                                                                    FILED 

                                                                 JUNE 18, 2013 

                                                          In the Office of the Clerk of Court 

                                                        W A State Court of Appeals, Division III 



         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                          )        No. 30699-2-111
                                              )
                      Respondent,             )
                                              )
              v.                              )        UNPUBLISHED OPINION
                                              )
CLIFFORD ELTON CHEW,                          )

                                              )

                      Appellant.              )


      KULIK,     J.   Clifford Elton Chew pleaded guilty to possession of

methamphetamine with intent to manufacture within 1,000 feet of a school bus zone

pursuant to a plea agreement in which the State agreed to recommend a low-end standard

range sentence of 84 months. On appeal, he contends the State breached its plea

agreement by citing aggravating factors at sentencing that resulted in the imposition of a

high-end sentence based on those factors. We agree that the State breached the plea

agreement and remand to allow Mr. Chew to withdraw his plea or seek enforcement of

the agreement.

                                          FACTS

       Clifford Chew was charged by amended information with three violations of the
No.30699-2-III
State v. Chew


Uniform Controlled Substances Act, chapter 69.50 RCW. After consulting with the lead

detective in the case, the prosecutor agreed to dismiss two of the charges and recommend

a low-end standard range sentence of 84 months (60 months plus a 24-month school zone

enhancement).

      Mr. Chew accepted the offer and entered an Alfori plea to possession of

methamphetamine with intent to manufacture within 1,000 feet of a school bus. In the

written guilty plea statement, the State's sentencing recommendation provided: "The

prosecuting attorney will make the following recommendation to the judge: asking 84

months agreed all sides." Clerk's Papers (CP) at 133.

       Before accepting the plea, the trial court confirmed that Mr. Chew was entering the

plea to "take advantage of the plea bargain" and that he understood that the "prosecuting

attorney is going to recommend asking for the low side; as agreed to by all sides." Report

of Proceedings (RP) at 208,205. The court then asked Mr. Chew if "anybody made any

threats or promises to you to get you to sign [the guilty plea]." RP at 208. Mr. Chew

responded that he was "must ... hoping to get the 84-month range." RP at 208.

      At sentencing, Mr. Chew's defense counsel asked the court to consider allowing

Mr. Chew access to drug treatment in prison, including a drug offender sentencing


       1   North Carolina v. Alford, 400 U.S. 25,91 S. Ct. 160,27 L. Ed. 2d 162 (1970).

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No.30699-2-III
State v. Chew


alternative (DOSA), ifhe qualified under the statute. The prosecutor responded:

      [P]ursuant to [a] plea negotiation the State agreed to recommend 84 months
      and a day and agree to dismiss two of the three counts. We don't believe
      that he should be given a DOSA treatment program. His criminal history is
      probably about as long as I've ever seen in my years of doing this. I think I
      counted about 19 felonies starting back in the mid-seventies [including]
      Attempted Murder and Assault 1st, which then put him away for 10 years.
      And then after that, 2010, he was back atit.
             But be that as it may, knowing what we know about meth labs and
      the hazardous, the hazards that they give, the State believes the 84-month
      range recommendation is reasonable.

RP at 214-15.

      The prosecutor then asked the lead detective to speak, who stated:

      I don't have to educate the Court on the destruction of Methamphetamine or
      Methamphetamine laboratories. As we know, it is effecting [sic] our
      community, our society, and actually globally.
              What I want the Court to understand is we as law enforcement
      officers take an inherent risk to investigate these types of crimes in order to
      give a better quality of life to everybody here, and the citizens within the
      community.
              The people at that hotel that day ... probably would never know the
      inherent danger or risk associated with what was going on in room 106; the
      contamination, the exposure levels of the chemicals within the room.
              Again, we as law enforcement take that risk so that people have a
      safe place to live. I don't feel it's right that we give any sort ofleniency
      towards people who take advantage of our community in this way and bring
      their dirt here, if you will.
              Our position is that we would hope that Mr. Chew takes advantage
      of some sort of treatment program within the Institutions. We would not
      agree or be in favor of granting [a] DOSA in any way .... This is not his
      first encounter with Methamphetamine[;] I just ask that you recognize the
      dangers and inherent danger that this posed not only to him, to us and the

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No.30699-2-III
State v. Chew


       community, which is just about everybody as a whole.

RP at 215-16.

       After these remarks, defense counsel reminded the court that all parties agreed on

an 84-month sentence. However, the court announced it was "not sentencing toward the

low end. It will be quite the opposite." RP at 218. It then imposed a sentence of 108

months, citing three reasons: (1) the "horrendous" nature of methamphetamine and its

"tremendous" impact on our community, (2) the risk of exposing "innocent people" at the

motel room to hazardous materials, and (3) Mr. Chew's high offender score. RP at 217­

18.

       Mr. Chew appeals, contending the State's presentation at sentencing constituted a

breach of the plea agreement.

                                       ANALYSIS

      Mr. Chew argues his due process rights were violated when the prosecutor and the

investigating detective recited aggravating facts at the sentencing hearing that undermined

the State's promised recommendation for a low-end standard range sentence, effectively

breaching the plea agreement. The State counters that the detective was not a party to the

plea agreement and, therefore, his remarks did not breach the plea agreement. It also

contends that the State's response was proper rebuttal to Mr. Chew's request for a DOSA,


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No.30699-2-III
State v. Chew


which constituted a defense breach of the plea agreement.

       Whether a breach of a plea agreement has occurred is a question of law we review

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. Xaviar, 117 Wn. App. 196, 199,69 P.3d 901 (2003).

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

State v. Sledge, 133 Wn.2d 828, 838, 947 P.2d 1199 (1997). Because a defendant gives

up important constitutional rights by agreeing to a plea bargain, the defendant's contract

rights implicate due process considerations. ld. at 839. "Due process requires a

prosecutor to adhere to the terms of the agreement." ld. Under this requirement, a

prosecutor need not make an agreed sentencing recommendation enthusiastically. ld. at

840. A prosecutor is entitled to present relevant facts that might not fully support the

recommended sentence. State v. Gutierrez, 58 Wn. App. 70, 76, 791 P.2d 275 (1990). A

prosecutor may not, however, "undercut the plea bargain 'explicitly or by conduct

evidencing an intent to circumvent the terms of the plea agreement.'" State v. Jerde, 93

Wn. App. 774,780,970 P.2d 781 (1999) (quoting Sledge, 133 Wn.2d at 840). In other

words, "end runs" around a plea agreement are prohibited.

       '" [W]hen the prosecution breaches its promise with respect to an executed plea

agreement, the defendant pleads guilty on a false premise, and hence his conviction



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No.30699-2-III
State v. Chew


cannot stand.'" Sledge, 133 Wn.2d at 839-40 (quoting Mabry v. Johnson, 467 U.S. 504,

509, 104 S. Ct. 2543,81 L. Ed. 2d 437 (1984)).

       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. State

v. Williams, 103 Wn. App. 231,236, 11 PJd 878 (2000) (quoting Jerde, 93 Wn. App. at

780). Neither good motivations nor a reasonable justification excuses a breach. Xaviar,

117 Wn. App. at 200. "The focus of this decision is on the effect of the State's actions,

not the intent behind them." Sledge, l33 Wn.2d at 843 n.7. An objective standard should

be applied to determine whether the State has breached the agreement. Jerde, 93 Wn.

App. at 780.

       We first address the State's contention that the detective was not bound by the

State's promise to recommend a low-end standard range sentence. Citing State v.

Sanchez, 146 Wn.2d 339, 46 PJd 774 (2002), the State contends that as a nonparty to the

plea agreement, an investigating officer is not bound by the prosecutor's promises. The

State argues that under RCW 9.94A.500, which allows the court to consider statements

from investigative law enforcement officers at sentencing, investigators like the detective

here have a separate statutory role in the sentencing hearing. It asserts, "[i]t is the statute,


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No.30699-2-II1
State v. Chew


which invites law enforcement to the hearing, not the prosecutor." Br. of Resp't at 11.

       The State misreads Sanchez and minimizes the significant role played by the

detective in plea negotiations here. Five of the justices in Sanchez agreed that an

investigating officer is part of the prosecution team and is, therefore, bound by the

prosecutor's agreement under "principles offaimess and agency." Sanchez, 146 Wn.2d at

356. "A majority opinion is settled law." State v. Brooks, 157 Wn. App. 258, 265,236

P.3d 250 (2010). As a plurality opinion, Sanchez indicates that the detective was bound

by the plea agreement and its requirements.

       Here, the detective was not only the investigating officer, he also participated in

plea negotiations with the defense. When Mr. Chew ultimately agreed to plead guilty, the

prosecutor responded by consulting with the detective about the specifics of the plea offer

and then stated on the record that "after meeting with our detective," he would amend the

information to reflect the negotiated agreement. RP at 201. This close alignment of the

investigating detective with the prosecutorial effort highlights the court's reasoning in

Sanchez. Sanchez, 146 Wn.2d at 358.

       Given that the detective is bound by the plea agreement, we next address whether

the detective's remarks constituted a breach of that agreement. Citing State v. Carreno-

Maldonado, 135 Wn. App. 77, 143 P.3d 343 (2006), Mr. Chew argues that the detective's


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No.30699-2-III
State v. Chew


remarks effectively undermined the State's promised recommendation by offering

unsolicited information that undercut the plea bargain. He argues that the State breached

the plea agreement "by reciting aggravating facts at the sentencing hearing, including

through the investigating police officer, resulting in the trial court departing significantly

upward from the recommendation on the basis of those very same aggravating facts."

Reply Br. of Appellant at 9. The State responds that the prosecutor's and detective's

statements were warranted by Mr. Chew's request for a DOSA, which it claims was a

defense breach of the plea agreement.

       The State overlooks the fact that it is the State that is held to an exacting standard

of adherence to a plea agreement. As noted above, because plea agreements implicate

fundamental rights of the accused, the State is held to "'meticulous standards of both

promise and performance.'" Palermo v. Warden, 545 F.2d 286,296 (2d Cir. 1976)

(quoting Correale v. United States, 479 F.2d 944,947 (lst Cir. 1973». Here, the State's

promise to recommend the 84-month sentence was the very inducement to obtain a guilty

plea from Mr. Chew and the attendant relinquishment of his constitutional rights to a jury

trial, to confront his accusers and present witnesses on his   b~half,   and the right to have

the charges proved against him beyond a reasonable doubt. Mr. Chew's request for drug

treatment in prison or a DOSA as part of a standard range 84-month sentence did not


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No.30699-2-III
State v. Chew


breach the plea agreement.

       However, even if we deem Mr. Chew's request for a DOSA a breach of the plea

agreement, the State's remarks exceeded what was necessary to respond to that request.

The detective's statements regarding the extreme dangers of methamphetamine locally

and "globally," his explicit rejection of "leniency," his recitation of the dangers to the

community and the "inherent risk" to investigating law enforcement officers, and his

characterization of Mr. Chew and methamphetamine manufacturers as people who "take

advantage of our community ... and bring their dirt here" were irrelevant to a DOSA

request and crossed the line into advocacy for a higher sentence. RP at 215-16.

       Carreno-Maldonado is instructive. In that case, the prosecutor agreed to

recommend a low-end standard range sentence on one of the counts, a midpoint standard

range sentence for five counts, and a high-end standard range sentence on another count.

Carreno-Maldonado, 135 Wn. App. at 79-80. However, at sentencing, the prosecutor

characterized the crimes as '" heinous'" and described the defendant as a violent person

who'" preyed on what would normally be considered a vulnerable segment of our

community.'" Id. at 80-81. When defense counsel objected to the remarks, the

prosecutor stated that he was sticking to the agreed recommendation and simply speaking

on behalf of the victims. The sentencing court imposed concurrent high-end sentences on


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No.30699-2-II1
State v. Chew


all counts.

       Division Two of this court held that the State breached the plea agreement,

reasoning that the prosecutor's remarks described the crime as "more egregious than a

typical crime of the same class" and, therefore, "went beyond what was necessary to

support the mid-point sentencing recommendations." Id. at 85. It concluded that the

remarks were "unsolicited advocacy and contrary to the State's sentencing

recommendation." Id. at 86-87.

       Similarly here, the State's sentencing presentation contradicted its promised

recommendation and unnecessarily underscored Mr. Chew's high offender score

and his continued involvement in illegal drug behavior. Although the prosecutor

stated that he was recommending a low-end standard range sentence, he then

recited Mr. Chew's extensive criminal history, including an attempted murder, and

characterized this history as one of the longest he had ever seen. This recitation

was not relevant to a DOSA request or to support the promised recommendation.

Moreover, this emphasis on Mr. Chew's criminal history was unnecessary because

the court was already aware of this history.

       The prosecutor then brought forth the detective, who, as detailed above,

argued that leniency was unwarranted given the seriousness of the crime. His


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No.30699-2-III
State v. Chew


unsolicited testimony defeated the benefit for which Mr. Chew bargained and was

likely significantly persuasive due to his integral involvement in the prosecutor's

case. Although investigating officers have a statutory role to play at sentencing,

the sentencing court did not request information from the detective and there was

no purpose in having him testifY except to undermine the agreement.

       Whether intentional or not, the apparent effect of the State's sentencing

presentation was the court's imposition of a sentence well above the low-end of

the standard range. The court's very reasons for an upward departure from the

recommendation mirrored the points made by the State at sentencing. In fact, the

court stated that one of its concerns (putting innocent people as risk) was "exactly

the point made by [the detective], and that is this motel room. . .. Think of the

people ... who would have ... been exposed to this hazardous material." RP at

218. The cumulative effect of the prosecutor's and the detective's remarks at

sentencing resulted in a breach of the p lea agreement.

       When the State breaches a plea agreement, the appropriate remedy is to remand for

the defendant to choose whether to withdraw the guilty plea or seek enforcement of the

State's agreement. Jerde, 93 Wn. App. at 782-83.




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No.30699-2-II1
State v. Chew


      The State breached the plea agreement.

      We reverse and remand.

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

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.


                                         Kulik,l.

WE CONCUR:




Brown, 1.       l(                        Sid~ accf=




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