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lN THE COURT OF APPEALS FOR THE STATE OF WASHENGTON

STATE OF WASHlNGTON, NO. 77199-0-|

Respondent, DlV|SlON ONE
v. UNPUBL|SHED OP|N|ON
YAROSLAV OLEGOV|CH LEBED,

Appellant.

FlLED: November 13, 2018

 

ANDRUS, J. _ Yaros|ev Olegcvich Lebed pleaded guilty to two counts of
assault in the fourth degree domestic violence The plea agreement
recommended that Lebed serve 120 days in confinement followed by 60 days of
participation in either Ntoral Reconation Therapy (t\/|RT) or substance abuse
treatment through the Comrrrunity Center for Alternative Programs (CCAP). The
sentencing court ordered Lebed to serve 150 days in confinement rather than the
120 days recommended by the plea agreement Lebed appeais, claiming that the
State breached the plea agreement during sentencing, resulting in the harsher
sentence We affirm Lebed’s convictions and sentence

E__M
Lebed Was charged with one count of assault in the second degree

domestic violence after assaulting his then-girlfriend, Tata Elizabeth Jones, on

NO. 77199-0-¥/2

February 25, 2017. Atter plea negotiations, the State amended the charges to two
counts of assautt in the fourth degree domestic violencel Lebed’s signed piea
agreement stated that in exchange for a guilty plea, the State would recommend
a suspended sentence of 364 days, on the conditions that Lebed serve 120 days
in iail, followed by 60 days of participation in CCAP with substance abuse
treatment or NiRT if admitted by lottery. The plea agreement also specified that if
|VERT was unavailable Lebed Wouid do 5 days of CCAP per week for the GO-day
penod.

During the sentencing hearing, a different prosecutor appeared on behalf of
the State. |n response to an inquiry from the court as to why the confinement
period was 120 days when Lebed had strangled three people in the past, the
prosecutor acknowledged that the facts of the crirne and Lebed's history were
“concerning,” but mentioned that the plea was the result of “evidentiary issues.”
Defense counsel then explained to the court that the ptea agreement reflected
i_ebed’s rnenta| illness and that imposing additional confinement was not going to
be rehabilitative to Lebed.

The court imposed a sentence that inciuded all of the conditions on the plea
agreement but ordered 150 days in confinementl rather than 120 days outlined in
the plea agreement

ANALYSIS
Lebed contends that the State breached the plea agreement by

encouraging the sentencing court to impose a harsher sentence We disagree

No. 77199-O-l/3

P|ea agreements are contracts between the State and the defendant M
v. Sledge 333 Wn.2d 828, 839, 947 P.2d 1199, 1204 (1997), as amended (.lan.
281 1998). Because plea agreements concern the fundamental rights of the
accused, constitutional due process considerations are involved. l_r; Due process
requires the State to adhere to the terms of the agreement _f_d4 We review whether
the State breached a plea agreement de novo. State v. Neisier, 191 Wn. App.
259, 265, 361 P.3d 278, 281 (2015). ln determining whether the State's comments
breached the plea agreement we look to the sentencing record as a whole td_. at
266. The test is whether the State's words or conduct, without looking to the intent
behind them, contradict the State's recommendation g

While the sentencing court is not bound by the State's plea
recommendation, RCW 9.94A.431, a prosecutor is obligated to fuifill the State’s
duty under the plea agreement in making the agreed sentencing recommendation
§ie_dg_e, 133 Wn.2d at 840. Though the State need not make the recommendation
enthusiastically, it has a duty not to undercut the agreement “explicitiy or by
conduct evidencing an intent to circumvent the terms of the plea agreement." @',
see also ln re Palodichuk, 22 Wn. App. ‘iO7, 589 P.2d 268 (1978).

Lebed asserts that the prosecutors comments during the following
exchange breached the plea agreement and encouraged the sentencing court to
impose a harsher sentence

COURT: lt would appear this is the third person the defendant has

strangled, so l was interested how you came up with a 120 day
recommendation?

NO. 77199»0»¥/4

[PROSECUTOR]: As i’rn looking over it, | think that probably what |

can say is that there were some evidentiary issues that l think have

little to do with the factual scenario that’s portrayed in the

certification ln other words | can see the cert - ~ both the facts of the

codification and the history as concerning l think that there were

some evidentiary issues that caused some concern about the risks

of going to triai. “l'hat’s probably about as - - as much as l can

probably say.
i_ebed claims that the prosecutors statement that the factual allegations and
Lebed’s prior criminal history were “concerning” went beyond what Was necessary
to explain the sentencing recommendation and thus breached the plea agreement
Lebed analogizes his case to State v. Carreno~l\/laidonado, 135 Wn. App. 77, 143
P.3d 343 (2006)1 where Division Two of this court found that the prosecutors
statements went beyond what was necessary to support the sentencing
recommendation, ieading the court to reverse Carreno-Nlaldonado’s sentence ld_.
at 89. in that case, Carreno-Nlaldonado agreed to plead guilty to seven counts, in
exchange for a total sentence of 564 months, which reflected sentences in the |ow,
mid, and high ranges for their respective offenses. l_g4 at 79-80. After the court
outlined the standard range sentences for Carreno~|\/|a|donado’s offenses, it asked
the prosecutor whether he had anything to add. ld_. at 80. in response the
prosecutor made a lengthy statement on behalf of Carreno»l\/la|donado’s seven
victims. ld_. at 80-81. Fo|iowing the prosecutors statements, the court sentenced
Carreno~I\/laldonado to concurrent high-end sentences on all seven counts,

resulting in a 682 month sentence 118 months longer than in the plea agreement

ld_. ar 32.

l\lO. 77199-0-1/5

l-lere, Lebed asserts that his case is similar to that of Carreno-Nlaldonado.
We disagree l_ebed pleaded guilty to two counts of fourth degree assault,
domestic violence with each count carrying a maximum of 364 days’ confinement
in Lebed’s plea agreement the State agreed to recommend a suspended
sentence conditioned on Lebed serving 120 days of confinement for both counts,
along with 60 days’ participation in CCAP with substance abuse treatment or MRT,
or alternatively, additional CCAP. The State did so. The prosecutor did not engage
in a lengthy discussion to undermine the plea agreementl as the prosecutor did in
Carreno-Maidonado.

Furthermore, in State v. Cogpin, this court concluded that, in a similar
situation, a prosecutors comments during a sentencing hearing, if made in
response to inquiries by the sentencing judge do not constitute a breach of a plea
agreement 57 Wn. App 886, 875, 791 P.2d 228 (1990) (prosecutor’s comment
that he Wou|d have argued for an exceptional sentence in the absence of a plea
agreement in response to the court’s question was not a breach of the agreement).
ln Qgp_p_ig, the court said “a prosecutor under such circumstances has no
alternative but to answer the tribunal honest|y.” §

The Supreme Court has similarly held that answering the sentencing court’s
questions about a recommendation, despite its potential for prejudice does not
constitute a breach of the plea agreement State v. 'l'ai|ey, 334 Wn.2d 176, 185,
949 P.2d 358, (1998).

NO. 77199-0~|/6

Lebed’s situation is analogous to Copgin. The prosecutors statement
acknowledging concern about the factual allegations and Lebed’s criminal history

did not undermine the agreement and was not a breach thereof

 

 

Affirmed.
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WE CONCUR: 0
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