                                                                              -si        r^v..
                                                                               ~3"
                                                                                             11 yr.
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGT^J •>
                                                                                          cj1 ^   C1
STATE OF WASHINGTON,
                                               No. 68474-4-1                     ^ ^
                    Respondent,
                                               DIVISION ONE                          ^
             v.
                                               UNPUBLISHED OPINION
AMANDA TUCKER AKA
AMANDA ALLEN,

                    Appellant.                 FILED: March 25, 2013


      Grosse, J. — A prosecutor does not undercut a plea agreement merely by

vigorously advocating the State's position for a sentence recommendation that the

parties did not fully agree with. Here, the State was requesting a maximum sentence

for several felonies and opposed the defendant's request for alternative sentencing.

Submitting statements from law enforcement officials who argued against alternative

sentencing does not undercut the plea agreement. A sentencing court is not required to

accept the recommendations contained in a plea agreement. The trial court set forth

sufficient facts to support its imposition of an exceptional sentence. The judgment and

sentence is affirmed.

                                        FACTS


      Amanda Tucker pleaded guilty to 23 felony counts as well as two aggravators in

two separate cause numbers. She admitted that she had burglarized vulnerable elderly

victims and that she had done so while several victims were present in their homes.

The State required Tucker to plead guilty to the aggravators in return for the State not

asking for an exceptional sentence.     Although Tucker was free to ask for a Drug
Offender Sentencing Alternative (DOSA), the State did not agree with that alternative.
No. 68474-4-1 / 2


The State agreed to recommend a sentence at the high end of the range, 84 months

followed by 12 months of community custody.

      At sentencing, the prosecutor set forth the multiple charges Tucker faced, the

offender scores for each charge, and the respective sentencing ranges. Pursuant to the

plea agreement, the prosecutor asked the court to impose a sentence at the high end of

the range, 84 months followed by 12 months of community custody.              The court

interrupted the prosecutor's presentation to inquire into the agreement on the

aggravating factors. The court wanted to ensure there was a basis for the aggravating

factors in the event the court was inclined to impose an exceptional sentence on that

basis and that the defendant had agreed to the factors. Assured that this was the case,

the prosecutor then continued with her presentation for the imposition of a sentence at

the high end of the range and set forth reasons for objecting to Tucker's request for a

DOSA sentence.

       Several victims addressed the court. One of the investigating police officers also

addressed the court, expressing his opposition to Tucker's DOSA request because of

the methodical, calculated way in which Tucker conducted her criminal activity.

Detective Steve Owens, another investigating police officer, submitted a letter which the

prosecution read to the court. In that letter, the detective noted that Tucker committed
several of her burglaries while out on bail and victimized people with dementia and

other disabilities who were unable to protect themselves.        Detective Owens' letter

concluded with a request that Tucker be given substantial jail time.

       After hearing argument from defense counsel urging imposition of the DOSA, the
court imposed an exceptional sentence of 120 months followed by 12 months of
No. 68474^-1 / 3


community custody. Tucker appeals, contending the prosecutor undercut the plea

agreement by presenting the investigating officers' opinions regarding her sentence.

                                      ANALYSIS

      "A plea agreement is a contract between the defendant and the prosecutor."1
Because a defendant relinquishes important constitutional rights by entering into a plea

bargain, "[d]ue process requires a prosecutor to adhere to the terms of the agreement."

      Under this requirement, a prosecutor need not enthusiastically support an agreed

sentencing recommendation.3 A prosecutor is entitled to present relevant facts that
might not fully support the recommended sentence.4 A prosecutor may not, however,
"undercut the plea bargain 'explicitly or by conduct evidencing an intent to circumvent

the terms of the plea agreement.'"5 The test is whether the prosecutor objectively
contradicted the agreed-upon sentence recommendation by use of words or conduct.

      A breach has been found when the prosecutor offers unsolicited information or

argument that undercuts the State's obligations. See State v. Xaviar7 (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"); State v. Van

Buren8 (breach where prosecutor made only fleeting reference to sentencing
recommendation and highlighted three aggravating factors for an exceptional sentence);



1 In re Lord. 152 Wn.2d 182, 188, 94 P.3d 952 (2004).
2 State v. Sledge. 133 Wn.2d 828, 839, 947 P.2d 1199 (1997).
3 State v. Tallev. 134 Wn.2d 176, 183, 949 P.2d 358 (1998).
4 See State v. Gutierrez. 58 Wn. App. 70, 76, 791 P.2d 275 (1990).
5 State v. Jerde. 93 Wn. App. 774, 780, 970 P.2d 781 (1999) (quoting Sledge. 133
Wn.2dat840).
6 Jerde. 93 Wn. App. at 780.
7 117 Wn. App. 196, 200-01, 69 P.3d 901 (2003).
8 101 Wn. App. 206, 217, 2 P.3d 991 (2000).
No. 68474-4-1/4


State v Jerde9 (breach where prosecutor emphasized aggravating factors despite
obligation to make mid-range sentencing recommendation). Similarly, a prosecutor's

expression of "second thoughts" in submitting a bargained-for recommendation

sufficiently tainted the recommendation to constitute a breach of the plea agreement.10
      A prosecutor, however, does not breach a plea agreement by merely reiterating

facts necessary to support a high-end standard range recommendation.11                    In
determining whether a prosecutor violated the duty to adhere to a plea agreement, the

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

contradicted the State's recommendation by either words orconduct.12
      We have carefully reviewed the record and conclude that there was no breach of

the plea agreement. It is significant that the sentence recommendation was not agreed

to in every respect. Here, the information provided by the investigating police officers

did not undercut the plea agreement.       As noted in State v. Tallev. "'[p]resenting

evidence that will help the court make a decision does not amount to advocating against

[the prosecutor's] earlier recommendation.'"13 "A sentencing judge ... is not bound by
any recommendation contained in the plea agreement."14 Here, the judge lawfully




993 Wn. App. 774, 777-78, 970 P.2d 781 (1999).
10 Matter of Palodichuk. 22 Wn. App. 107, 108, 110, 589 P.2d 269 (1978).
11 See, e^, State v. Monroe. 126 Wn. App. 435, 440, 109 P.3d 449 (2005) remanded
for reconsideration on other grounds. 157 Wn.2d 1016, 142 P.3d 172 (2006) (no breach
when the prosecutor recounted salient facts, including that defendant's acts were "one
of the most 'significant crime sprees' the prosecutor could remember" when the
prosecutor unequivocally urged the court to accept the State's recommendation).
12 State v.Williams. 103 Wn. App. 231, 236, 11 P.3d 878 (2000).
13 134 Wn.2d 176, 186, 949 P.2d 358 (1998) (quoting State v. Tallev. 83 Wn. App. 750,
759, 923 P.2d 721 (1996)).
14 State v.Henderson. 99 Wn. App. 369, 374, 993 P.2d 928 (2000).
No. 68474-4-1 / 5



exercised   his     discretion   and   chose   not   to   follow   the   parties'   sentencing

recommendations.


      Affirmed.




                                                               ATW        i
WE CONCUR:




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