                                                                         FILED 

                                                                      APRIL 28, 2015 

                                                               In the Office of the Clerk of Court 

                                                              WA State Court of Appeals, Division III 


                                                                                                          I
           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 
                                           I
                              DIVISION THREE 

                                                                                                          r
                                                                                                          i
                                                                                                          i
STATE OF WASHINGTON,                         )                                                            I
                                                                                                          i


                    Respondent,
                                             )
                                             )
                                             )
                                                       No. 31970-9-111
                                                       (consolidated with
                                                       No. 31971-7-111)
                                                                                                          I
                                                                                                          t

      v.                                     )
                                             )
                                                                                                          I
TONY ALLEN BARCLAY,                          )         UNPUBLISHED OPINION
                                             )
                    Appellant.               )

      KORSMO,    J. - This is the second time this case has been before this court.

Unfortunately, we must send the case back for a third sentencing proceeding.

                                         FACTS

      Tony Barclay pleaded guilty to charges of second degree burglary and third degree

theft under one file and one count of second degree assault under a second file in
                                                                                                          I
accordance with a plea agreement. Different prosecutors were involved in the two cases.                   I
The parties jointly recommended concurrent sentences of 51 months on the burglary and                     I
                                                                                                          ~
69 months on the assault charge. However, the trial court imposed sentences of 60 and
                                                                                                          t
84 months, respectively, and appeared to order that they be served consecutively.
                                                                                                          I
      On appeal, this court affirmed the two convictions, but reversed the sentences and

remanded "for resentencing" because it was unclear if the court intended consecutive
                                                                                                          II
                                                                                                          t
                                                                                                          i
No. 31970-9-III; 31971-7-III
State v. Barclay


sentences (permissible as an exceptional sentence) or concurrent sentences.] See No.

30475-2-III (cons. with No. 30477-9-III; filed April 18, 2013) at 1,7. The matter

proceeded to a second sentencing hearing before a new judge since the original trial judge

had retired.

         Defense counsel asked the court to impose the originally recommended sentences.

One of the prosecutors concurred that their recommendation was "as [defense counsel]

indicated in both cases." Report of Proceedings (RP) at 26. The other prosecutor,

however, indicated that "the State's position is that we simply keep the same amount of

time originally imposed." RP at 3 1. Both prosecutors also told the court that the purpose

of the hearing was solely to correct the consecutive/concurrent sentence problem. RP at

26,30.

         The court imposed concurrent sentences of 60 and 84 months. Mr. Barclay again

timely appealed to this court.

                                       ANALYSIS

         Mr. Barclay contends that the prosecutors breached the plea agreement by

advising that the court was only to correct the concurrent/consecutive sentence problem,

thereby effectively recommending the higher sentences imposed by the initial trial judge



        We also noted that the court appeared to use an incorrect offender score on the
         I
burglary charge. See State v. Barclay, noted at 174 Wn. App. 1042, slip op. at 6-7
(2013).

                                             2

No. 31970-9-111; 31971-7-111
State v. Barclay


instead of the lower figures required by the plea agreement. We need not decide whether

they did breach the agreement because their apparent confusion, even if not shared by the

trial judge, justifies a remand for a new sentencing hearing-the same remedy that Mr.

Barclay asks us to apply if we find a breach of the agreement.

       Plea agreements are contracts that both sides must live up to. State v. Sledge, 133

Wn.2d 828,838-39,947 P.2d 1199 (1997). Prosecutors also have a due process

obligation to comply with the terms of the plea agreement. Id. at 839. That requires the

prosecutor to make "the promised sentencing recommendation" even though she need not

do so with enthusiasm. Id. at 840. The prosecutor also must not undercut or attempt to

circumvent the agreement. Id. at 840-41. The due process protection exists even as to

negligent failings by the prosecutor. E.g., Santobello v. New York, 404 U.S. 257, 260-63,

92 S. Ct. 495, 30 L. Ed. 2d 427 (1971).

       When there is a breach of a plea agreement, the defendant has the option of

withdrawing his guilty plea or seeking specific performance of the agreement. State v.

Barber, 170 Wn.2d 854, 855,248 P.3d 494 (2011). Specific performance gives the

parties the benefit of their bargain. Id. at 859. The remedy of specific performance is not

available in cases of mutual mistake by the parties. Id. at 873-74.

       Mr. Barclay argues that the prosecutor undercut the agreement by telling the trial

court that the sole purpose of the hearing was to correct the consecutive sentence problem

and that he is entitled to specific performance of the plea agreement. It is a debatable

                                             3

No. 31970-9-III; 31971-7-III
State v. Barclay


argument whether there was an actual breach of the plea agreement in light of the facts

that (1) the trial judge appeared to understand that he had full resentencing authority and

(2) one of the prosecutors confirmed that the plea agreement sentence recommendations

were as the defense attorney stated. While complaining that the prosecutor might be

undercutting the agreement, defense counsel never asked the prosecutors to make the

agreed upon recommendations.

       Instead of deciding this issue, we resolve the case on the related issue of the

prosecutor's due process obligation to comply with the plea agreement. As we noted in

our first opinion, the matter was remanded for resentencing. That required the parties to

educate the new judge on their positions so that the judge could exercise his sentencing

discretion. The prosecutors therefore had a duty to comply with the agreement and make

their sentencing recommendation. Sledge, 133 Wn.2d at 839-40. That was not done

because the prosecution appeared to confuse the reason why this court reversed the

original sentence with what needed to be done at resentencing. As a result, Mr. Barclay

did not get his agreed upon recommendation from the prosecutors. In light of their

apparent confusion, the prosecutors did not provide Mr. Barclay with due process of law

at the resentencing.

       Accordingly, we remand for another new resentencing hearing. The court again

will have to impose an appropriate sentence and the prosecutors will need to make their

agreed upon recommendations. The trial judge, having already rejected an exceptional

                                             4

No. 31970-9-111; 31971-7-111
State v. Barclay


sentence consisting of consecutive terms, is free to impose concurrent sentences within

the standard range. The court may well impose the same sentence handed down twice

previously, or it may not, but it must act after the prosecutors have lived up to their

obligations under their agreement.

       Reversed and remanded.

       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 RCW

2.06.040.




WE CONCUR: 





       Brown, J.




                                              5

