        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                       Assigned on Briefs December 15, 2015


                 STATE OF TENNESSEE v. ANTHONY BOBO

                 Appeal from the Criminal Court for Shelby County
                     No. 15-01726    Glenn Ivy Wright, Judge




               No. W2015-00930-CCA-R3-CD - Filed March 2, 2016
                        _____________________________

Prior to his indictment, the defendant entered into a written and signed plea agreement
with the State in general sessions court, where he waived his right to a preliminary
hearing and presentment to the grand jury and indicated he intended to plead guilty to one
count of aggravated burglary. After the matter was transferred to criminal court but
before the court could accept the plea agreement, the State indicated that it would refuse
to abide by the terms. The defendant was ultimately granted a preliminary hearing and
indicted, and he then entered an open guilty plea to one count of aggravated burglary, a
Class C felony, one count of vandalism of property valued at $10,000 or more, a Class C
felony, and one count of theft of property valued at $1,000 or more, a Class D felony.
The trial court sentenced the defendant to serve four years on supervised probation for
each conviction, with all the sentences to be served concurrently. In entering his guilty
pleas, the defendant reserved a certified question of law asking this court to decide
whether a written plea agreement, executed in general sessions court, was binding on the
State prior to its acceptance by the criminal court. We conclude that the certified
question is not dispositive of the defendant‘s aggravated burglary conviction, and
accordingly dismiss the appeal of that offense. We further hold that such an agreement is
not enforceable absent detrimental reliance by the defendant, and we conclude that the
trial court did not err in remanding for a preliminary hearing and indictment rather than
granting the defendant specific performance of the agreement. The judgments of the trial
court are affirmed.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which D. KELLY
THOMAS, JR. J., joined. ROGER A. PAGE, J., not participating.
Stephen Bush, District Public Defender; and Barry W. Kuhn (on appeal) and A.
Benjamin Baker (at trial), Assistant District Public Defenders, for the Appellant, Anthony
Bobo.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy P. Weirich, District Attorney General; and Lora Fowler, Assistant District Attorney
General, for the Appellee, State of Tennessee.


                                         OPINION

                     FACTUAL AND PROCEDURAL HISTORY

        On May 23, 2014, a Memphis residence was burglarized. The perpetrator took the
proverbial kitchen sink, various faucets, copper pipes from inside the home, a coil and
copper wiring from the air conditioner, a toilet, and a bathroom vanity. In committing the
theft, the perpetrator tore apart several walls, ripped off the countertops and kitchen
cabinets, and caused other damage. A latent print recovered from the air conditioner coil
matched the defendant‘s palm, and the defendant gave a statement to police admitting his
guilt. The stolen property was valued at over $2,000 and the damage to repair the home
was valued at over $10,000. An arrest warrant detailing the evidence linking the
defendant to the crimes and charging the defendant with aggravated burglary, theft of
property over $1,000, and vandalism over $10,000 was issued on July 3, 2014.

        On July 23, 2014, the general sessions court of Shelby County entered a document
entitled ―Waiver Bind Over and Mittimus Information.‖ This document stated that the
defendant waived his right to a preliminary hearing and to the presentment of charges to
the grand jury and that he was bound over to the criminal court on information. The
document indicated that the parties had come to a negotiated plea settlement: the
defendant would plead guilty to aggravated burglary as a standard, Range I offender and
be sentenced to three years, with the possibility of filing for probation or other alternative
sentencing. This document was executed by the defendant, his attorney, the general
sessions judge, and the Assistant District Attorney General.

        At some point after the case was transferred to criminal court, the District
Attorney General indicated that she would not approve the plea agreement, and the State
stated that it would no longer abide by the terms. The defendant filed a motion to compel
the State to uphold its bargain. The State argued that the agreement was revocable until
accepted by a court with jurisdiction over felonies, which the general sessions court did
not have, and the State suggested that the defendant would be made whole if the court

                                              2
would remand the case to general sessions court in order to hold the preliminary hearing
that the defendant had waived. On December 17, 2014, the trial court remanded the case
for a preliminary hearing.1 The defendant filed a motion for permission to seek an
interlocutory appeal, which was granted, but this court denied review. See State v.
Anthony Bobo, Order, No. W2014-02544-CCA-R9-CD, (Tenn. Crim. App. Feb. 10,
2015). The defendant also sought to reduce his bond at the time that the case was
remanded for a preliminary hearing.

        The defendant was indicted on April 14, 2015, for aggravated burglary, vandalism
of property valued at $10,000 or more but less than $60,000, and theft of property valued
at $1,000 or more but less than $10,000. On May 19, 2015, the defendant entered open
guilty pleas to all charges, pursuant to North Carolina v. Alford, 400 U.S. 25 (1970). The
trial court sentenced him to four concurrent years for each offense. The defendant had
been in confinement since his arrest, and the trial court ordered him to serve the
remainder of his time on supervised probation. The certified question presented is
―whether a written, signed and court-approved plea agreement, when executed by all
parties in general sessions criminal court, is binding on the State of Tennessee and, thus,
can be enforced by a Circuit Criminal Court Judge having plenary jurisdiction over the
proposed felony plea agreement.‖

                                        ANALYSIS

                                   I. Certified Question

       Although neither party raises the issue in its briefs, we must first determine
whether the question before us may properly be addressed as a certified question of law.
The defendant pled guilty under Tennessee Rule of Criminal Procedure 37(b)(2)(D),
which states that a defendant may appeal from a plea of guilty or nolo contendere absent
a plea agreement if ―the defendant – with the consent of the court – explicitly reserved
the right to appeal a certified question of law that is dispositive of the case, and the
requirements of Rule 37(b)(2)(A)(i)-(ii) are otherwise met.‖ Rule 37(b)(2)(A)(i) requires
the judgment of conviction or order reserving the certified question to contain a statement
of the certified question of law preserved for review, and Rule 37(b)(2)(A)(ii) requires
that the order ―identifies clearly the scope and limits of the legal issue reserved.‖ In this
case, the trial court consented to the preservation of the question, the question was
included in the judgment, and the question clearly identifies the scope of the legal
question before us.


       1
           A written order denying the motion to compel was apparently filed December 1, 2014,
but it is not a part of the record.
                                              3
        We turn to the question of whether the certified question reserved in the judgment
is dispositive. A certified question is dispositive ―when the appellate court ‗must either
affirm the judgment [of conviction] or reverse and dismiss [the charges].‘‖ State v.
Dailey, 235 S.W.3d 131, 134 (Tenn. 2007) (quoting State v. Walton, 41 S.W.3d 75, 96
(Tenn. 2001) (quoting State v. Wilkes, 684 S.W.2d 663, 667 (Tenn. Crim. App. 1984))).
If the appellate court might reverse and remand, the issue is not dispositive. Wilkes, 684
S.W.2d at 667. The appellate court is not bound by the determination of the trial court
that a question is dispositive but must make an independent determination. Dailey, 235
S.W.3d at 134-35. If the appellate court determines that the certified question presented
is not dispositive, it must dismiss the appeal. Walton, 41 S.W.3d at 96 ; see also Dailey,
235 S.W.3d at 135-36 (citing cases). Accordingly, ―the quagmire of criminal
jurisprudence in Tennessee — the inappropriate utilization of Tenn. R.Crim. P. 37(b)[]‖
has resulted in numerous cases in which a defendant pled guilty only to have the court
determine on appeal that his certified question could not be addressed because it was not
dispositive of the charges. State v. Thompson, 131 S.W.3d 923, 923-24 (Tenn. Crim.
App. 2003).

        In State v. Thompson, the defendant was charged with driving under the influence
(―DUI‖) as a repeat offender, but he was not provided with a copy of his prior
convictions at his arraignment. Thompson, 131 S.W.3d at 924. The defendant entered a
guilty plea, but he challenged his conviction as a repeat offender under Rule 37, asserting
that he could at most be charged as a first offender. Id. at 925. This court held that the
question was not dispositive because even if the defendant were correct that he could not
be prosecuted as a repeat offender, ―then we could only reverse the trial court and remand
for a new sentencing hearing for a conviction of DUI, first offense.‖ Id.; see also State v.
Bailey, 213 S.W.3d 907, 911-12 (Tenn. Crim. App. 2006) (concluding that the question
of competency was not dispositive because error in the trial court‘s determination would
result in remand on the question of involuntary commitment to a mental hospital); State
v. Oliver, 30 S.W.3d 363, 364 (Tenn. Crim. App. 2000) (concluding that challenge to
conviction for fourth offense DUI was not dispositive because the case would have to be
remanded on a misdemeanor charge).

        A question may be dispositive of one charged offense and yet not dispositive of
another. See State v. Michael Kennedy, No. W2001-03107-CCA-R3-CD, 2003 WL
402798, at *1, *3-4 (Tenn. Crim. App. Feb. 21, 2003) (dismissing appeal of two cases
involving three offenses which were supported by evidence outside the challenged search
and affirming remaining convictions); see also State v. Harris, 919 S.W.2d 619, 621
(Tenn. Crim. App. 1995) (holding that defendants‘ challenge to one of two searches was
dispositive because charges based on other search had been dismissed). When the
certified question is dispositive of one or more convictions but not dispositive of others,
this court may dismiss the appeal of those convictions that do not satisfy the requisites of
                                             4
Rule 37 and hear the appeal of those convictions of which the certified question is
dispositive. In State v. Adam George Colzie, the defendant pled guilty to reckless driving
and to a drug offense. No. M1998-00253-CCA-R3-CD, 1999 WL 1074111, at *1 (Tenn.
Crim. App. Nov. 30, 1999). He appealed under Rule 37, challenging the legality of the
search of his vehicle, which took place after he was stopped for driving at ninety-two
miles per hour in a sixty-five-mile-per-hour zone. Id. This court concluded that the
question regarding the search was dispositive of the drug offense but not of the reckless
driving offense. Id. at *3-4. Accordingly, we dismissed the appeal as to the reckless
driving conviction, but we proceeded to consider the validity of the search and
determined that the drug conviction should be reversed and dismissed. Id. at *10.

       In the case before us, if this court were to enforce the defendant‘s original plea
agreement, we would be required to reverse and dismiss the theft and vandalism charges.
See Tenn. R. Crim. P. 8(a) (requiring mandatory joinder for offenses ―based on the same
conduct or arise from the same criminal episode‖ and prohibiting separate trials for such
offenses unless the offenses are severed pursuant to Rule 14); State v. Johnson, 342
S.W.3d 468, 473 (Tenn. 2011) (noting that Rule 8 was designed to prevent ―saving back‖
charges and that failure to include offenses based on the same conduct or part of the same
criminal episode ―prevents the State from subsequently prosecuting the other charges that
should have been included in the original indictment‖).

       However, the same is not true for the aggravated burglary conviction. The
original plea agreement specified that the defendant would plead guilty to aggravated
burglary in exchange for a three-year sentence, rather than the four-year sentence he
received after submitting an open plea on the same charge. Clearly, the enforceability of
the State‘s contract is not dispositive of this conviction. See Thompson, 131 S.W.3d at
925 (dismissing appeal because the only remedy would be to ―remand for a new
sentencing hearing for a conviction of DUI, first offense‖). Accordingly, we dismiss the
appeal of the defendant‘s conviction for aggravated burglary, but we proceed to consider
the certified question to determine if his remaining convictions should be reversed and
the charges dismissed.

                       II. Enforceability of the Plea Agreement

       The defendant contends that the signed contract with the Assistant District
Attorney General is enforceable, while the State insists that such an agreement is
revocable by either party until accepted by the court. The issue is a question of law,
which we review de novo. See, e.g. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001);
State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).


                                            5
       Initially, the State argues that the absence from the record of the trial court‘s order
denying the motion to compel precludes review. The appellant has the duty to prepare a
record such ―as is necessary to convey a fair, accurate and complete account of what
transpired with respect to those issues that are the bases of appeal.‖ Tenn. R. App. P.
24(b). ―Absent the necessary relevant material in the record an appellate court cannot
consider the merits of an issue.‖ State v. Ballard, 855 S.W.2d 557, 561 (Tenn. 1993).
The record clearly indicates that the defendant presented to the trial court his argument
that the original plea agreement should be enforced and that the trial court rejected this
argument. The trial court summarized the certified question presented for review. We
conclude that the record here is adequate to allow us to review the question of law
presented.

       Generally, when a defendant has pled guilty as part of a plea agreement, the
agreement must be honored. ―[W]hen a plea rests in any significant degree on a promise
or agreement of the prosecutor, so that it can be said to be part of the inducement or
consideration, such promise must be fulfilled.‖ Santobello v. New York, 404 U.S. 257,
262 (1971). In Santobello, the prosecution promised to abstain from a sentence
recommendation and then, after the defendant pled guilty, recommended the maximum
sentence, which the judge imposed. Id. at 259. The United States Supreme Court held
that the judgment could not stand and remanded for consideration of whether the
defendant was entitled to specific performance of the agreement or, instead, the
opportunity to withdraw his plea. Id. at 263.

       Consequently, agreements such as plea agreements or immunity agreements must
be enforced if the defendant has performed his part of the bargain. In State v. Howington,
the defendant and the prosecution entered into an unwritten immunity agreement that
required him to testify truthfully at his preliminary hearing, implicating a co-defendant.
907 S.W.2d 403, 405 (Tenn. 1995). The defendant testified, incriminating both his co-
defendant and himself, but the State contended that it was no longer bound by the
agreement because of an alleged inconsistency in the defendant‘s testimony regarding the
amount of money he obtained in the course of the murder. Id. The Tennessee Supreme
Court concluded that there was no material breach by the defendant and that the State
should have been obligated to perform under the agreement. Id. at 411 (reducing
conviction to second degree murder, which was the crime the State had agreed to
recommend the defendant to be bound upon).

       On the other hand, when a plea offer is contingent on an event that does not occur,
such an offer is clearly not enforceable. In State v. Street, the defendant asserted that it
was error for the trial court to refuse to enforce a plea offer that was contingent on the
actions of his co-defendants. 768 S.W.2d 703, 711 (Tenn. Crim. App. 1988). This court

                                              6
concluded that the State could withdraw the offer when the contingency – the other
defendants‘ willingness to plead guilty – did not occur. Id.

        Whether a prosecutor can withdraw from an agreement prior to its acceptance by
the court has been subject to debate. In Cooper v. United States, the Fourth Circuit Court
of Appeals concluded that the Fifth Amendment right to due process and Sixth
Amendment right to counsel were both implicated in the prosecution‘s withdrawal of a
plea offer prior to court approval. 594 F.2d 12, 18 (4th Cir. 1979) overruled by Mabry v.
Johnson, 467 U.S. 504 (1984). The Cooper court held that a specific, unambiguous, and
reasonable proposal must, under principles of ―constitutional fairness,‖ be fulfilled if the
defendant communicates his assent in a reasonable time. Id. at 19. The Cooper court
concluded that the proper remedy was specific performance of the plea offer. Id. at 20.
Other courts, however, declined to find that plea offers were binding on the government
prior to court approval. See, e.g., Gov’t of Virgin Islands v. Scotland, 614 F.2d 360, 365
(3d Cir. 1980).

       The United States Supreme Court, in Mabry v. Johnson, addressed the
constitutionality of the prosecution‘s ability to withdraw an offer, citing ―a conflict in the
Circuits, coupled with … concern that an important constitutional question had been
wrongly decided.‖ Mabry v. Johnson, 467 U.S. 504, 506-07 (1984) (footnote omitted)
disapproved of on other grounds by Puckett v. United States, 556 U.S. 129 (2009). The
Mabry court held that ―[a] plea bargain standing alone is without constitutional
significance; in itself it is a mere executory agreement which, until embodied in the
judgment of a court, does not deprive an accused of liberty or any other constitutionally
protected interest.‖ Id. at 507 (footnote omitted).

       After Mabry, courts have continued to hold that plea offers are revocable until
accepted by the court, even if the defendant has accepted the terms. This is because ―the
[government‘s] obligation to perform is conditional on actual performance by the
defendant ….‖ United States v. Vizcarrondo-Casanova, 763 F.3d 89, 102-04 (1st Cir.
2014). It is clear, for example, that the defendant remains free to repudiate a signed plea
agreement prior to the time that he pleads guilty and the plea is accepted by the court.
See People v. Rhoden, 89 Cal. Rptr. 2d 819, 823 (Cal. Ct. App. 1999), as modified on
denial of reh’g (Nov. 23, 1999); Commonwealth v. Sandy, 509 S.E.2d 492, 494 (Va.
1999). Courts have held that ―‗[a] plea agreement that has not been entered and accepted
by the trial court does not bind the parties.‘‖ United States v. Kuchinski, 469 F.3d 853,
857-58 (9th Cir. 2006) (quoting United States v. Fagan, 996 F.2d 1009, 1013 (9th Cir.
1993)). Neither are the parties justified in relying on the contract until it has been
accepted by the court. United States v. Norris, 486 F.3d 1045, 1049 (8th Cir. 2007); see
People v. Cantu, 107 Cal. Rptr. 3d 429, 431 (Cal. Ct. App. 2010) (―Judicial approval is
an essential condition precedent to any plea bargain. A plea bargain is ineffective unless
                                              7
and until it is approved by the court.‖); Shields v. State, 374 A.2d 816, 820 (Del. 1977)
(―[T]he State may withdraw from a plea bargain agreement at any time prior to, but not
after, the actual entry of the guilty plea by the defendant or other action by him
constituting detrimental reliance upon the agreement.‖)

        Tennessee caselaw on the withdrawal of plea offers has likewise consistently
noted that a plea bargain cannot be enforced until it has been approved by the trial court.
―Plea agreements … have been treated as contracts and are enforceable once the
condition precedent is met; that is, the trial judge accepts the agreement.‖ Howington,
907 S.W.2d at 407 & n.8 (noting that the agreement is ―not enforceable until it has been
accepted by the trial judge‖). ―The ultimate decision whether to accept or reject a
particular plea bargain agreement rests entirely with the trial court.‖ State v. Turner, 713
S.W.2d 327, 329 (Tenn. Crim. App. 1986) (holding that because the court has the power
to reject a plea agreement, ―[a] prerequisite to the effectiveness and enforceability of a
plea agreement is its approval by the court‖). Accordingly, ―[a]n offer to plea bargain is
‗revocable until accepted by the trial court.‘‖ Street, 768 S.W.2d at 711 (quoting Turner,
713 S.W.2d at 329). Because the plea in Turner was not enforceable prior to its
acceptance by the trial court, this court concluded that the trial court had erred in
instructing the prosecutor to reinstate a plea offer that had been refused due to deficient
representation by the defendant‘s counsel.2 Turner, 713 S.W.2d at 330. In State v.
Street, this court concluded that a contingent plea offer could be withdrawn when the
contingency did not occur, holding that the defendant could not complain that the State
had failed to reach an agreement with the co-defendants ―when there has been no
submission [of the plea agreement] to the court for its approval.‖ Street, 768 S.W.2d at
711. The defendant distinguishes these cases by noting that in Street, the contingency did
not occur and that in Turner, the defendant rejected the initial offer. In Metheny v. State,
the defendant argued that his jury convictions should be reversed because the District
Attorney General had ―failed to honor a plea agreement entered into by the parties.‖
Metheny v. State, 589 S.W.2d 943, 945 (Tenn. Crim. App. 1979). While the court
concluded that the issue was waived, it also noted that there was ―[n]o authority … to
support the appellant‘s position that a plea bargaining agreement will be enforced prior to
its acceptance by the court.‖ Id.

        There is, however, a condition under which courts have enforced plea agreements
even prior to court approval: when the defendant has relied on the agreement to his
detriment. A defendant who relies on the government‘s promise to his detriment may be
entitled to specific performance under due process. Vizcarrondo-Casanova, 763 F.3d at

       2
          Ultimately, the federal courts concluded that the prosecution could only rescind the
original offer if it could overcome a ―presumption of vindictiveness.‖ Turner v. Tennessee, 940
F.2d 1000, 1002 (6th Cir. 1991).
                                              8
102 (concluding that the obligation to perform does not arise until either performance or
―perhaps some other form of detrimental reliance‖ by the defendant). ―The critical point
of no return for enforcement of a plea bargain is the entry of plea or detrimental
reliance.‖ Cantu, 107 Cal. Rptr. 3d at 431. The State may be prevented from repudiating
the agreement ―if the State has materially benefited from the terms of the agreement or
the defendant has relied on the terms of the agreement to his substantial detriment.‖
Mendoza v. State, 869 N.E.2d 546, 551 (Ind. Ct. App. 2007). Detrimental reliance may
be demonstrated ―by taking some substantial step or accepting serious risk of an adverse
result following acceptance of the plea offer.‖ Reed v. Becka, 511 S.E.2d 396, 403 (S.C.
Ct. App. 1999). Providing the government with information regarding criminal offenses
constitutes such a detriment. Custodio v. State, 644 S.E.2d 36, 39 (S.C. 2007) (finding
detrimental reliance when the defendant provided information regarding other burglaries
he had committed and returned over half a million dollars in stolen property); Moody v.
State, 716 So.2d 592, 595 (Miss.1998) (finding detrimental reliance when the defendant
gave truthful testimony to grand jury and at trial, took a polygraph examination, and gave
information about a separate crime); Bowers v. State, 500 N.E.2d 203, 204 (Ind. 1986)
(finding detrimental reliance when the defendant provided information relevant to
another investigation). Taking a polygraph examination may also be a detriment
sufficient to make the contract enforceable. In re Kenneth H., 95 Cal. Rptr. 2d 5, 9 (Cal.
Ct. App. 2000), as modified (Apr. 25, 2000). It has also been suggested that a contract
may be enforced if there is ―evidence of devious practices by the state such as bad-faith
negotiations aimed at gaining an improper advantage.‖ State v. Singleton, 801 So. 2d
1150, 1159 (La. Ct. App. 2001); see also Wayne R. LaFave, et al., 5 Crim. Proc. § 21.2(f)
(4th ed.) (―Providing information to government authorities, testifying for the
government, confessing guilt, returning stolen property, making monetary restitution,
failing to file a motion to have charges presented to a grand jury, submitting to a lie
detector test and waiving certain procedural guarantees have all been held to constitute
acts made in detrimental reliance upon a prosecutor‘s breached promises.‖ (quoting Note,
58 N.C.L. Rev. 599, 606-07 (1980))).

       In Metheny, this court noted that ―[o]nly upon a finding of … inexpiable prejudice
should a defendant be permitted the option of specific performance by the trial court.‖
Metheny, 589 S.W.2d at 946 (quoting Wynn v. State, 322 A.2d 564, 568 (Md. Ct. Spec.
App. 1974), disapproved of by State v. Brockman, 357 A.2d 376 (Md. 1976)).
Accordingly, ―[p]lea bargains should not be specifically enforced in the absence of
affirmative evidence of prejudice arising from the bargain, which prejudice cannot be
remedied by permitting the defendant to withdraw his plea and commence anew.‖ Id.

       In this case, the defendant argues that he relied on the State‘s promise to his
detriment when he waived his right to the preliminary hearing and presentment of the
case to the grand jury. However, we conclude that the defendant‘s waiver was not the
                                            9
type of ―inexpiable prejudice‖ that would entitle him to specific performance. See
Metheny, 589 S.W.2d at 946 (quoting Wynn, 322 A.2d at 568). After the denial of the
motion to compel, the defendant was granted a preliminary hearing and ultimately
indicted by the grand jury, returning him to the position he occupied prior to the plea
offer. The defendant argues that he suffered prejudice because he was imprisoned from
the time of his arrest until he finally entered his open guilty pleas. While the record
supports the conclusion that the defendant remained in prison, this situation is attributable
to a combination of factors, including the trial court‘s denial of bond on more than one
occasion and the process of interlocutory appeal. The defendant does not argue that the
trial court could have refused to approve the plea offer, which would have placed him in
substantially the same position he occupied when the prosecution withdrew the offer. We
hold that the defendant‘s waiver of the preliminary hearing and presentment to the grand
jury does not constitute detrimental reliance such that he is entitled to specific
performance of the plea agreement and that the trial court did not err in remanding for a
preliminary hearing and indictment to restore the defendant to the position he occupied
prior to making the bargain.

       At least one other court has come to the same conclusion. In State v. Beckes, the
defendant entered into a plea agreement and waived his right to a preliminary hearing as
part of the agreement. 300 N.W.2d 871, 872 (Wis. Ct. App. 1980). The defendant then
filed a request for substitution of judges, and the prosecution took the opportunity to
refuse to comply with its bargain. Id. The trial court, while acknowledging that the
defendant committed no breach, allowed the prosecution to withdraw the offer and
scheduled a preliminary hearing to return the defendant to the position that he had
occupied before entering the agreement. Id. The appellate court noted ―that a defendant
who does some act to fulfill his part of the bargain in reliance on a plea agreement (e.g.,
makes restitution of stolen money or acts as an informer) is entitled to some form of relief
when the government breaches its part of the agreement.‖ Id. at 873. However, the court
ultimately concluded that the defendant was ―restored his right to have a preliminary
examination‖ and that it ―was not fundamentally unfair for defendant to be returned to
pre-bargain position when the bargain was withdrawn.‖ Id. at 874. Implicitly, the court
concluded that the waiver of the preliminary hearing did not constitute detrimental
reliance which required specific performance of the contract. Id.; see also Vizcarrondo-
Casanova, 763 F.3d 89, 103-04 & n.9 (1st Cir. 2014) (holding that the defendant did not
establish that his filing of a motion to change his plea constituted detrimental reliance);
Rhoden, 89 Cal. Rptr. 2d at 825-26 (concluding that the defendant did not detrimentally
rely on plea offer when she could have cross-examined a witness or requested a
continuance to further prepare for the cross-examination). We also conclude that the
defendant was not entitled to specific performance based on his waiver of the preliminary
hearing.

                                             10
        We note that in this case, the offer was withdrawn because there was apparently
internal disagreement in the District Attorney General‘s office regarding the propriety of
the offer. In general, ―[t]he staff lawyers in a prosecutor‘s office have the burden of
‗letting the left hand know what the right hand is doing‘ or has done.‖ Santobello 404
U.S. at 262. Although ―[t]he Due Process Clause is not a code of ethics for prosecutors,‖
Mabry, 467 U.S. at 511, ―[t]he failure of the Government to fulfill its promise ... affects
the fairness, integrity, and public reputation of judicial proceedings.‖ United States v.
Goldfaden, 959 F.2d 1324, 1328 (5th Cir. 1992); see also Cooper, 594 F.2d at 19, 20
(holding that ―once presented, such a proposal may not be withdrawn in the face of
proffered acceptance for no other reason than that a superior disagrees with an apparently
authorized subordinate‘s judgment in making it‖ and noting that the government should
―incorporate reservations relating to higher level approval‖ into such offers). While the
prosecution, like the defense, is entitled to withdraw from a plea agreement prior to its
acceptance by the court absent detrimental reliance, we caution that the prosecution
should bear in mind that its actions affect ―the fairness, integrity, and public reputation of
judicial proceedings.‖ Goldfaden, 959 F.2d at 1328.

                                      CONCLUSION

       Based on the foregoing analysis, we affirm the judgments of the trial court.




                                                  _________________________________
                                                  JOHN EVERETT WILLIAMS, JUDGE




                                             11
