                 This opinion is subject to revision before final
                        publication in the Pacific Reporter

                                 2017 UT 49


                                    IN THE

       SUPREME COURT OF THE STATE OF UTAH

                              STATE OF UTAH,
                                 Appellee,
                                       v.
                       SAMUEL AARON FRANCIS,
                             Appellant.

                              No. 20150616
                          Filed August 15, 2017

                  On Appeal of Interlocutory Order

                      Third District, Salt Lake
                   The Honorable Royal I. Hansen
                          No. 131908488

                                 Attorneys:
     Sean D. Reyes, Att’y Gen., John J. Nielsen, Asst. Solic. Gen.,
          and Clint T. Heiner, Salt Lake City, for appellee
           Kelly Ann Booth, Salt Lake City, for appellant

     JUSTICE PEARCE authored the opinion of the Court, in which
        CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
             JUSTICE DURHAM and JUDGE TOOMEY joined.
 Having been recused, JUSTICE HIMONAS does not participate herein;
          COURT OF APPEALS JUDGE KATE A. TOOMEY sat.


   JUSTICE PEARCE, opinion of the Court:
                           INTRODUCTION
    ¶1 Samuel Aaron Francis and the State entered into a plea
agreement the weekend before Francis’s trial. The State rescinded its
offer before Francis entered his plea because Francis’s alleged victim
objected to the agreement. Francis’s counsel then represented to the
district court that she was not ready for trial because she had ceased
trial preparation once she believed the parties had reached a plea
                          STATE v. FRANCIS
                        Opinion of the Court


agreement. The district court continued trial. Francis later filed a
motion to enforce the plea agreement. The district court denied
Francis’s motion. Francis petitioned for interlocutory appeal asking
the court of appeals to remand with orders to enforce his agreement
with the State. The court of appeals granted the petition, then
certified the appeal to us. We affirm.
                           BACKGROUND
    ¶2 After Samuel Aaron Francis allegedly beat up his girlfriend,
the State leveled a host of charges against him: three third degree
felony counts of aggravated assault, a third degree felony count of
obstruction of justice, and a misdemeanor count of interruption of a
communication device.
    ¶3 The district court scheduled a jury trial to begin on Monday,
June 15, 2015. On the Friday before trial, the State agreed that if
Francis would plead to one of his four third degree felony charges, it
would offer him a “402 reduction after successful completion of
probation, 24 months supervised probation, [and] no agreement for
recommendation of no jail at sentencing.” Francis accepted the plea
offer on Saturday and emailed a copy of the agreement to the State
for review on Sunday.
   ¶4 The State returned the agreement with substantive edits the
morning of trial. 1 An hour later—before the judge took the bench
and before Francis entered his plea—the State rescinded its offer
because the alleged victim disapproved of the agreement.
   ¶5 At Francis’s request, the court granted a continuance and
rescheduled the jury trial for August 2015. Francis then filed a
motion to enforce the plea agreement, arguing that he had
detrimentally relied on the State’s offer. The court rejected the
motion. Francis timely sought interlocutory review in the court of
appeals. We now review this case on certification from the court of
appeals.



_____________________________________________________________
   1 The State argues that it was still engaged in plea agreement
negotiations at the time of rescission and, thus, it rescinded the plea
offer before an agreement had been reached. For purposes of this
opinion, we assume without deciding that Francis had accepted a
valid plea offer at the time the State rescinded.



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    ¶6 Francis argues that he was prejudiced because, having relied
on the recently rescinded plea offer, he was unprepared to go
forward with trial. Next, he alleges that the withdrawn plea
agreement caused him to forego “the investigation and assertion of
claims regarding alleged Brady and Tiedemann violations.” He also
argues that he was prejudiced because one of his witnesses had
expressed hesitancy to return and testify. The State counters that it
could rescind an offer at any time before the court accepts a plea.
   ¶7 We affirm the district court’s order denying enforcement of
the plea agreement, but we do so for slightly different reasons than
the district court articulated. We have jurisdiction under Utah Code
section 78A-4-103(2)(d).
              ISSUES AND STANDARD OF REVIEW
    ¶8 Francis argues that the district court erred in rejecting his
motion to enforce the State’s plea offer because plea agreements
create a contractual right for defendants and because he relied to his
detriment upon the State’s offer. The enforceability of a plea
agreement presents a question of law we review for correctness. State
v. Stringham, 2001 UT App 13, ¶ 10, 17 P.3d 1153.
                            ANALYSIS
   ¶9 Francis admits that there is no Utah case squarely addressing
whether the State can withdraw a plea agreement before it is
accepted by the court. He relies on language in State v. Patience to
emphasize that “[m]any courts, including the Utah Supreme Court
and the United States Supreme Court, have referred to plea
agreements as contracts and have applied principles derived from
contract law to plea agreements.” 944 P.2d 381, 386 (Utah Ct. App.
1997). 2 He acknowledges that contract law principles “cannot be

_____________________________________________________________
   2 Francis also quotes the following language from State v. Patience:
“in interpreting plea agreements or determining their validity, courts
may in certain circumstances hold the government to a higher
standard than the defendant.” 944 P.2d 381, 387 (Utah Ct. App.
1997). Patience does not describe what it means to hold the State to a
higher standard, but it borrows that concept from the United States
Court of Appeals for the Fourth Circuit. See United States v. Ringling,
988 F.2d 504, 506 (4th Cir. 1993). The Ringling court stated that when
interpreting a plea agreement “both constitutional and supervisory
concerns require holding the government to a greater degree of
                                                        (continued . . .)


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blindly incorporated into the criminal law in the area of plea
bargaining.” Id. at 387 (citation omitted). However, he asks us to
apply contract law provisions “more broadly in the plea agreement
context in order to ensure that a defendant’s constitutional rights are
protected.” Relying on contract principles, he argues that his “clear
acceptance” of the State’s “clear, unconditional, specific, and
complete” offer created an enforceable plea agreement. Based upon
the Utah Court of Appeals’ holdings in both Patience, 944 P.2d at 387,
and State v. Nine Thousand One Hundred Ninety-Nine Dollars, 791 P.2d
213 (Utah Ct. App. 1990), Francis argues that contract principles
required the district court to enforce his plea agreement because he
relied upon the agreement to his detriment.
   ¶10 Using the language of contract law, the district court
determined that the State is “not bound by [the plea agreement] until
there is an acceptance.” The district court stated that the plea
agreement “was not accepted by the Court or entered of record.” The
court thus concluded that “[t]he State can rescind the offer up and to
the point that the Court accepts the offer and enters the plea of
record, neither of which took place here.”
   ¶11 We begin from the premise that a defendant does not have a
constitutional right to a plea agreement. Weatherford v. Bursey, 429
U.S. 545, 561 (1977). But once an agreement is reached, the parties
have what the United States Supreme Court has described as
“essentially” a contract. See Puckett v. United States, 556 U.S. 129, 137
(2009). But the Supreme Court also recognizes that the analogy to
contract, “may not hold in all respects.” Id. Indeed, although contract
principles may provide a useful framework within which to consider


(continued . . .)
responsibility than the defendant (or possibly than would be either
of the parties to a commercial contract) for imprecisions or
ambiguities in plea agreements.” Id. (citation omitted). We do not
understand the Patience court to have introduced the “higher
standard” language as an attempt to impose a code of conduct on the
State with respect to plea agreements. We note, however, that
playing games with plea agreements would violate Utah Standard of
Professionalism and Civility 9—“Lawyers shall not hold out the
potential of settlement for the purpose of foreclosing discovery,
delaying trial, or obtaining other unfair advantage . . . .”




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plea agreements, “there are limits to the contract analogy.” Patience,
944 P.2d at 387; United States v. Ringling, 988 F.2d 504, 506 (4th Cir.
1993) (“Plea bargains rest on contractual principles . . . . Yet, the
analysis of the plea agreement must be conducted at a more
stringent level than in a commercial contract because the rights
involved are generally fundamental and constitutionally based.”);
United States v. Olesen, 920 F.2d 538, 542 (8th Cir. 1990) (recognizing
“the inherent limits of the contract analogy”); People v. Evans, 673
N.E.2d 244, 247 (Ill. 1996) (stating that “the application of contract
law principles to plea agreements may require tempering in some
instances”). Thus, while “[p]lea agreements are like contracts[,] . . .
they are not contracts, and therefore contract doctrines do not always
apply to them.” Olesen, 920 F.2d at 541.
    ¶12 We accept the district court’s conclusion that the State was
not bound by the plea agreement, but we articulate a slightly
different rationale than the one the district court employed. The
district court asserted that the State could rescind the plea agreement
at any point prior to its presentation to the district court. We refine
the district court’s articulation because it is too narrow and leaves no
room for ways in which a defendant may detrimentally rely on an
agreement before it is presented to the district court. For example, a
plea agreement might require a defendant to perform by
       [p]roviding 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 . . . .
WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 21.2(f) (4th ed.
2015) (citation omitted).
    ¶13 Those actions “have all been held to constitute acts made in
detrimental reliance upon a prosecutor’s breached promises.” Id.
(citation omitted); see also People v. Macrander, 756 P.2d 356, 361
(Colo. 1988) (en banc) (finding that defendant detrimentally relied on
plea agreement when he waived his right to a preliminary hearing);
Moody v. State, 716 So. 2d 592, 595 (Miss. 1998) (finding detrimental
reliance when defendant gave statements regarding charged and
uncharged crimes and supporting those statements by taking lie
detector tests); Custodio v. State, 644 S.E.2d 36, 39 (S.C. 2007) (finding
detrimental reliance when defendant took substantial steps in
cooperating with law enforcement by informing them of his other


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crimes and helping them return “over a half million dollars in stolen
property”).
   ¶14 When a defendant has reasonably and detrimentally relied
on a plea agreement, the State should not be able to withdraw a plea
agreement just because it has not yet been presented to the district
court. As the First Circuit explained,
       absent evidence to the contrary, we will not assume
       that the government has bound itself contractually to
       offer a particular plea . . . . Instead, unless a plea
       agreement states otherwise, we will presume that the
       agreement itself simply documents “an offer by the
       government: if the defendant pleads guilty and if that
       plea is accepted by the court, then the government will
       perform as stipulated in the agreement.” However,
       “[u]ntil performance [takes] place by [the defendant],
       the government [is] free to withdraw its offer.” In
       short, the obligation to perform is conditional on actual
       performance by the defendant (or perhaps some other
       form of detrimental reliance).
United States v. Vizcarrondo-Casanova, 763 F.3d 89, 103 (1st Cir. 2014)
(alterations in original) (citations omitted). “[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.” Shields v. State, 374 A.2d 816, 820 (Del. 1977).
    ¶15 Francis asserts that defendants have a right to the
enforcement of plea deals prior to court acceptance simply based on
“a reasonably formed expectation.” And Francis cites two cases in
hopes of supporting that assertion. See Nine Thousand One Hundred
Ninety-Nine Dollars, 791 P.2d 213; State v. Bero, 645 P.2d 44 (Utah
1982). Neither of the cases Francis cites speaks persuasively to the
issue before us.
   ¶16 In Nine Thousand One Hundred Ninety-Nine Dollars, the court
of appeals stated that “[a] defendant may . . . be entitled to
enforcement of his or her plea agreement on the basis of a reasonably
formed expectation.” 791 P.2d at 216 (emphasis added). A court of
appeals pronouncement does not, of course, bind this court to a
course of action. Further, the statement Francis quotes was dicta. The
court of appeals ruled that the parties “never reached a ‘meeting of
the minds,’” so “there [was] no ‘agreement’ to be fulfilled.” Id.


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(quoting Bero, 645 P.2d at 46). The court did not, therefore, need to
examine the question of what defendant needed to demonstrate to
enforce the agreement.
   ¶17 In Bero, we noted that the United States Court of Appeals for
the Fourth Circuit had “held that a constitutional right to
enforcement of plea agreements may arise before a contract is
reached because of reasonably formed expectations of the
defendant.” Bero, 645 P.2d at 47. But this statement was dicta as the
Bero court, like the court of appeals in Nine Thousand One Hundred
and Ninety-Nine Dollars, found that there was never any agreement to
be enforced. Id.
    ¶18 Francis also argues that the district court should have
enforced the plea agreement because he relied on it to his detriment.
Francis lists four ways in which withdrawal of the agreement
prejudiced him: (1) he “forwent the investigation and assertion of
claims regarding alleged Brady and Tiedemann violations;” (2) he
“presented himself on the day of trial without the benefit of counsel
who could provide effective assistance” because, Francis claims, the
State had “induced” him to forego trial preparation; (3) “at least one
witness who appeared at the trial on June 15 is likely to fail to appear
at any subsequent hearing in this matter;” and (4) he “is required to
pay the expert he retained in this case additional monies.” We are
unpersuaded by his arguments.
   ¶19 First, Francis’s assertion that he forewent his
Brady/Tiedemann claims appears to be inaccurate. Francis briefed
and argued those claims. The district court rejected them. If the
withdrawn plea agreement somehow interfered with his ability to
investigate, brief, or argue his Brady/Tiedemann claims, Francis does
not explain how that is.
    ¶20 Second, Francis was not forced to go to trial unprepared.
The district court granted his motion for a continuance after the State
withdrew the plea agreement. Francis may have had an argument if
the court had required trial to go forward that morning and he could
demonstrate that his counsel was reasonably unprepared. But the
district court mitigated any potential prejudice by continuing the
trial. Any reliance ceased to be detrimental once the court eliminated
the prejudice flowing from that reliance. See State v. Moss, 921 P.2d
1021, 1027 (Utah Ct. App. 1996) (holding that “[w]here the defendant




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is simply placed in the same position as he or she was prior to the
guilty plea, there is no undue prejudice to the defendant”). 3
    ¶21 Francis’s third assertion, that a witness “is likely to fail to
appear at any subsequent trial” likewise fails to move the needle.
Courts are routinely faced with reluctant and unwilling witnesses.
Such witnesses can be subpoenaed and made to appear in court or
face contempt proceedings. See UTAH R. CRIM. P. 14(a)(7) (“Failure to
obey a subpoena without reasonable excuse may be deemed a
contempt of the court responsible for its issuance.”). Moreover, even
if Francis could show that the witness was no longer available, to
meet his burden of persuasion, Francis would need to do more than
point to that witness’s absence. Francis would have to explain who
the witness is, what the testimony would have been, why the
testimony cannot be obtained from another source, and how the lack
of that testimony adversely affected his defense before we could
conclude that he had been prejudiced.
    ¶22 Finally, we are unsure how Francis would have incurred
additional expenses for his expert witness “because of the State’s
actions.” Francis simply argues that “[the expert witness] was called
off when the plea agreement was reached.” Although we can
imagine that there may be potential for costs associated with the
expert having to prepare twice, Francis does not argue that this is
what occurred. Nor are we convinced that this increase in cost is the
sort of reliance that would compel the enforcement of a plea
agreement. As explained above, courts have found detrimental
reliance when defendants have provided testimony, assisted with
investigations, returned stolen property, and taken polygraph tests.
See supra ¶¶ 12–13. We are not prepared to hold, on the record before
us, that a potential and unquantified increase in the cost of defense
gives rise to the same sort of prejudice. Simply stated, Francis did


_____________________________________________________________
   3 Francis also argues that he was prejudiced by “the State’s
objection to [his] request to continue trial” and “[t]hat the court did
not grant the State’s request does not alleviate the prejudice suffered
by Francis.” Francis does not elaborate on this point, and from the
record it would appear that by continuing the trial date, the district
court entirely alleviated any prejudice Francis might have suffered if
he had been forced to go to trial that morning.



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not demonstrate that he relied upon the plea agreement to his
detriment.
                           CONCLUSION
   ¶23 The State may withdraw from a plea bargain agreement at
any time prior to, but not after, the actual entry of defendant’s guilty
plea or other action by defendant constituting detrimental reliance
on the agreement. Francis did not enter a guilty plea or otherwise
perform under the terms of his plea agreement with the State before
the State rescinded its offer. And Francis has failed to show that he
detrimentally relied on the State’s offer. We, therefore, affirm the
order of the district court denying Francis’s motion to enforce his
plea agreement and remand for further proceedings.




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