                               SECOND DIVISION
                                ANDREWS, P. J.,
                             MCFADDEN and RAY, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules/


                                                                    October 23, 2014




In the Court of Appeals of Georgia
 A14A1320. LEWIS v. THE STATE.

      RAY, Judge.

      Crawford Lewis, Patricia Reid, and Anthony Pope were indicted and charged

with violating Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) Act

(OCGA § 16-14-4) and felony theft by taking (OCGA § 16-8-2). As part of a

negotiated plea agreement, the State agreed to dismiss the RICO and related theft

charges against Lewis in exchange for his guilty plea to one misdemeanor count of

hindering and obstructing a law enforcement officer (OCGA § 16-10-24 (a)),

conditioned upon Lewis testifying truthfully at the trial against his co-defendants.

Lewis entered his negotiated plea with the understanding that the State would be

recommending a sentence of 12 months probation, a $500 fine, and 240 hours of

community service if he satisfied his obligation to testify truthfully against his co-
defendants. The trial court accepted his plea and deferred sentencing until the end of

trial. Lewis subsequently testified at trial, and his co-defendants were ultimately

convicted. The sole issue presented in this appeal is whether the trial court erred when

it imposed a sentence upon Lewis which differed from the understood terms of the

negotiated plea. For the reasons that follow, we vacate the sentence and remand the

case with direction.

      Instead of sentencing Lewis to 12 months probation pursuant to the State’s

recommendation, the trial court sentenced Lewis to 12 months in confinement. In so

doing, the trial court took the position that Lewis’ plea was not a negotiated plea.

However, the record shows that the parties had a plea discussion with the trial judge

in chambers prior to Lewis’ plea and that the trial judge “went along” with the State’s

recommendation at the time of the plea. Although this discussion was not transcribed,

it appears from the colloquy at the time of the plea that the State had made a sentence

recommendation and that the trial court had agreed to sentence Lewis in conformity

therewith, provided that Lewis later testified truthfully at the trial of his co-

defendants. Accordingly, we find that Lewis’ plea was negotiated and that the trial

court had accepted the plea under the terms understood by the parties.



                                           2
      1. In what appears to be a matter of first impression for Georgia’s appellate

courts, we are called upon to determine whether Lewis, after relying on the plea

agreement to his detriment, has a right to force the trial court to adhere to the terms

of the negotiated plea that it had earlier accepted.

      In Santobello v. New York, 404 U. S. 257 (92 SCt 495, 30 LE2d 427) (1971),

the United States Supreme Court acknowledged that plea bargaining is not only

desirable, but also that it is essential to the orderly disposition of criminal

proceedings. Id. at 260-261. However, plea bargaining is only acceptable when the

method of securing the agreement is fair. Id. at 261. In Santobello, the prosecutor

promised the defendant that in return for a guilty plea that the prosecutor would not

make a recommendation as to the sentence to be imposed. Id. at 258. A subsequent

prosecutor assigned to the case failed to keep this promise, Id. at 259, and the Court

held that “when 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.” Id. at 262.

      Here, it was the trial judge, not the prosecutor, who allegedly did not adhere

to the understood terms of the negotiated plea. However, we find that the rationale set

forth in Santobello should still apply in this case. When a trial judge accepts a

                                           3
negotiated plea and the defendant later relies on the terms of plea agreement to his

detriment by waiving certain constitutional rights that cannot be recovered, the failure

of the trial judge to adhere to the terms of the negotiated plea would likely offend the

integrity and reputation of the criminal justice system even more than any unkept

promise made by a prosecutor. This is so because judges are neutral, whereas

prosecutors are adversarial by nature.

      In this case, the record shows that the State had made a negotiated plea

recommendation and that the trial judge went along with this recommendation at the

time she accepted the plea. Although Lewis’ sentencing was deferred, the trial judge

had, at the very least, implicitly agreed to sentence him according to the State’s

recommendation, provided that he testified truthfully at the trial of his co-defendants.

Lewis relied on the trial court’s acceptance of his negotiated plea when he later

waived his Fifth Amendment rights and testified on behalf of the State at trial,

wherein he provided testimony that incriminated himself. Thus, the trial judge’s

alleged failure to adhere to the terms of the negotiated plea in this case would be more

detrimental than the prosecutor’s breach in Santobello.1

      1
        Although the trial court has indicated that it would allow Lewis to withdraw
his guilty plea, such relief would be wholly inadequate in this case. The trial court
indicated that, if he withdrew his guilty plea, it would allow his incriminating
testimony to be used against him in the prosecution of all of the charges against him
under the indictment.

                                           4
       Under the unique circumstances presented here, we find that the interests of

justice require that Lewis be sentenced according to the State’s recommendation

pursuant to the negotiated plea, provided that he testified truthfully on behalf of the

State at the trial of his co-defendants.

       2. At the sentencing hearing, both the State and Lewis informed the trial court

that Lewis had satisfied his obligation to testify truthfully on behalf of the State at the

trial, and both asked the trial court to sentence Lewis in accordance with the State’s

recommended sentence. The trial court did not disagree with the parties’s contentions

regarding the truthfulness of Lewis’ testimony, but it nevertheless imposed a harsher

sentence based on its reasoning that “[Lewis] is a public official, this was on his

watch, he stood by. And then he hindered and interfered with and tried to stop the

completion of a rightful, lawful investigation.”2 However, at a subsequent hearing on

Lewis’ motion for reconsideration of the sentence, the trial court stated that its

decision regarding Lewis’ sentence was based on “the credibility, the believability,

the probability or the improbability of the testimony[,]” thereby implying that Lewis

may have testified untruthfully at the trial of his co-defendants.


       2
       While we understand that in hindsight the plea deal might not seem fair given
Lewis’ culpability as revealed by the evidence and empathize with the trial court’s
concern, that would not be a valid reason to refuse to impose a previously agreed to
sentence.

                                            5
       On appeal, both the State and Lewis maintain that Lewis had testified truthfully

on behalf of the State. Apparently, the trial court believes otherwise. In light of the

parties’ non-adversarial posture with regard to this issue, and to ensure the fairness

and integrity of the plea bargain in this case, we find that the parties are entitled, upon

remand, to notice of the specific portions of Lewis’ testimony that were material to

the State’s case against the co-defendants that the trial court may have considered

questionable and an opportunity to present additional evidence and argument with

regard to such testimony.3 Obviously, our holding here would only be applicable upon




       3
        In so holding that Lewis is entitled to notice and an opportunity to be heard,
we are mindful that persons held in criminal contempt are afforded varying degrees
of due process. A holding of indirect contempt requires that the offending person
must be advised of the charges, have a reasonable opportunity to respond to them, and
the right to call witnesses. (Citations omitted). Ramirez v. State, 279 Ga. 13, 15 (2)
(608 SE2d 645) (2005) (citations and punctuation omitted); See also Dowdy v.
Palmour, 251 Ga. 135, 142 (2) (c) (304 SE2d 52) (1983) (holding that the party
sought to be held in contempt must be given “reasonable notice of the specific
charges and [an] opportunity to be heard”). Even a party subject to a finding of direct
contempt is entitled an opportunity to speak in his or her own behalf. Ramirez, supra
at 14 (2). For such opportunity to be meaningful, he or her must know the basis for
the charge. In any event, we have held that even in some arguably direct contempt
situations, absent a strong interest in summary adjudication, the offending party may
be entitled to more normal adversary procedures, including notice and a reasonable
opportunity to prepare a defense. Newton v. Golden Grove Pecan Farm, 309 Ga. App.
764, 770 (1) (711 SE2d 351) (2011).

                                            6
remand if the trial court continues to have issue with regard to the truthfulness of

Lewis’ trial testimony.4

      For the above reasons, Lewis’ sentence is vacated and the case is remanded to

the trial court for further proceedings not inconsistent with this opinion.5

      Judgment vacated and case remanded with direction. Andrews, P. J., and

McFadden, J., concur.




      4
        Should the trial court ultimately find that Lewis testified untruthfully as to the
material aspects of the State’s case, we note that such a finding may call into question
the validity of the co-defendants’ convictions. See Fugitt v. State, 251 Ga. 451, 452-
453 (1) (307 SE2d 471) (1983) (where defendant’s conviction was based on the
testimony of a prosecution witness and it was later established without a doubt that
the witness had testified untruthfully as to the material aspects of the State’s case, the
defendant was entitled to a new trial).
      5
       A reasonable question arises as to whether the trial court should recuse and
allow another judge to make the decision as to the truthfullness of Lewis’ testimony
and whether he remains entitled to the plea deal. See Newton, supra at 772-773 (3).
We, however, do not reach that issue in this appeal. The parties may renew upon
remand any recusal motion in that regard in light of our holding herein.

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