            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


THE STATE OF WASHINGTON,                         )        No. 80461-8-I
                                                 )
                         Respondent,             )
                                                 )        DIVISION ONE
                         v.                      )
                                                 )
                                                 )
                                                 )
LASZLO MOLNAR,                                   )
                                                 )        UNPUBLISHED OPINION
                         Appellant.              )
                                                 )

         MANN, C.J. — Laszlo Molnar appeals his sentence of 102 months to life for his

conviction of rape in the second degree. He argues that the State breached the plea

agreement by emphasizing the victim’s vulnerability and Molnar’s abuse of trust in its

sentencing memorandum. We agree, and reverse and remand for Molnar to elect either

to withdraw his guilty plea or to enforce the plea bargaining agreement before a different

judge.

                                                     I.

         Molnar was charged with aggravated rape in the second degree of an 83-year-

old woman, B.A., who lived in Molnar’s residential care facility. B.A. suffered from




           Citations and pin cites are based on the Westlaw online version of the cited material.
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severe dementia, making her unable to speak or perform daily functions of living without

assistance. B.A. had resided in the adult care facility, operated by Molnar and his wife,

for the past two and a half years. Although Molnar initially denied the assault, he

eventually admitted that he had assaulted B.A. about 10 times over the past several

months.

       Molnar entered into a plea agreement. In exchange for Molnar pleading guilty to

second degree rape, the State agreed to dismiss the vulnerable victim aggravator and

domestic violence designation. Rape in the second degree carries a standard range

sentence of 78 to 102 months. As part of the plea agreement, the State agreed to

recommend a sentence in the middle of the standard range—a minimum term of 90

months to life.

       In its sentencing memorandum, the State recommended a term of 90 months to

life. Molnar recommended a minimum term of 78 months. The State argued that a 78-

month sentence was inappropriate given the “egregious nature” of the crime and the

“obvious vulnerability” of B.A. Specifically, the State argued:

       There can be few more vulnerable victims, incapable of resistance, than
       an 83 year-old woman who is wheelchair bound, unable to speak, and
       completely dependent on others for her care. As well, the defendant’s
       relationship with the victim was directly fiduciary and his actions breached
       the trust relationship he had with her and with her family. B.A. needed
       help in order to perform every one of her activities of daily living and he
       established a relationship with her over years to assist her with all those
       activities. This defendant would not have been in a position to abuse B.A.
       had he not deceived B.A. and her family into trusting him and relying on
       his assurances that he would act as the kind and compassionate caregiver
       he purported to be.

       The trial court went above both sentence recommendations, imposing a

sentence of 102 months to life, a sentence at the top end of the standard range. Molnar

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moved for resentencing, arguing that the State undermined the plea agreement by

emphasizing B.A.’s vulnerability and Molnar’s abuse of trust. The trial court denied the

motion. Molnar appeals.

                                             II.

       Molnar argues that the State breached the terms of the plea agreement by

undermining its obligation to recommend a mid-range sentence, and by emphasizing

the vulnerable victim aggravator and the abuse of trust sentencing factor. We agree.

       We review constitutional issues de novo. State v. MacDonald, 183 Wn.2d 1, 8,

346 P.3d 748 (2015). On review, we apply an objective standard to determine whether

the State breached a plea agreement. MacDonald, 183 Wn.2d at 8.

       A plea agreement is a contract between the defendant and the prosecutor. In re

Pers. Restraint of Lord, 152 Wn.2d 182, 188-89, 94 P.3d 952 (2004). “The State thus

has a contractual duty of good faith, requiring that it not 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. Under the due process

clause, the State must adhere to the terms of the agreement and recommend the

agreed upon sentence. MacDonald, 183 Wn.2d at 8.

       Although the prosecutor is not required to make an enthusiastic

recommendation, “the prosecutor is obliged to act in good faith, participate in the

sentencing proceedings, answer the court’s questions candidly in accordance with RPC

3.3 and, consistent with RCW 9.94A.460, not hold back relevant information regarding

the plea agreement.” State v. Talley, 134 Wn.2d 176, 183, 949 P.2d 358 (1998). The

test to determine if the State breached the terms of the plea agreement is whether the

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State’s words or conduct, without looking to the intent behind them, contradict the

State’s recommendation. State v. Neisler, 191 Wn. App. 259, 266, 361 P.3d 278

(2015).

       A breach occurs when the prosecutor offers unsolicited information that supports

an exceptional sentence, undercutting the plea agreement. State v. Xaviar, 117 Wn.

App. 196, 200-02, 69 P.3d 901 (2003) (breach where the prosecutor highlighted

aggravating sentencing factors and unfiled charges and called the defendant “one of the

most prolific child molesters that this office has ever seen,” and the court adopted the

prosecutor’s reference to violation of the victims’ trust as an aggravating circumstance

to support its exceptional sentence); State v. Jerde, 93 Wn. App. 774, 782, 970 P.2d

781 (1999) (breach where the prosecutor repeatedly emphasized aggravating factors

that supported an exceptional sentence, despite the State’s obligation to make a mid-

range sentencing recommendation); State v. Van Buren, 101 Wn. App. 206, 217, 2 P.3d

991 (2000) (breach where the prosecutor made brief reference to sentencing

recommendation and highlighted three aggravating factors, including one factor not

specifically cited in the presentence report); State v. Williams, 103 Wn. App. 231, 236,

11 P.3d 878 (2000) (breach when the State violated the plea agreement to recommend

a standard range sentence by highlighting aggravating factors that supported an

exceptional sentence).

       The language in the State’s sentencing memorandum highlights aggravating

factors which support imposing an exceptional sentence on Molnar. In the

memorandum, the State emphasized the vulnerable victim aggravator, which the State

had explicitly agreed to drop as part of the plea agreement. The State also emphasized

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an uncharged aggravating factor of abuse of trust. While the State contends that these

remarks were necessary to persuade the trial court to impose the State’s mid-range

recommendation of a term of a 90-month minimum, rather than Molnar’s

recommendation of a 78-month minimum, this argument is unpersuasive. Although the

State maintains that it was adhering to the mid-sentence recommendation, objectively,

the remarks in the memorandum demonstrate that the State advocated for the court to

impose an exceptional sentence on Molnar by highlighting the aggravating factors of the

case.

        The State’s comments highlighting the aggravating factors were unnecessary to

support its recommendation, and violated the terms of the plea agreement. While

Molnar provides numerous cases to support his argument, the State’s contention is

wholly unsupported by existing case law. Because Molnar was not charged with abuse

of trust, and the State agreed to drop the vulnerable victim aggravator as part of the

plea agreement, the State breached the agreement by highlighting these aggravating

factors in its memorandum.

        If the State breaches a plea agreement, the appropriate remedy is to remand for

the defendant to choose whether to withdraw the guilty plea or seek enforcement of the

State’s agreement. Neisler, 191 Wn. App. at 266. If the defendant elects to seek

enforcement of the agreement, the defendant is entitled to a new sentencing hearing in

front of a different judge. Van Buren, 101 Wn. App. at 218. “At this hearing, the State

must present the agreed upon sentencing recommendation without equivocation.” Van

Buren, 101 Wn. App. at 218.



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      Reversed and remanded for Molnar to elect either to withdraw his guilty plea or

to enforce the plea bargaining agreement before a different judge.




WE CONCUR:




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