                 IN THE SUPREME COURT OF THE STATE OF IDAHO
                                Docket No. 39877

STATE OF IDAHO,                          )
                                         )               Boise, September 2013 Term
    Plaintiff-Appellant,                 )
                                         )               2014 Opinion No. 40
 v.                                      )
                                         )               Filed: March 28, 2014
 CAREY MITCHELL BAKER,                   )
                                         )               Stephen W. Kenyon, Clerk
    Defendant-Respondent.                )
                                         )
________________________________________)

       Appeal from the District Court of the First Judicial District of the State of Idaho,
       Kootenai County. Hon. Carl B. Kerrick, District Judge.

       The decision of the district court is affirmed.

       Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, attorney for
       Appellant. Lori Anne Fleming argued.

       Kootenai County Public Defender’s Office, Coeur d’Alene, attorneys for
       Respondent. Jay Logsdon argued.
                       _____________________________________

SCHROEDER, J. pro tem
                                                 I.
                                        NATURE OF THE CASE
       The State of Idaho appeals an order of the district court sitting in its intermediate
appellate capacity. The magistrate court denied the defendant, Carey Mitchell Baker’s (“Baker”),
motion to dismiss eleven counts of violating a civil protection order. The district court ordered
Baker’s judgments on those counts vacated.
                                                 II.
                          FACTUAL AND PROCEDURAL BACKGROUND
       Baker married Robyn Shea (“Shea”) in 2005. They divorced in 2009. On March 4, 2009,
Shea sought and obtained a civil protection order against Baker. Between May 26, 2009, and
September 17, 2009, Shea received a series of phone messages from Baker in violation of the
protection order. Eleven of those phone messages were received by Shea while she was located



                                                 1
in Kootenai County, and one of the messages was received by Shea while she was located in Ada
County.
       On September 10, 2009, the Boise City Attorney, acting on behalf of the City of Meridian
filed a misdemeanor complaint against Baker for one count of violating the protection order for
the phone message Shea received while in Ada County on August 24, 2009. On December 7,
2009, the Coeur d’Alene City Attorney in Kootenai County filed charges against Baker for
twelve counts of violating the protection order for all of the phone messages that Shea received
from Baker. Kootenai County also issued an arrest warrant on the same day. Neither the Boise
City Attorney nor Baker was aware of the Kootenai County charges until April 2, 2010.
       On February 27, 2010, Baker entered into a plea agreement with the Boise City
prosecutor. Baker agreed to plead guilty to the single count filed in Ada County in exchange for
the promise that “the State” would pursue no other charges against him for violation of the
protection order for calls Baker placed to Shea prior to February 17, 2010. At sentencing, the
magistrate judge considered all twelve phone messages that Shea received from Baker. This
included the messages that were the basis of the charges in Kootenai County. The Boise City
Attorney was aware of the phone calls to Kootenai County but unaware charges had been filed.
Likewise, the Coeur d’Alene City Attorney was not aware of the proceeding in Ada County.
       On April 2, 2010, Baker was arrested on the warrant issued in Kootenai County. On
October 8, 2010, Baker filed a motion to dismiss the charges in Kootenai County claiming
double jeopardy and violation of the plea agreement. On November 5, 2010, the magistrate judge
dismissed one count of the charges in Kootenai County because that charge was for the August
24, 2009, phone message to which Baker pled guilty in Ada County. The magistrate judge denied
Baker’s motion to dismiss the remaining eleven counts. A jury ultimately found Baker guilty on
all eleven counts of violating the protection order.
       Baker appealed to the district court in its capacity as an intermediate appellate court,
asserting that the Coeur d’Alene City Attorney was bound by the plea agreement between him
and the Boise City prosecutor. The district court vacated the convictions in Kootenai County on
the basis that the Coeur d’Alene City Attorney was bound by the terms of Baker’s plea
agreement. The district court ruled that the plea agreement must be construed in favor of Baker
and that specific performance of the plea agreement was the appropriate remedy. The State
appealed.



                                                  2
                                                III.
                                        ISSUE ON APPEAL
       Whether the charges against Baker in Kootenai County were barred by the plea
agreement Baker entered into with the Boise City Attorney and whether specific performance of
the plea agreement was the appropriate remedy.
                                                IV.
                                      STANDARD OF REVIEW
       On review of a decision of the district court sitting in its appellate capacity, the Supreme
Court will directly review the district court’s decision to determine whether it correctly decided
the issues presented to it on appeal. Idaho Dep’t of Health & Welfare v. Doe, 148 Idaho 124,
126, 219 P.3d 448, 450 (2009). This Court discussed the standard to be applied when reviewing a
plea agreement in State v. Peterson, 148 Idaho 593, 226 P.3d 535 (2010):
              [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. Whether a plea agreement has been breached is a
       question of law to be reviewed by this Court de novo, in accordance with contract
       law standards . . . .
              In determining whether the State has breached a plea agreement a court
       must examine the language of the plea agreement, and where the language of that
       plea agreement is ambiguous, those ambiguities shall be resolved in favor of the
       defendant. The burden of proving the existence of a contract and the fact of its
       breach is upon the plaintiff . . . .
               The determination that a plea agreement is ambiguous is a question of law;
       however, interpretation of an ambiguous term is a question of fact. Factual
       determinations made by a trial court shall not be set aside on review unless they
       are clearly erroneous.
Id. at 595, 226 P.3d at 537 (internal citations and quotations omitted).
                                                 V.
 THE DISTRICT COURT DID NOT ERR IN VACATING BAKER’S CONVICTION ON THE ELEVEN
CHARGES OF VIOLATING A NO CONTACT ORDER FILED AGAINST HIM IN KOOTENAI COUNTY.
       The district court held that the actions of the Boise City Attorney could limit the actions
of the Coeur d’Alene City Attorney when venue for prosecution was proper in either Ada or
Kootenai County. The district court ruled that it was possible for a prosecutor in one county to
bind a prosecutor in another county because of the importance of the plea bargaining process to
our system of justice, noting that Idaho courts have held that a plea agreement can bind multiple
prosecutors in the same office, and that law enforcement officers are likewise bound by a plea


                                                 3
agreement when they are acting as agents of the state. The district court held these principles of
law were consistent with authority from other jurisdictions holding that the actions of
prosecutors in one jurisdiction can be binding on prosecutors in another jurisdiction.
       Idaho Code § 50-208A(2) provides:
       The city attorney, his deputies, or contract counsel shall prosecute those violations
       of county or city ordinances, state traffic infractions, and state misdemeanors
       committed within the municipal limits. In so doing, the city attorney, his deputies,
       or contract counsel shall exercise the same powers as the county prosecutor
       including, but not limited to, granting immunity to witnesses.
       “A criminal action is prosecuted in the name of the State of Idaho, as a party, against the
person charged with the offense.” I.C. § 19-104. A prosecutor is obligated to represent the people
of the State of Idaho in criminal proceedings. State v. Lampien, 148 Idaho 367, 378, 223 P.3d
750, 761 (2009) (citing I.C. § 31-2604). One of a prosecutor’s duties is
       [t]o prosecute or defend all actions . . . in the district court of his county in which
       the people, or the state, or the county, are interested or are a party; and when the
       place of trial is changed in any such action or proceeding to another county, he
       must prosecute or defend the same in such other county.
I.C. § 31-2604. “So long as the prosecution proves that the crime occurred within the state of
Idaho, the precise location of the crime within any particular county in Idaho is not required as
an element to establish that a crime has been committed . . . .” State v. Amerson, 129 Idaho 395,
401, 925 P.2d 399, 405 (Ct. App. 1996). The prosecution of an offense shall be in the county
where the alleged offense was committed. I.C.R. 19. Where an offense is committed in two or
more counties, the venue is in either county. I.C. § 19-304(1). If venue cannot be determined the
proper venue is Ada County. I.C. § 19-304(3). As noted by the district court, venue for the
charges involved in this case was proper in either Ada or Kootenai County.
       Whether the actions of a prosecutor in one county can preclude a prosecutor of another
county from pursuing charges is an issue of first impression in Idaho, but other jurisdictions have
addressed similar issues. The Missouri Court of Appeals has held that where the State enters a
plea agreement with a defendant that rests on a promise of the prosecutor, that promise binds
every other prosecutor in the State. State v. Burson, 698 S.W.2d 557, 559 (Mo. Ct. App. 1985)
(“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”). The
Florida Supreme Court held that a plea agreement is breached “if any representative of the
government fails to honor a plea bargain agreement entered into between the state and the


                                                 4
defense, particularly if it influences a consequence not contemplated by the agreement.” Lee v.
State, 501 So.2d 591, 593 (Fla. 1987) (basing decision on principle that a Florida prosecutor
represents the state under Florida Rule of Criminal Procedure 3.171). The Washington Court of
Appeals opined that a plea agreement binds the State of Washington government as a whole
where the party entering the plea agreement acted as an agent of the State of Washington. State
v. Harris, 6 P.3d 1218, 1225 (Wash. Ct. App. 2000). In Harris, the Washington Court of Appeals
held that a community corrections officer did not violate a plea agreement because the
community corrections officer does not
       act[ ] as an agent of the State of Washington but on behalf of the independent
       judiciary. Because the [community corrections officer] is not functioning as the
       State’s agent . . . the DOC is not a party to the plea agreement entered into by the
       prosecutor’s officer and is not bound by it.
Id.
       Federal Courts hold that absent an express limitation on agencies the government’s
obligations shall apply. A plea agreement entered into on behalf of the government binds the
government as a whole. Allen v. Hadden, 57 F.3d 1529, 1535–36 (10th Cir. 1995); United States
v. Harvey, 791 F.2d 292, 303 (4th Cir. 1986). The Fourth Circuit also noted that the government
is bound in one district by the terms of a plea agreement entered in another district. United States
v. Carter, 454 F.2d 426 (4th Cir. 1972).
       Jurisdictions that have taken a narrower view of the scope to which a plea agreement will
bind the whole state government have held that a plea agreement will nonetheless bind the
prosecutorial branch of the state government. See Montan v. Milinovich, 812 P.2d 338, 340
(Mont. 1991) (overruled on other grounds by State v. Deserly, 188 P.3d 1057 (Mont. 2008)
(overruled by State v. Brinson, 210 P.3d 164 (Mont. 2009)) (holding by a narrow majority that a
plea agreement is not breached when a probation officer recommends a sentence different from
that contained in a plea agreement because a probation officer is not the equivalent of a
prosecutor); Arizona v. Rogel, 568 P.2d 421, 423 (1977) (holding that the use of the phrase “the
State” in a plea agreement manifests “the parties’ mutual intent to use that term in referring only
to the prosecutorial branch of the State”); Utah v. Thurston, 781 P.2d 1296, 1300 (Utah Ct. App.
1989) (holding that only prosecutors are bound by the prosecutor’s plea bargain).
       The plea agreement entered into by the City Attorney in Ada County is binding on the
Coeur d’Alene City Attorney. Both the City Attorney in Ada County and the Coeur d’Alene City



                                                 5
Attorney are in this instance members of the prosecutorial branch of the State of Idaho and are
agents of the State of Idaho. Their authority is derived from state statutes and their cases are
prosecuted in the name of the State of Idaho.
        The State maintains that the plea agreement between Baker and the Boise City Attorney
cannot extend to the Coeur d’Alene City Attorney because the City Attorney in Ada County had
no actual authority to exercise its prosecutorial authority beyond Ada County. The State also
argues that the City Attorney in Ada County had no apparent authority to enter the plea
agreement on behalf of the City Attorney in Kootenai County because the Boise City Attorney
did not represent that it was acting as the agent of Kootenai County.
        Neither Ada County nor Kootenai County was a party to the charges against Baker. It
was the State of Idaho that was the party, with the prosecutors acting as the agents of the State of
Idaho. The Boise City Attorney had the authority to enter into a plea agreement with Baker.
Exercising authority granted by state statute, the Boise City Attorney was acting on behalf of the
State. Having the authority to act on the particular charges at issue in this case, that action binds
other prosecutors who could also act on behalf of the state on the same charges. The authority to
bind another prosecutor requires that the bargaining prosecutor have the authority to prosecute
the charge being bargained away or otherwise affected, precluding, for example, a city attorney
from bargaining away a felony or a misdemeanor charge beyond the venue in which the charge
could be filed. Clarity in the plea agreement itself is paramount to avoid conflicts such as exists
in this case.
        1.      The plea agreement binds Kootenai County.
        The district court found that the plea agreement was ambiguous because it failed to
delineate what the prosecutor in Ada County meant by “the State.” The district court determined
that the ambiguity must be construed in favor of Baker, and the only appropriate remedy is
specific performance.
        The interpretation of a plea agreement is measured by contract law standards. State v.
Cope, 142 Idaho 492, 495, 129 P.3d 1241, 1244 (2006). “The determination that a plea
agreement is ambiguous is a question of law; however, interpretation of an ambiguous term is a
question of fact.” State v. Peterson, 148 Idaho 593, 595, 226 P.3d 535, 537 (2010). In
determining whether a plea agreement is ambiguous the question for this Court is “whether the
contract is reasonably subject to conflicting interpretation.” State v. Gomez, 153 Idaho 253, 257,



                                                 6
281 P.3d 90, 94 (2012). “As with other contracts, provisions of plea agreements are occasionally
ambiguous, the government ordinarily must bear responsibility for any lack of clarity.” Peterson,
148 Idaho at 596, 226 P.3d at 538 (quoting United States v. De la Fuente, 8 F.3d 1333, 1338 (9th
Cir. 1993)). “Focusing on the defendant’s reasonable understanding also reflects the proper
constitutional focus on what induced the defendant to plead guilty.” Id. (emphasis in original).
       Baker was unaware that Kootenai County was pursuing charges against him, but he was
aware of other potential charges. He did not object to the judge considering the transcripts of all
twelve violations in exchange for the promise that the State would not charge other violations of
the no contact order. Clearly, the promise of not being charged for other violations is what
induced his guilty plea. Baker thought he would not be prosecuted for any additional charges by
any prosecutor in Idaho. Under the facts of this case that interpretation is the most reasonable.
       2.      Specific performance is a proper remedy.
       The State argues that even if the plea agreement was ambiguous, the proper remedy
available to Baker was the withdrawal of his plea agreement in Ada County, not the dismissal of
the charges in Kootenai County. The district court, however, held that the appropriate remedy
available to Baker was specific performance of the plea agreement encompassing the charges in
Kootenai County.
       It is well established 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. This principle is derived from
       the Due Process Clause and the fundamental rule that, to be valid, a guilty plea
       must be both voluntary and intelligent. If the prosecution has breached its promise
       given in a plea agreement, whether that breach was intentional or inadvertent, it
       cannot be said that the defendant’s plea was knowing and voluntary, for the
       defendant has been led to plead guilty on a false promise. In such event, the
       defendant will be entitled to relief. As a remedy, the court may order specific
       performance of the agreement or may permit the defendant to withdraw the guilty
       plea.
State v. Wills, 140 Idaho 773, 775, 102 P.3d 380, 382 (Ct. App. 2004) (internal citations
omitted).
       The promise of no future prosecutions induced Baker’s entering into the plea agreement.
Either the specific performance or the withdrawal of the plea agreement was a proper remedy.
The district court had discretion in choosing which remedy to apply. There has been no showing
of an abuse of that discretion. Where a plea agreement rests on a promise of the prosecutor such



                                                 7
a promise must be fulfilled. Santobello v. New York, 404 U.S. 257, 262 (1971). Thus, it is proper
to enforce the promise of the plea agreement encompassing the charges in Kootenai County.
                                              VI.
                                         CONCLUSION
       The decision of the district court vacating the eleven Kootenai County charges against
Baker is affirmed.
       Chief Justice BURDICK, Justices EISMANN, J. JONES and HORTON, CONCUR.




                                               8
