The court ordered a SSOSA evaluation

and a presentence investigation report (PSI).

       A psychosexual evaluation was completed to determine Mr. Ingram's suitability

for a SSOSA. Dr. Ronald Page, a clinical psychologist, recommended that Mr. Ingram

may be a suitable candidate for a SSOSA and an acceptable risk in the community. Dr.

Page determined that there was little known history to suggest that Mr. Ingram was

predatory, and that his crime appeared to be situationally provoked and opportunistic. Dr.

Page suggested treatment that would help Mr. Ingram understand his social

responsibilities. Dr. Page concluded that any penal confinement should be for

punishment purposes. He did not believe that confinement for community protection was

justifiable based on the information available to him.

       The DOC completed a PSI subsequent to Dr. Page's report. The PSI concluded

that Mr. Ingram was not eligible for a SSOSA because he did not admit responsibility for

the crimes, he did not have a prior relationship with the victims as required by the SSOSA

guidelines, and the victims and their families did not support the sentence. The PSI

recommended a standard range sentence.




                                                3

No. 30302-1-111
State v. Ingram


       At the sentencing hearing, the State acknowledged to the court that it entered into a

plea agreement to recommend a SSOSA ifMr. Ingram was amendable to treatment and

that Dr. Page determined that Mr. Ingram was amenable. Nevertheless, the State

indicated that it had reservations about the amenability determination because the

information gathered through the DOC investigation indicated the opposite. The State

pointed out that Mr. Ingram did not take responsibility for his actions and blamed the

victims. The State concluded, "Dr. Page says, yes, he is amenable, so the State will

follow that ruling, or his reasoning. But if you look at everything else, it's-just almost

flies in the face, and I don't know if I strictly have to go by what Dr. Page, or I can look at

everything and say, yes, he is amenable, no, he is not. But I will stay with it because Dr.

Page thinks he might be able to work with him. But everything else frightens me."

RP (Sept. 8,2011) at 9.

       The trial court responded, "Well, I'm accepting your recommendation as being for

[a] SSOSA." RP (Sept. 8,2011) at 9.

       The court heard testimony from one of the victim's family expressing their

disapproval of a SSOSA. The court also heard from a DOC corrections officer who

stated that Mr. Ingram was not eligible for a SSOSA because he did not have a prior

relationship with the victim. The DOC officer also pointed out that the victim's opinion


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No.30302-1-III
State v. Ingram


should be given weight in detennining whether to grant a SSOSA and that the victim's

family opposed the SSOSA.

       Ultimately, the trial court found that Mr. Ingram did not qualify for a SSOSA

under the SSOSA statute. The court found that Mr. Ingram did not make a clear

statement of responsibility for the crime, that Mr. Ingram did not have an established

relationship with the victim as required by the SSOSA statute, and that a SSOSA sentence

was not appropriate in light of the victim's opinions. The trial court sentenced Mr.

Ingram to a standard range sentence.

       Mr. Ingram appeals. He contends that the State breached the tenns of the plea

agreement by suggesting that Mr. Ingram was not eligible for a SSOSA.

                                       ANALYSIS

       "Because a plea agreement is a contract, issues concerning the interpretation of a

plea agreement are questions oflaw reviewed de novo." State v. Bisson, 156 Wn.2d 507,

517, 130 P.3d 820 (2006).

       In plea agreements, fundamental rights of the accused are at stake, and "[d]ue

process requires a prosecutor to adhere to the tenns of the [plea] agreement." State v.

Sledge, 133 Wn.2d 828, 839, 947 P.2d 1199 (1997). "The State fulfills its obligations if it

acts in good faith and does not contravene the defendant's reasonable expectations that



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No. 30302-1-111
State v. Ingram


arise from the agreement." State v. McInally, 125. Wn. App. 854, 861-62, 106 P.3d 794

(2005).

       While the State does not have a duty to make the recommendation enthusiastically,

the State does have a related duty not to undercut the tenns of the agreement either

"explicitly or by conduct evidencing an intent to circumvent the tenns of the plea

agreement." Sledge, 133 Wn.2d at 840. The test to detennine breach of a plea agreement

is whether the words and actions of the State, when viewed objectively, contradict a

promise. Id.

       A defendant has a choice of remedy when the State breaches a plea agreement.

State v. Van Buren, 101 Wn. App. 206, 217, 2 P.3d 991 (2000) (quoting State v. Jerde, 93

Wn. App. 774, 782-83, 970 P.2d 781 (1999)). The defendant is entitled to either

withdraw his plea, or seek specific enforcement of the State's agreement. Id. A choice of

specific perfonnance entitles a defendant to a new sentencing hearing in front of a

different judge who has the discretion to accept or reject the State's recommendation.

Id. at 218. A defendant's right to either remedy exists even though the sentencing judge

was not bound or influenced by the prosecutor's recommendation. In re Pers. Restraint

ofJames, 96 Wn.2d 847, 850, 640 P.2d 18 (1982).




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No.30302-1-III
State v. Ingram


       A SSOSA allows certain first time sex offenders (0 receive a suspended sentence.

RCW 9.94A.670. The SSOSA provision "was intended to be used for those offenders

who had committed less serious crimes and who were thought to be amenable to

treatment." State v. Goss, 56 Wn. App. 541, 544, 784 P.2d 194 (1990).

       An offender is eligible for a SSOSA if all the criteria listed in RCW 9.94A.670(2)

are met. RCW 9.94A.670. One of the two of the criteria applicable to this situation is

that, "(a) ... the offender must, as a part of his or her plea of guilty, voluntarily and

affirmatively admit he or she committed all of the elements of the crime to which the

offender is pleading guilty." RCW 9.94A.670(2). The other criteria applicable here is

that, "(e) The offender had an established relationship with, or connection to, the victim

such that the sole connection with the victim was not the commission of the crime."

RCW 9.94A.670(2).

       If the court deems an offender eligible, an evaluation may be ordered to determine

if an offender is amenable to treatment. RCW 9.94A.670(3). "The examiner shall assess

and report regarding the offender's amenability to treatment and relative risk to the

community." RCW 9.94A.670(3)(b).




                                               7

No.30302-1-III
State v. Ingram


       Examinations and treatment are to be conducted by certified sex offender

providers or certified affiliate sex offender providers, unless the court finds an exception

as stated in RCW 9.94A.670(13)(a) or (b). '''Certified sex offender treatment provider'

means a licensed, certified, or registered health professional who is certified ... to

examine and treat sex offenders pursuant to chapters 9.94A and 13.40 RCW and sexually

violent predators under chapter 71.09 RCW." RCW 18.155.020(1).

       After receipt ofthe reports, the court determines whether a SSOSA is a suitable

sentence for the offender. RCW 9.94A.670(4). "[T]he court shall consider whether the

offender and the community will benefit from use of this alternative, consider whether the

alternative is too lenient in light of the extent and circumstances of the offense, consider

whether the offender has victims in addition to the victim of the offense, consider whether

the offender is amenable to treatment, consider the risk the offender would present to the

community, to the victim, or to persons of similar age and circumstances as the victim,

and consider the victim's opinion whether the offender should receive a treatment

disposition under this section." RCW 9.94A.670(4). Further, the court shall give great

weight to the victim's opinion with respect to granting a SSOSA. RCW 9.94A.670(4).

       Mr. Ingram contends that the State undercut the terms of the agreement by

expressing reservations that Mr. Ingram may not be eligible for a SSOSA. The State


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No.30302-1-III
State v. Ingram


counters by contending that it did not undercut the agreement by mentioning the PSI.

Instead, the State maintains that it was inquiring into the court's interpretation of the

agreement, specifically the finding of amenability. The State argues that the court's

referral to the PSI in the plea hearing suggests that it was the preferred source for

determining amenability, and Mr. Ingram was not amenable because he did not

acknowledge his responsibility to the PSI evaluator.

       The State also argues that it did not breach the plea agreement as evidenced by the

trial court's verbal acceptance of the State's SSOSA recommendation. The State

maintains that the court compartmentalized the statements regarding clarification from the

recommendation for a SSOSA.

       The State's contentions fail. The State had a duty to recommend the SSOSA as

part of the plea agreement after Mr. Ingram was found to be amenable to treatment. The

findings in the PSI did not relieve the State of its duty. First, Dr. Page's report controlled

the determination of amenability. Even though the plea agreement did not define

amenability or the source of the amenability determination, it is reasonable for an

offender to assume that such a finding would be made by the clinical psychologist whose

purpose was to determine amenability. If the State wished for clarification regarding the




                                              9

No. 30302-1-111
State v. Ingram


plea agreement, it should have expressly asked for clarification before making its

recommendation.

       Second, the PSI was not applicable to the sentencing recommendation because the

PSI did not address amenability. Instead, the PSI expressly addressed Mr. Ingram's

eligibility for a SSOSA. For instance, the PSI's findings regarding Mr. Ingram's lack of

responsibility quoted the section of the SSOSA statute that addresses eligibility. The

PSI's determination of eligibility was separate and distinct from a determination of

amenability. The only report that specifically addressed Mr. Ingram's amenability,

meaning his treatment and risk to reoffend, came from Dr. Page.

       Last, the State's use of the eligibility findings to challenge Mr. Ingram's

amenability was inappropriate. The State could not take portions of the PSI related to

eligibility and use them to cast doubt on Dr. Page's conclusion that Mr. Ingram was

amenable to treatment. The information contained in the PSI was to be considered by the

trial court in making a fmal determination of whether a SSOSA sentence was appropriate

under the circumstances.

       We determine that the State undercut the terms of the plea agreement by

suggesting that a SSOSA sentence was not appropriate, even though Mr. Ingram was

found amenable to treatment by Dr. Page, a clinical psychologist. It is irrelevant that the


                                             10 

No.30302-1-III
State v. Ingram


trial court accepted the State's recommendation for a SSOSA, as the State's actions still

undermined the agreement. On remand, Mr. Ingram may choose to withdraw his plea or

seek specific enforcement of the State's agreement.

       A 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




                                                   J~~~
RCW 2.06.040.


                                          Kulik,                       .

WE CONCUR:




~+--,----=Ct:I:"'-L---_
Korsmo, C.J.




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