             IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                 DIVISION ONE

THE STATE OF WASHINGTON,                     )      No. 78545-1-I

                              Respondent,

                   v.                        )      UNPUBLISHED OPINION

GIANNI S. CUNNINGHAM,

                              Appellant.     )      FILED: November 12, 2019

          SCHINDLER, J.   —   Gianni S. Cunningham shot 17-year-old Kaylynn Voegele at

close range in the head. The State charged Cunningham with murder in the second

degree while armed with a firearm and unlawful possession of a firearm in the second

degree. Cunningham seeks reversal of his plea of guilty to manslaughter in the first

degree while armed with a firearm. Cunningham claims the prosecutor breached the

plea agreement to recommend a low-end standard range sentence by addressing the

sentencing memorandum and the forensic psychological evaluation the defense

submitted to the court before sentencing. Cunningham also claims the prosecutor

breached the plea agreement by allowing two family friends to address the court at

sentencing, urging the court to impose a high-end sentence. Because the record does

not support Cunningham’s claim that the prosecutor breached the plea agreement, we

affirm.
No. 78545-1-112

Murder in the Second Degree

       At approximately 10:55 p.m. on May 4, 2016, the police responded to a 911 call

of a shooting at a condominium complex in Burien. The police found seventeen-year         -




year-old Kaylynn Voegele dead in a hallway with a gunshot wound to her head.

Seventeen-year-old Gianni S. Cunningham told police that Kaylynn was his girlfriend

and he was with her when she was shot.

       Cunningham said he and Kaylynn were together, talking in the hallway near the

laundry room for approximately 20 minutes. Cunningham said that when he opened

“the door at the end of the hallway to let in some fresh air,” he saw “a black BMW sedan

pull up” and a black male “pointing a gun out the front passenger window at him.”

Cunningham told police that as he “ran up the stairs to the third level,” he “heard one

gunshot.” After he “heard two more shots,” Cunningham “ran back downstairs and saw

that Kaylynn had been shot and was bleeding from her head.” Cunningham told police

he “ran out the door and tried to chase after the black BMW to get the license plate, but

could not do so.” The police found two “fresh bullet holes” in the hallway door and two

shell casings in the parking lot outside the door.

       The police interviewed a resident who lived in the condominium unit across the

hall from where Kaylynn was shot. The resident told the police that he watched

Cunningham and Kaylynn through the peephole in his door. The resident said

Cunningham was “play[ing]” with a small handgun, “taking the magazine out and putting

it back in and pulling back on the slide of the gun.” The resident told the police that

Kaylynn “continually told Cunningham to put the gun away.” “At one point,” the resident

saw Kaylynn “bent over to do something with her bag that was sitting on the step of the



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 No. 78545-1-1/3

 stairs.” When Kaylynn “stood up, facing” Cunningham, the resident heard Kaylynn say,

  ‘I’m not afraid of you’ “and “she took a step towards him.” The resident saw

 Cunningham “step back, pull the gun out from his pocket or waistband and point it at

 Kaylynn’s face,” and “pull[] the trigger, shooting Kaylynn in the face from a distance of

 approximately one foot.” The resident watched as Kaylynn “collapsed to the floor where

 she stood.”

        Immediately after shooting Kaylynn, the resident saw Cunningham run outside.

After approximately a minute, the resident heard two more gunshots.

        On May 9, 2016, the State charged Cunningham with felony murder in the

second degree while armed with a firearm and unlawful possession of a firearm in the

second degree. The prosecutor submitted the certificate for determination of probable

cause and a summary and request for bail. The summary states that on April 13, 2016,

three weeks before the May 9 shooting, Cunningham received a deferred disposition

and probation in juvenile court for unlawful possession of a firearm in the second

degree. The summary states that after shooting Kaylynn “at near point blank range,”

Cunningham “attempted to cover up his crime by setting up the scene to look like a

drive by shooting, going as far as firing two additional shots into the occupied

condominium complex.” The summary states Cunningham told several witnesses that

he believed Kaylynn “set him up and that he was the true target of this fictitious drive by

shooting.” The State requested a high bail amount because Cunningham’s “actions in

this case, coupled with his prior history with firearms and his complete lack of remorse

for the victim, demonstrate the extreme risk he poses to public safety.” Cunningham

entered a plea of not guilty.




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No. 78545-1-1/4

Forensic Psychological Evaluation

          In Statev. Houston-Sconiers, 188 Wn.2d 1,20-21,391 P.3d 409 (2017), the

Washington Supreme Court held that under the Eighth Amendment to the United States

Constitution, “sentencing courts must have complete discretion to consider mitigating

circumstances associated with the youth of any juvenile defendant, even in the adult

criminal justice system,” and “discretion to impose any sentence below the otherwise

applicable SRA11] range and/or sentence enhancements.” Examples of mitigating

factors the court must consider at sentencing include age, immaturity, ‘‘failure to

appreciate risks and consequences,’ “the “nature of the juvenile’s surrounding

environment and family circumstances,” and “participation in the crime.” Houston

Sconiers, 188 Wn.2d at 23 (quoting Miller v. Alabama, 567 U.S. 460, 477, 132 S. Ct.

2455, 183 L. Ed. 2d 407 (2012)). The court reiterated its decision in State v. O’Dell, 183

Wn.2d 680, 688-89, 358 P.3d 359 (2015), that “a sentencing court may consider a

defendant’s youth as a mitigating factor justifying an exceptional sentence below the

sentencing guidelines under the SRA.” Houston-Sconiers, 188 Wn.2d at 24.

      At the request of the defense, Dr. Sarah Heavin prepared a 30-page forensic

psychological evaluation of Cunningham on June 15, 2017. Dr. Heavin reviewed

medical, school, and court records and interviewed Cunningham and his family

members. Dr. Heavin states that in her opinion,

      Cunningham’s youthfulness, combined with his trauma history, possible
      fetal cocaine exposure, and antisocial role models should be considered
      when conceptualizing his previous offending behaviors. More specifically,
      it is my opinion that at the time of the offense, Mr. Cunningham likely
      presented as more developmentally immature and impulsive than the



      1   Sentencing Reform Act of 1981, chapter 9.94A ROW.


                                                 4
No. 78545-1-115

          average 18-year-old as a result of his trauma history, fetal cocaine
          exposure, insecure attachment, and trauma-related symptoms.

          Defense counsel provided a copy of the forensic psychological evaluation to the

prosecutor.

Plea Agreement

          On April 19, 2018, the State and Cunningham entered a plea agreement. The

prosecutor agreed to file an amended information charging Cunningham with

manslaughter in the first degree with a mandatory firearm enhancement. Cunningham

agreed to plead guilty to the amended information. Cunningham stipulated to real facts

“set out in the certification(s) for determination of probable cause and prosecutor’s

summry.”

      The plea agreement provides that “neither party will seek an exceptional

sentence.” The prosecutor agreed the State would recommend a low-end standard

range sentence of 78 months for manslaughter in the first degree in addition to 60

months for the firearm enhancement.

      The “Statement of Defendant on Plea of Guilty” reiterates the sentencing

recommendation:

      The prosecuting attorney will make the following recommendation to the
      judge: STATE AGREES TO RECOMMEND 78 MONTHS
      CONFINEMENT IN ADDITION TO 60 MONTHS FOR THE FAE[2] TO BE
      SERVED CONSECUTIVELY FOR A TOTAL OF 138 MONTHS, NO
      CONTACT WITH FAMILY OF KAYLYNN VOEGELE, RESTITUTION
      TBD,~3] 36 MONTHS COMMUNITY CUSTODY, $500 VPA~4J AND $100
      DNA~5] [COLLECTION FEE]. THIS IS AN AGREED SENTENCING
      RECOMMENDATION.

      2 Firearm enhancement.
      ~ To be determined.
      “Victim penalty assessment.
      ~ Deoxyribonucleic acid.


                                              5
No. 78545-1-1/6


The Statement of Defendant on Plea of Guilty also unequivocally states the judge is not

bound by the agreed recommendation:

       The judge does not have to follow anyone’s recommendation as to
       sentence. The judge must impose a sentence within the standard range
       unless there is a finding of substantial and compelling reasons not to do
       so or both parties stipulate to a sentence outside the standard range. If
       the judge goes outside the standard range, either I or the State can appeal
       that sentence to the extent to which it was not stipulated. If the sentence
       is within the standard range, no one can appeal the sentence.

Presentence Memorandum

       The sentencing hearing was scheduled for June 15, 2018. On May 23, the

prosecutor filed a “Presentence Statement of King County Prosecuting Attorney.” The

presentence memorandum identified the charges and attached and incorporated by

reference the certificate for determination of probable cause, the prosecutor’s summary,

the amended information, and the felony plea agreement.

       On June 12, the defense attorney filed a presentencing memorandum that

attached the 30-page forensic psychological evaluation prepared by Dr. Heavin. The

memorandum states the agreed recommendation is 138 months but asserts the crime

was the result of “an immature 17-year old kid acting recklessly.” The defense

memorandum urges the court to read Dr. Heavin’s evaluation. The memorandum

states, in pertinent part:

       By the time Gianni was a teenager, he had been exposed to violence and
       trauma in volumes akin to a child growing up in an active warzone.
               Sarah Heavin, PhD, conducted a complete forensic psychological
       evaluation. Defense retained Dr. Heavin because she has a Ph.D. in
       clinical psychology and has a child and family specialization..   . Dr.
                                                                             .


       Heavin has particular expertise in evaluating adolescents exposed to
       trauma. In preparing Gianni’s evaluation, Dr. Heavin conducted two
       clinical interviews of Gianni, conducted several collateral interviews with



                                            6
No. 78545-1-1/7

       members of Gianni’s family; reviewed massive amounts of school records
       from the Seattle Public School District; reviewed substantial medical
       records dating all the way back to Gianni’s birth in 1998; and performed
       psychological testing. Upon completing her evaluation, Dr. Heavin
       informed defense counsel that the trauma of Gianni’s upbringing was one
       of the worst that she had ever documented. Defense urges the Court to
       read Gianni’s psychological evaluation.

Sentencing Hearing

       At the beginning of the sentencing hearing on June 15, the prosecutor told the

court, “[M]any, many friends and family of the victim Kaylynn Voegele, including her

mother, her grandmother and her great-grandmother, and many other friends and

family” were present and “several people” would like to address the court.

       The prosecutor states the “agreed recommendation in this case is 138 months,

which is the low end of the manslaughter in the first degree with the required 60-month

enhancement.”

       The prosecutor acknowledged that “under the case law, as the court knows,

currently, because the defendant was charged as an adult, under some of the case law

it could be deemed that this court has somewhat unfettered discretion as to what to do

with a sentence in this case.”

              After this offense occurred, your honor is quite aware, as is
       counsel, and I have explained to the family as well, there was a great
       change in the law as we deal with juveniles who are tried as adults, both
       the auto adult statutes as well as the case law that has come out about
       the juvenile mind and all of that, that surrounds how we handle juvenile
       offenders.

       The prosecutor told the court that as part of the plea agreement, Cunningham

agreed “not to ask for an exceptional sentence downward.” But the prosecutor notes

the defense nonetheless submitted “the mitigation report” prepared by Dr. Heavin that




                                            7
 No. 78545-1-1/8

 had previously been submitted to the State. The prosecutor states:

        I wanted it clear on the record that the court, or the [Sjtate did consider
        that information and is certainly the defendant’s youthfulness at the time of
        this offense into consideration in making this agreed recommendation with
        defense, and I believe defense is working under that same guise.

 The prosecutor emphasized “a couple” of points “in order to support the

 recommendation that is being made by the parties here of why the court should stay

within the sentencing range.” The prosecutor states contrary to the characterization of

the crime by the defense presentence memorandum and Dr. Heavin, “there is [no]

mention of what the defendant did afterwards.       .   .   .   He tried to make it look like someone

else did this.” Contrary to the defense memorandum and the forensic evaluation, the

prosecutor said that shooting Kaylynn was not beyond Cunningham’s control.

       [Tb claim that somehow this was just a horrible mistake and that this is
       the reason why we need to keep firearms out of the hands of juveniles is
       really ignoring the overarching issue here, which is all of this is the
       defendant’s fault. This may not have been his intent, but it is his fault.         .




             And so it is for those reasons that we believe      after great
                                                                        .   .   .   ,


       thought,  .  the court should follow and that the 138 months in custody is
                     .   .


       the appropriate sentence.

       Without objection, Marta Hoskinson, Patricia Mejia, Kaylynn’s great-grandmother,

and Kaylynn’s mother addressed the court.

       Marta Hoskinson, the grandmother of Kaylynn’s friend and a family friend,

explained why she and her granddaughter “are changed forever” by the death of

Kaylynn. Hoskinson attended the meeting that the prosecutor had with the family and

close friends. Hoskinson said she “sat in horror to learn” that Cunningham “would get

such little time for this horrific crime in taking such a beautiful and important life.”

              I witnessed Kaylynn’s family be re-victimized by the shocking
       information.


                                               8
No. 78545-1-1/9

              I would ask you, would you give him the amount of time he
       deserves and that would be triple what they are recommending, at least
       40 years of incarceration so he cannot get out of custody and murder
       again?

       Patricia Mejia manages several youth programs in Burien. Mejia told the court

she was speaking “on behalf of [Kaylynn’s] family.” Mejia said Kaylynn had been in the

youth program since she was 11 years old. Mejia told the court that just as she treats

the teenagers in her youth program as adults, so should the court:

       I know that the laws have changed, but I don’t think this is a matter of a
       youth versus an adult. This is an individual who should be held
       accountable for his actions, and if on the other side that were one of my
       teens, I would be saying the exact same thing.

       Kaylynn’s great-grandmother said, ‘[W]hen her life was taken from us, it was an

upset on the whole family, all of us.”

              I hope and pray that this young man, that he realizes what he has
       done. I hope he has the time to think about what he has done and that he
       won’t ever want to touch another gun to take another life, because not
       only our family, your family has been disturbed, uprooted because of this.

       Kaylynn’s mother told the court she believed Cunningham “has not shown any

remorse about the situation.”

             My daughter’s last words were, “I am not afraid of you.” For me
      that says that she had to have had a direct threat towards her, you know,
      in order to provoke that response. You know?
             After he did this, .  he went through these matters to cover it up.
                                    .   .


      That is not the mind of a kid freaking out because they just committed an
      accident. That is the mind of a criminal. You know? I believe that.
             And so because of these things, I feel like he should be given the
      higher of the sentence that he is     the range.
                                            —




      Cunningham’s defense attorney argued youth should be treated differently than

adults at sentencing “because of what the science tells us about impulsivity, poor




                                                9
No. 78545-1-1/10

decision-making, [and] risk taking behavior.” However, defense counsel emphasized

the problem of “firearms”:

                It doesn’t justify anything. And frankly one of the reasons why in
         negotiations I can say this, the firearm enhancement, that was     — one of
         the reasons why the [S]tate insisted is because of the fact that firearms
         are a problem and that if you have one, it doesn’t matter if you are 17 or
         27, you need to get that enhancement. And we are not challenging that.
         And we are not asking for an exceptional down. We are asking for an
         adult sentence here.

         When Cunningham addressed the court, he insisted, “The truth is it was an

accident, but just because it was an accident doesn’t make it any better. I take full

responsibility because it is all my fault. I can’t even imagine the pain I inflicted upon you

guys.”

         The court imposed a mid-range sentence of 150 months. The court stated:

                This court gives extreme d{e]ference to the attorneys who negotiate
         these agreements. And the reason for that is, as [defense counsel] noted,
         this has been months in the making and the attorneys know the case
         extremely well, and therefore make their recommendation to this court.
         But as Mr. Cunningham was advised at the time he pled, this court is not
         bound by that recommendation.
                And in good conscience, this is one of those cases where I am not
         going to grant the agreed recommendation, but I think that a mid-range
         sentence rather than low-end sentence is appropriate.

         The court said, “I did read the full social history report on the defendant, Mr.

Cunningham, who unquestionably had a very troubled, challenging youth and

upbringing. And this explains much and excuses nothing.”

                The legislature gives us these ranges so that we can take so many
         factors into consideration. The high-end, if there are aggravating
         circumstances, the low-end if there are mitigating circumstances.
                As a judge I start in the middle and I look to see what we have to
         mitigate, and as both the [S]tate acknowledges and [defense counsel]
         argues, we have a young man whose youth has to be taken into
         consideration by law as well as by science, and the fact that he has had
         such a challenging upbringing.


                                               10
 No. 78545-1-I/il

                On the other hand, we have somebody who was precluded from
        having a firearm, and this could have been avoided and never happened.
                This could have been charged as murder in the second degree and
        prosecuted in that fashion, and Mr. Gianni, or Mr. Cunningham, Gianni
        Cunningham has already received a substantial benefit from pleading to
        manslaughter rather than facing the murder in the second degree charge.
                In addition, his actions immediately after this, to this court, showed
        significant consciousness of guilt, as noted by Kaylynn’s mother. He didn’t
        call 911, scream for help. Instead he created a cover-up story. And I
        consider that to be an aggravating circumstance.

Breach of Plea Agreement

       Cunningham contends the prosecutor breached the plea agreement and violated

due process by undermining the agreed recommendation for a low-end sentence of 138

months.

       “A plea agreement is a contract between the State and the defendant.” State v.

MacDonald, 183 Wn.2d 1,8,346 P.3d 748 (2015). Both parties have a contractual duty

of faith not to “undercut the terms of the agreement, either explicitly or implicitly, by

conduct evidencing intent to circumvent the terms of the plea agreement.” MacDonald,

183 Wn.2d at 8. While both parties must in good faith adhere to the plea agreement,

they do not have to make the sentencing recommendation “enthusiastically.” State v.

Talley, 134 Wn.2d 176, 183, 949 P.2d 358 (1998).

       “In addition to contract principles binding the parties to the agreement,

constitutional due process ‘requires a prosecutor to adhere to the terms of the

agreement’ by recommending the agreed-upon sentence.” MacDonald, 183 Wn.2d at 8

(quoting State v. Sledge, 133 Wn.2d 828, 839, 947 P.2d 1199 (1997)). When a

defendant pleads guilty, he waives “significant rights,” including the rights to a jury trial,

confront accusers, present defense witnesses, remain silent, and have charges proved

beyond a reasonable doubt. MacDonald, 183 Wn.2d at 8-9. In exchange for waiving


                                              11
 No. 78545-1-1/12

these rights, the defendant receives the benefit of the bargain. MacDonald, 183 Wn.2d

at 9. “When the State breaches a plea agreement, it ‘undercuts the basis for the waiver

of constitutional rights implicit in the plea.’” MacDonald, 183 Wn.2d at 9 (quoting State

v. Tourtellotte, 88 Wn.2d 579, 584, 564 P.2d 799 (1977)).

       We review constitutional issues de novo. MacDonald, 183 Wn.2d at 8. “We

review a prosecutor’s actions and comments objectively from the sentencing record as

a whole to determine whether the plea agreement was breached.” State v. Carreno

Maldonado, 135 Wn. App. 77, 83, 143 P.3d 343 (2006). “Harmless error review does

not apply when the State breaches a plea agreement.” MacDonald, 183 Wn.2d at 8.

       The prosecutor breaches a plea agreement by presenting “unsolicited

information by way of report, testimony, or argument that undercuts the State’s

obligations under the plea agreement.” Carreno-Maldonado, 135 Wn. App. at 83. But

the prosecutor does not breach the plea agreement by reiterating certain facts

necessary to support its recommendation. Carreno-Maldonado, 135 Wn. App. 84.

       Here, the defense submitted Dr. Heavin’s report that addressed mitigating factors

to support an exceptional sentence downward. Objectively viewed, the comments the

prosecutor made during the sentencing hearing did not breach the plea agreement or

violate Cunningham’s due process rights. The prosecutor appropriately addressed the

defense memorandum, the forensic evaluation, and the court’s discretion to consider

mitigating factors and youth. The prosecutor adhered to the agreement to recommend

a low-end standard range sentence. In support of the agreed recommendation, the

prosecutor pointed to the agreed facts that contradicted the mitigating factors described




                                           12
 No. 78545-1-1113

 in the forensic report and the defense memorandum. We conclude the prosecutor’s

 remarks did not breach the plea agreement.

        Cunningham cites MacDonald to argue the prosecutor also breached the plea

agreement by allowing Marta Hoskinson and Patricia Mejia to address the court and

urge the court to impose a much longer sentence. The State argues the court had the

discretion to allow them to speak at the sentencing hearing and unlike in MacDonald,

neither Hoskinson nor Mejia were agents or proxies of the State bound by the plea

agreement.

       Constitutional due process concerns “that adhere when the prosecutor undercuts

a plea bargain apply with equal force” when an agent of the prosecution undercuts the

agreement by proxy. MacDonald, 183 Wn.2d at 15. In State v. Sanchez, 146 Wn.2d

339, 46 P.3d 774 (2002), the Washington Supreme Court held that an investigating law

enforcement officer may not undermine a plea agreement by advocating against a plea

bargain reached between the prosecutor and the defendant. See MacDonald, 183

Wn.2d at 14 (“we adhere” to the holding in Sanchez that an investigating officer “may

not undermine a plea agreement”). “The critical inquiry is whether the officer was acting

in the role of assisting the court or whether the officer was assisting the prosecutor.”

MacDonald, 183 Wn.2d at 14. In MacDonald, the court held that an investigating officer

was acting on behalf of the State and undercut the plea agreement at the sentencing

hearing. MacDonald, 183 Wn.2d at 14-15.

       Here, unlike in Sanchez and MacDonald, the record does not support finding

Hoskinson or Mejia were State actors or acting by proxy on behalf of the prosecutor.

Courts have discretion to permit individuals to act as victim’s representatives and to



                                            13
No. 78545-1-1114

speak during sentencing. Statev. Lindahi, ll4Wn. App. 1, 13-14,56 P.3d 589 (2002).

“Washington ensures that crime victims and survivors of victims have a significant role

in the criminal justice system through statutes and our state constitution.” MacDonald,

183 Wn.2d at 16 (citing WASH. CONST. art. I,              § 35 (amend. 84); chapter 7.69 RCW).
“The courts have an obligation to vigorously protect these rights.” MacDonald, 183

Wn.2d at 16 (citing ROW 7.69.010).

       Hoskinson is the grandmother of Kaylynn’s friend and had been “supporting

Kaylynn’s family and friends since we lost her.” Mejia knew Kaylynn and her family

since Kaylynn began attending the Burien youth program when she was 11-years-old.

Mejia told the court, “I am honored to be here on behalf of her family.” ~ ROW

7.69.030(14) (victims and survivors may elect “to present a statement personally or by

representation   .   .   .   at the sentencing hearing for felony convictions”).

      We reject Cunningham’s claim that the prosecutor breached the plea agreement

and affirm the judgment and sentence.




                                                            4Ii~tS,
                                                                ___   A
                                                                          ~ii,     %,
WE CONCUR:




                                                     14
