                                                                                           COUf' OF AM"
                                                                                              J        ALS
                                                                                               DIVISICs, 11
                                                                                       2013 OCT 15    AIN B:
                                                                                                               506




                                                                                          si




     IN THE COURT OF APPEALS OF THE STATE OF WASHIP

                                                  DIVISION II

STATE OF WASHINGTON,                                                   No. 44483 -6 -II


                                  Respondent,                         Consolidated with:
                                                           I           No. 44486 -1 - II
         r



J. R.,                                                             UNPUBLISHED OPINION


                                      n



         JOHANSON, A. C. J. —     In this. consolidated appeal, JR, born in 19.96, appeals the manifest


injustice disposition imposed by the juvenile court following his guilty plea to residential

burglary.' He argues that the prosecutor and probation counselor undercut the agreed disposition

recommendation and breached the plea agreement, requiring reversal of the manifest injustice

disposition. Because we agree that the prosecutor breached the plea agreement, we reverse and


remand for proceedings consistent with this opinion.

                                                        FACTS


         On October 4, 2012, the State filed charges against JR for fourth degree assault with

sexual motivation. The juvenile court held a bench trial on December 20, 2012, and adjudicated

JR guilty    of   the   charge.   It delayed disposition, however, and ordered JR to undergo a


psychosexual evaluation and polygraph examination.




   A commissioner of this court originally considered this appeal on an accelerated basis under
RAP 18. 13,   and   then   referred   it to   a panel of judges.
No. 44483- 6- II/ No. 44486 -1 - II


         On December 9, 2012, prior to JR' s assault trial, JR entered a home without permission

and   stole   a number       of    items.       JR admitted to police that he committed the crime, and on

December 10, the State charged him with residential burglary.

         On    January      3,    2013, JR asked the juvenile court for a deferred disposition on the


residential    burglary      adjudication,             which       the   deputy      prosecuting     attorney, Julia Eisentrout,


opposed because the burglary victim was also the victim of the earlier assault adjudication and

JR had committed this burglary while the assault charge was pending trial in violation of his

terms    of release.    JR' s probation counselor, Kisa Spencer, also opposed a deferred disposition

and asked for a joint disposition hearing on the burglary and the assault charges to occur after JR

had   completed      the previously ordered                polygraph examination and psychosexual evaluation.                         The


juvenile court denied JR' s motion for a deferred disposition, at which time JR told the juvenile

court that he wished to plead guilty to the burglary charge.

          JR handed the juvenile               court       a   Statement       on   Plea   of   Guilty,   wherein    it   stated   that " I



understand that the prosecuting attorney will make the following recommendation to the judge[:]

Local Sanctions."           Clerk' s Papers ( CP) at 28.                  The statement additionally provided that it was

JR' s understanding that the               probation counselor would                  also   recommend       local   sanctions.       The



statement was signed by JR, his attorney, and the juvenile court, but not by the prosecutor or

probation counselor.             Before accepting JR' s guilty plea, the juvenile court asked JR a series of

questions     to   ensure   that   he   understood         the   rights   he   was   waiving.     Specifically, the juvenile court

 asked   JR if he    understood         that " it is   a   local   sanctions case,"        meaning that the court would impose

 a penalty of 30 days of confinement in a detention facility followed by not more than 12 months

 of community supervision together with other terms and conditions, unless the court found that
 imposing     local    sanctions        was    a   manifest         injustice.       The juvenile court also asked JR if he

                                                                          2
No. 44483- 6- II/ No. 44486 -1 - II



understood that the judge or commissioner could determine that local sanctions were not

appropriate in the case and could commit JR to a juvenile correctional institution. JR responded
                                                                                                                            2
to both     questions    that he     understood         those terms     and   that he   still   wanted   to   plead   guilty.


Accordingly, the juvenile court accepted JR' s guilty plea and continued the disposition to
coincide with    the disposition           on   the   assault charge.   Notably, the juvenile court' s colloquy did

not                     address      the        prosecutor' s     or    probation       counselor' s     local    sanctions
        expressly


recommendations.




          On February 1, 2013, the juvenile court held a joint disposition hearing on both charges.
Based on JR' s responses on the psychological evaluation and polygraph examination, Spencer

recommended a manifest injustice disposition of 52 weeks at a Juvenile Rehabilitation

Administration ( JRA)           facility   on    the   assault adjudication.     As to the residential burglary plea,

Spencer also recommended a manifest injustice disposition of 52 weeks based on the fact that

JR' s burglarizing the assault victim' s home had occurred while he was on release pending trial

for assaulting the       same victim.           As to the aggravating factors, Spencer stated that a standard

range disposition was clearly too lenient and that JR failed to comply with his house arrest, had
other complaints        filed   against     him,      and was a   danger to the community.          In addition, Spencer


stated that JR could get the appropriate help for his sexualized behavior with two years at a JRA

facility.

          Deputy prosecutor Eisentrout agreed with Spencer' s disposition recommendation on the

assault charge based on JR' s responses on the psychosexual evaluation and polygraph

 examination, as well as on JR' s admission to the police and the evaluator that he had committed



 2
     JR' s attorney also stated that JR was proceeding voluntarily and will full knowledge of his
 rights, and that this had been JR' s decision from the beginning of the charge.
                                                                  3
No. 44483- 6- II/ No. 44486 -1 - II


the   charged assault, yet          testified   at   trial that   he did   not commit         it.   As to the residential burglary

charge, Eisentrout stated:


          I do believe I had obtained this report, that I did inform him that I would
          recommend local sanctions. So I will stand by that recommendation, it was made
          before I had this report and evaluation and as noted, he does not have any criminal
          history. However, I do think it' s important to note that he did victimize the same
          family that was the subject of this and in the evaluation he said that he picked
          them out because he was angry with them.
                 It's also important to note that he violated his conditions of release on
          more        than    one oc—   occasion, they were revoked the second time that he violated
          them and committed the new offense. So the Court had several conversations with
          him about what was expected of him while he was on release for the Assault 4
          with sexual motivation and he just completely disregarded those conversations.
                  So I will stand by my recommendation, however, I —I did recommend
          local sanctions on the residential burglary. However, I am in agreement with the
          year recommendation on the Assault 4 sexual motivation.


Report    of   Proceedings ( RP) ( Feb. 1, 2013) at 52 -53 ( emphasis added).


          In response, JR argued that, as to the residential burglary charge, he had no criminal

                              had               responsibility for the           crime   by    pleading guilty.     In addition, he
history      points and             accepted




had not committed the burglary for any type of sexual motivation and had taken items that any

other "   kid[]"       would    take.    RP ( Feb. 1,       2013)     at   54.    As such, he argued that there were no


grounds for a manifest injustice disposition on the burglary charge and the only reason for

imposing such a disposition would be to get around the 52 -week maximum on the assault charge.
                                                                             that there
             In its           ruling, the juvenile                                                        many, many aggravating
                       oral                                court    stated                     were "




factors" in both cases that supported the findings of manifest injustice, which had been outlined

       the                                 by    the State."       RP ( Feb. 1, 2013)          at   61.   It noted that Sue Batson,
  by         probation officer and




the licensed mental health professional who evaluated JR, reported that he had a high risk to re-

 offend, was a danger to the community, and could not be treated effectively in a local setting.

 The juvenile court also stated that the most significant evidence regarding an appropriate



                                                                     rd
No. 44483- 6- II/ No. 44486 -1 - II


disposition          came     from JR himself,       who admitted       to   some "   extremely   disturbing"         behavior.   RP


 Feb. 1, 2013)         at     59. In addition, JR had taken a motor vehicle without permission, admitted to


using marijuana, and had " dirty" urinalyses. RP ( Feb. 1, 2013) at 60.

           Accordingly, the juvenile court found that JR was not a suitable candidate to remain in

the community, as it was not safe for the community or in his best interest, and the best chance

of helping him modify his behavior was to send him to a facility where he could receive

intensive treatment.                In its written order on adjudication and disposition as to the residential

                              the juvenile              found that JR had        an    offender   score   of "   1"    and that the
burglary     charge,                            court




following aggravating factors supported a manifest injustice disposition:

                        1]           There are other complaints which have resulted in diversion or a
           finding or plea of guilty which are not included as criminal history
                        2.]          Respondent committed this offense while under house arrest for
           another          charge     against the same victim ( victim' s family) as in this case.
           Respondent has failed to abide by release conditions and is a danger to the
           community.

                 3
CP    at   31.       On each charge, the juvenile court imposed a manifest injustice disposition of 52

weeks, for a total of two years' commitment to JRA. JR appeals.




3
    As to the assault charge, which is not at issue in this appeal, the juvenile court found the
following aggravating factors to support a manifest injustice disposition:
                        1.]          The victim was particularly vulnerable
                        2]           The current offense included a finding of sexual motivation
           pursuant to RCW 13. 40. 135
                        3.]          There are other complaints which have resulted in diversion or a
            finding or plea of guilty which are not included as criminal history
                        4.]          Respondent is      not amenable         to community based treatment.               The
            respondent         is    a   threat to the community safety.         He has failed a polygraph where
            he lied      and        admitted    to   offending   against      another   victim.      While on release
            conditions          he       committed    another    offense     against    the   same   victim ( victim' s


            family).
CPat7.


                                                                    5
No. 44483- 6- II/ No. 44486 -1 - II



                                                          ANALYSIS


          JR first argues that we should reverse the manifest injustice disposition for the residential

burglary adjudication because the prosecutor undermined the agreed disposition recommendation

for local sanctions and breached the plea agreement by highlighting aggravating factors in

support of an exceptional sentence. We agree that the prosecutor breached the plea agreement.

                                                  Breach of Plea Agreement


          Whether a breach of a plea agreement has occurred is a question of law, which the

appellate court reviews             de   novo.   A defendant may raise the issue of a prosecutor' s breach of a

plea agreement for the first time on appeal. State v. Sledge, 133 Wn.2d 828, 839, 947 P. 2d 1199

 1997).


          Plea   agreements are contracts and are analyzed under                       basic   contract principles.   Sledge,


133 Wn.2d        at   838.    Because a defendant gives up important constitutional rights by agreeing to a

plea   bargain, due          process     considerations     come       into play.     Sledge, 133 Wn. 2d     at   839. "     Due


process requires         a prosecutor       to   adhere   to the terms     of   the   agreement."    Sledge, 133 Wn.2d at


839.       Although          the    prosecutor     need     not   make      an      agreed     sentencing   recommendation


enthusiastically, the prosecutor must act in good faith, participate in the sentencing proceedings,

answer the court' s questions candidly, and not hold back relevant information regarding the plea

agreement.        State      v.   Williams, 103 Wn.       App.    231, 235 -36, 11 P. 3d 878 ( 2000) (        citing State v.

Jerde, 93 Wn.          App.       774, 780, 970 P. 2d 781,        review    denied, 138 Wn.2d 1002 ( 1999)),               review




 denied, 143 Wn.2d 1011 ( 2001).                 At the same time, the prosecutor may not undercut the terms of

the plea agreement " explicitly or by conduct evidencing an intent to circumvent the terms of the

 plea agreement."            Sledge, 133 Wn.2d at 840.




                                                                   2
No. 44483- 6- II/ No. 44486 -1 - II



         In determining whether a prosecutor violated the duty to adhere to the plea agreement,

the reviewing court considers the entire sentencing record and asks whether the prosecutor

contradicted the State' s recommendation by either words or conduct. Jerde, 93 Wn. App. at 780
                                 134 Wn.2d 176, 187, 949 P. 2d 358 ( 1998)).                        The appellate court applies
 citing State   v.   Talley,

an objective standard to determine whether the State has breached the plea agreement,

irrespective of the prosecutor' s motivations or justifications for the failure in performance.

Jerde, 93 Wn. App: at 780 ( citing In re Pers. Restraint of Palodichuk, 22 Wn. App. 107, 110,
589 P. 2d 269 ( 1978)).          The focus of the appellate court' s decision is on the effect of the State' s

actions, not    the intent behind them. Sledge, 133 Wn.2d                  at   843    n. 7.   "[   A] prosecutor ` could easily


undercut the plea agreement by placing emphasis on the evidence that supports findings that

aggravating factors         are present. "'   Jerde, 93 Wn.          App.       at   781 (     quoting Talley, 134 Wn.2d at

186).


         In the instant case, we first consider whether a plea agreement existed between the

                                                      Plea                                            by   the   prosecutor.   Here,
prosecution and       JR,   as   the Statement   on          of   Guilty   was not signed




however, Eisentrout told the juvenile court at the disposition hearing on February 1, 2013, that

she    did inform JR that         she would recommend             local   sanctions.         Thus, we conclude that a plea


agreement existed between JR and the State.


          In addressing whether the prosecutor breached the plea agreement, the State argues that
the prosecutor' s conduct did not cross the line into advocacy of an exceptional sentence because

 she    recommended         local   sanctions,   informed the juvenile court of information relevant to


 sentencing, and did not emphasize the information more than her recommendation of local
 sanctions.     We disagree with the State and conclude that the remarks made by Eisentrout as to



                                                              7
No. 44483- 6- II/ No. 44486 -1 - II



the residential burglary charge constituted unsolicited advocacy contrary to the State' s agreed

sentencing recommendation for local sanctions, and thus the State breached the plea agreement.

        Although Eisentrout twice stated that she stood by her recommendation for local

sanctions, the record shows that she was hesitant to do so, as she did not have the psychosexual

evaluation and polygraph examination results at the time she agreed to local sanctions. See In re

Palodichuk, 22 Wn.         App.   at   110 - 11 (   finding that, even though State initially fulfilled its plea

                                                                    prosecutor' s      reservation    of   recommended
obligation    by      making   agreed      recommendation,




sentence    tainted the sentencing      process so     that a breach      occurred);    Jerde, 93 Wn. App. at 777 -79

 prosecutors       breached      agreement          even   though        they   reiterated   the     agreed   sentencing


recommendation).          In addition, Eisentrout' s comments that JR victimized the same individual as

in the assault charge and committed the crime while on terms of release were unnecessary to

inform the juvenile court of relevant information, as Spencer had already informed the court of

such facts.4 See Jerde, 93 Wn. App. at 782 ( prosecutors unnecessarily commented on written

                                                                                       aggravating factors).    Further,
presentence     report    already before the          court   and   underscored




Eisentrout crossed the line into advocacy when she highlighted factors that could support a

manifest     injustice disposition      and   gave    such    information voluntarily.        See Williams, 103 Wn.


App.   at   238 ( "    The prosecutor made unsolicited references to statutory aggravating factors

                                                      thereby                   for those factors. "); Jerde, 93 Wn.
justifying    an   exceptional    sentence     and              advocated




App.   at   782 ( "   Without prompting from the court, the first prosecutor laid the foundation by


4
  Although it could be argued that Eisentrout made those comments in support of a manifest
injustice disposition on the assault charge, as she addressed both charges together, the same
cannot be said for her comment that JR " picked [ the Flochs] out because he was angry with
them."   RP ( Feb. 1. 2013) at 53. That comment appears to relate to the residential burglary
 charge, as   that    crime occurred after     Floch   accused      JR   of assault.
No. 44483- 6- II/ No. 44486 -1 - II



articulating several factual and legal arguments that would support an exceptional sentence. ");

State'   v.   Xaviar, 117 Wn.       App.   196, 201, 69 P. 3d 901 ( 2003) ( " The above unsolicited remarks


obviously refer to the aggravating factors in RCW 9. 94A.535 that justify an exceptional
sentence.       By highlighting these compelling aggravating facts, the prosecutor clearly signaled to

the court her lack of support for a standard range sentence and thereby ` effectively undercut the

plea agreement          in   a transparent attempt        to   sustain an exceptional sentence."') (         quoting Jerde, 93

Wn. App. at 782).

              The effect of Eisentrout' s comments are clear, as the juvenile court stated in its oral

ruling that there were " many, many aggravating factors" in both cases that supported a manifest
injustice disposition,          as outlined   by   the    probation counselor " and         by   the   State."   See RP ( Feb. 1,


2013)     at   61 (   emphasis added).     The juvenile court' s written findings also mirrored the comments


made     by     the State.     Therefore, based on these facts, the State undercut its recommendation for
                                                                        5
local    sanctions       and   breached the        plea    agreement.         In such a situation, JR has a choice of


remedies.        He may vacate the plea agreement and go to trial, or he may elect to enforce the plea

bargain agreement with the State in a new disposition hearing in front of a different judge.

Sledge, 133 Wn.2d at 846; Xaviar, 117 Wn. App. at 202.




 5 Because this conclusion is dispositive, we need not address JR' s remaining argument to reverse
 on the basis of the probation counselor' s broken promise, except to note that, in the event JR
 elects the remedy of a new sentencing hearing: ( 1) probation. counselors are not bound by plea

 agreements because they are agents of the juvenile court; and (2) despite the language in ,he plea
                                                                                           t
 agreement, the record does not support JR' s assertion that the probation counselor made any
 promise       to him to      recommend    local     sanctions      for the   residential   burglary     adjudication.    State v.

 Poupart, 54 Wn. App. 440, 445, 773 P. 2d 893, review denied, 113 Wn.2d 1008 ( 1989).
                                                                    E
No. 44483- 6- II/ No. 44486 -1 - II



          We reverse the juvenile court' s order on adjudication and disposition as to the residential


burglary charge and remand for proceedings consistent with this opinion.

          A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.

                                                                              i1         IT

                                                                     Johanson, A.C. J.

I
      r




               HuntJ.




                                                   10
No. 44483- 6- II/ No. 44486 -1 - II


          QUINN- BRINTNALL, J. ( concurring) —                           I concur with the majority that the State breached

its   plea agreement with            J. R.    I write separately to note that although the prosecutor did not sign

the statement of defendant on plea of guilty and J. R.' s pending assault was not disclosed on the

statement, there was a binding plea agreement and the prosecutor was obligated to recommend

local   sanctions.         Here, the prosecutor did not sign the statement of defendant on plea of guilty,


but at the disposition hearing she told the court that she had agreed to recommend local
sanctions.    Because the prosecutor acknowledged entering into a plea agreement with J.R., the

plea agreement is valid.


          Furthermore, J. R.' s failure to include his pending assault charge in his statement on plea

of    guilty does   not     invalidate the           plea agreement.           Fourth degree assault is a gross misdemeanor.


RCW 9A.36. 041( 2).              Under the juvenile offender sentencing standards a gross misdemeanor is

calculated as       1/ 4   of a point        for determining         a   juvenile   offender' s criminal   history   score.   RCW


13. 40. 0357( 2).          Fractional        points    are   to be   rounded       down.   RCW 13. 40. 0357( 2).       Therefore,



J.R.' s criminal history score is zero regardless of whether the fourth degree assault is included.

Accordingly, the failure to include J. R.' s fourth degree assault charge does not invalidate the
plea agreement.



           Here, there was a valid plea agreement between the State and J. R. which required the

prosecutor     to    recommend               local    sanctions.         I concur with the majority that the prosecutor' s

 statement at sentencing was a breach of the plea agreement and while there is no need to reach
 J. R.' s additional issues, the probation officer is not bound by the conditions of the plea

 agreement should            J. R.   elect a new       sentencing        hearing. I agree that the juvenile court' s order on




                                                                          11
No. 44483- 6- II/ No. 44486 -1 - II



adjudication and disposition as to the residential burglary should be reversed and this case

remanded to the juvenile court for further proceedings consistent with this opinion.




                                                             04:
                                                          One




                                                 12
