                                                              FILED 

                                                          NOVEMBER 10,2015 

                                                        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. 32898-8-III
                                               )
                     Respondent,               )
                                               )
              v.                               )         PUBLISHED OPINION
                                               )
MICHAEL DEE NEISLER                            )

                                               )

                     Appellant.                )


       LAWRENCE-BERREY, J.      - Michael Neisler appeals his exceptional sentence of72

months' incarceration after his guilty plea to two counts of vehicular assault, with the

second count involving an aggravating factor. We disagree with his central contention

that the State breached the plea agreement but accept the State's concession that the trial

court erred in c1assif)1ing the vehicular assaults as "serious violent offenses" and imposing

36 months of community custody. We therefore affirm Mr. Neisler's 72-month sentence

but remand for the sentencing court to correctly c1assi1)r the vehicular assaults as '"violent

offenses" and reduce the community custody term from 36 months to 18 months.
No. 32898-8-111
State v. Neisler


                                          FACTS

       On June 29, 2013, Michael Neisler was driving southbound on State Route 25 in

Stevens County when he crossed the centerline while attempting to negotiate a turn,

striking a car driven by Amy Enns. Amy Enns was badly injured, and her passenger

Caroline Enns was severely injured. Toxicology tests showed Mr. Neisler's blood-

alcohol content to be .19 percent, or nearly 2 Y2 times the legal limit of .08 percent. The

State brought two charges against Mr. Neisler. In count 1, the State charged Mr. Neisler

with vehicular assault against Amy Enns; and in count 2, the State charged Mr. Neisler

with vehicle assault against Caroline Enns, with an aggravating factor that her injuries

substantially exceeded the level of bodily harm necessary to satisfY the offense.

       The parties reached a plea agreement wherein Mr. Neisler would plead guilty to

both counts, including the aggravating factor in count 2. In exchange, the State agreed to

"defer to the Court with respect to sentencing." Clerk's Papers (CP) at 20.

       On October 21,2014, and prior to pleading guilty, the court reviewed the plea

agreement with Mr. Neisler. Notably, Mr. Neisler was informed that the standard

sentence range was 12+-14 months, with a maximum sentence of 10 years. After being

fully informed of his rights, he pleaded guilty to both counts.




                                              2

No. 32898-8-111
State v. Neisler


       The parties proceeded to sentencing. Both victims exercised their statutory right to

give a statement to the court. Although both victims discussed how their injuries resulted

in a profound impact on their lives, we focus on Caroline Enns' s statement, read to the

court by her sister:

               MS. BORROWS: So these are my sister's words I'm reading for
       her. Honorable Judge, I must first say that addressing you today is a
       difficult task for me for several reasons. First, you just can't put into words
       the devastation that this crash has caused. It's not an accident. Dropping a
       plate is an accident. Willfully operating a vehicle while impaired is an act
       of violence and it's abusive.
               Secondly, it's extremely uncomfortable for me to be in unfamiliar
       surroundings. I have no sight whatsoever. As you can see, every step ... in
       [my] walker, is a painful motion and [I'm] in constant fear of falling and
       seriously injuring [myself] more. Judge, I need you to hear me tell this
       Court in summary how the events of June 29, 2013, has [sic] changed my
       life forever.
               In my mind and in my sleep 1 continue to see that oncoming truck.
       The impact was so severe I was sure I was going to die. I thought there was
       no way to survive the force of that impact. In fact I did die. I felt my body
       lift and begin to float upwards until I felt hands on my shoulders forcing me
       back to earth and telling me you're not done yet. The medics were reviving
       me with [cardio pulmonary resuscitation] pressing down on my already
       broken rib cage. Five days later I awoke with pain that I cannot describe.
       My most serious injuries included having my right elbow sheared right off,
       my left ankle, both knees, both shoulders completely crunched. My bones
       were shattered like Com Flakes. In fact, the doctors told me they had to
       vacuum bone out of my body. Both my arms had multiple breaks. Both my
       legs were broken in so many places it has required plates, screws and bars
       just to keep them in line. Each of my eight surgeries have lasted anywhere
       from five to eight hours. Each recovery more difficult than the last.
               But the worst part of this vehicular abuse is that I'm completely
       blind. June 29, 2013 is the last time I saw anything and it was that

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No. 32898-8-111
State v. Neisler


      oncoming truck and the scattered windshield in front of my face. 1 miss my
      sight more than 1 can explain. 1 am in constant darkness. No light. No
      shadows. 1 long to see my family and 1 grieve that 1 will never see my
      granddaughter. 1 was an artist and now my way of life is altered forever.
      How am 1 to live an independent life when I'm blind and so severely
      physically disabled? This violent act has not only grossly altered my life
      but the life of my 26 year old daughter that is now serving as my way
      finder. I rely on her support so heavily that she has given up her own life
      for the past sixteen months. She has lot her job, her boyfriend and her own
      life plan. My own boyfriend of seven years has also ended our relationship.
      His future was not looking promising with a partner that has such complex
      needs. My family has given up time, money, work and has experienced
      massive stress along with me. The effect of Mr. Neisler's willful act to
      drink and drive cannot be measured. It's too deep, too wide to put a price
      on or a prison sentence time for him to. My hospital bills alone are nearly
      $650,000 U.S. I will be paying for these for the rest of my life.
              My hope in coming here today is that Mr. Neisler be charged to the
      full extent for his violent crimes against me and that the State of
      Washington really does begin to take a very serious look at their
      responsibility on the drinking and driving laws of this state. My future is
      forever changed. There is no amount of apologies that can give me my
      sight, mobility or quality of life back. Mr. Neisler needs to experience a
      modicum of life alterations so that he can never do this again to anyone
      else. Thank you.

Report of Proceedings (RP) at 9-10.

      After the court heard from various other persons, the State made the following

comments:

      Your Honor, so often, 1 think, when we deal with these kinds of cases in our
      roles as prosecutors, defenses and judges, we kind of get a little cold and
      callous and I can't even imagine what these two women have been going
      through for the past year. And I can recall one specific conversation that I
      had with [one ofthe victims] at one point over the summer. And after 1

                                           4

No. 32898-8-III
State v. Neisler


       asked the question~ I realized how silly it sounded and I asked~ how much
       time is enough? ... But I'm glad that this has happened. That we haven~t
       been put through a trial. I don~t think either one of [the victims] was
       looking forward or wanting to have to get up and testifY .... I hope during
       my career that I never have a case like this again. And this; again~ and I
       apologize if it sounds callous, but in a lot ofways this is more severe than a
       vehicular homicide in that these women have to continue to live with
       this.... And we ultimately defer to Your Honor. You've beendoing this a
       lot longer than all of us have and we would defer to Your Honor~s wisdom
       and past to look at the facts of this case and determine what an appropriate
       sentence would be.

RP at 12-13 (emphasis added). In response, defense counsel stated, "We would ask that

the Court impose an exceptional sentence. We realize that 12 months to 14 months isn't

fitting in this case. We would ask the Court to go higher than that, to go 16 months or 18

months." RP at 15. The victims each requested that the court impose the 120 month

maximum sentence.

       The court instead imposed a 72-month exceptional sentence. In sentencing Mr.

Neisler~   the court weighed his actions against past sentences imposed in the county and

other cases where exceptional sentences were imposed. In its memorandum on the

factors considered in imposing a sentence above the standard range, the court stated

"[t]he prosecuting attorney made no recommendation." CP at 45. In addition, the

sentencing court determined the offenses were "serious violent offenses," and imposed 36

months of community custody.


                                              5

No. 32898-8-111
State v. Neisler


       Mr. Neisler appeals. He argues (1) the State violated the tenns of the plea

agreement, and (2) the sentencing court erred in classifying the offenses as "serious

violent offenses" and imposing 36 months of community custody. The State concedes

that the offenses should have been classified as "violent offen~es," with a corresponding

community custody tenn of 18 months.

                                        ANALYSIS

       The issue is whether the State breached the plea agreement. Mr. Neisler contends

the State breached the plea agreement by commenting on the nature of the victims'

injuries and by inferring no length of incarceration was sufficient.

       Because a defendant who enters into a plea agreement gives up important

constitutional rights, a defendant can raise the issue ofthe State's breach for the first time

on appeal, as Mr. Neisler does here. State v. Xaviar, 117 Wn. App. 196, 199,69 P.3d 901

(2003). Whether a breach of a plea agreement occurred is an issue appellate courts

review de novo. State v. MacDonald, 183 Wn.2d 1,8,346 PJd 748 (2015).

       A plea agreement is a contract between the State and the defendant. State v.

Sledge, 133 Wn.2d 828,838,947 P.2d 1199 (1997) (quoting State v. Mollichi, 132 Wn.2d

80,90,936 P.2d 408 (1997)). As plea agreements concern fundamental rights of the

accused, due process requires the State to adhere to the agreement by recommending the


                                              6

No. 32898-8-II1
State v. Neisler


agreed-upon sentence. Id. at 839. Although the State need not enthusiastically make the

sentencing recommendation, it must act in good faith, participate in the sentencing

proceedings, answer the court's questions candidly, and hold back no relevant

information regarding the plea agreement. Id. at 840.

       Concomitantly, the State is also obligated not to "undercut the terms of the

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

plea agreement." Id. A breach occurs where the State offers unsolicited information via

"report, testimony, or argument that undercuts the State's obligations under the plea

agreement." State v. Carreno-Maldonado, 135 Wn. App. 77, 83, 143 P.3d 343 (2006);

see, e.g., id. at 84-85 (breach where the State described the crime as more egregious than

a typical crime of the same class, thus going beyond what was necessary to support the

mid-range sentencing recommendation); Xaviar, 117 Wn. App. at 200-02 (breach where

the State referred to aggravating sentencing factors, other charges not pursued, and called

the defendant "one of the most prolific child molesters" indicated lack of support for

standard range sentence); State v. Williams, 103 Wn. App. 231, 236-39, 11 P.3d 878

(2000) (breach where the State's sentencing memorandum and oral argument suggested

the court go beyond the high-end recommendation and made unsolicited references to

statutory aggravating factors, which trial judge adopted in order to impose an exceptional


                                             7

No. 32898-8-111
State v. Neisler


sentence); State v. Van Buren, 101 Wn. App. 206, 217, 2 P.3d 991 (2000) (breach where

the State downplayed mid-range sentencing recommendation, focused the court's

attention on two aggravating factors contained in the presentence report, proposed an

aggravating factor not addressed in the report, and argued the validity of one of the

aggravating factors); State v. Jerde, 93Wn. App. 774,782,970 P.2d 781 (1999) (breach

where the State emphasized aggravating factors when obligated to make a mid-range

sentence recommendation).

       When determining whether the State's comments breached the plea agreement,

appellate courts apply an objective standard, looking at the sentencing record as a whole.

Jerde, 93 Wn. App. at 780, 782. The test is whether the State's words or conduct,

without looking to the intent behind them, contradict the State's recommendation. [d. at

780. If the State breaches a plea agreement, harmless error review is not applicable.

MacDonald, 183 Wn.2d at 8. Rather, 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.

      Here, after the sentencing court heard from both victims, the State made the two

complained-of remarks: (1) "And I can recall one specific conversation that I had with

[one of the victims] at one point over the summer. And after I asked the question, I



                                             8

No. 32898-8-111
State v. Neisler


realized how silly it sounded and I asked, how much time is enough?" and (2) "And this,

again, and I apologize if it sounds callous, but in a lot ofways this is more severe than a

vehicular homicide in that these women have to continue to live with this." RP at 12-13

(emphasis added). Mr. Neisler argues these remarks (1) inferred no amount of

imprisonment would suffice and (2) overemphasized the nature of the injuries.

       In so arguing, Mr. Neisler analogizes his case to Sledge. In Sledge, the State

insisted on an evidentiary hearing notwithstanding a plea agreement to recommend a

standard range disposition: Sledge, 133 Wn.2d at 831. At the hearing, the State

announced its standard range disposition recommendation but then brought forth a

probation officer and a parole officer, both of whom testified in support of factors

supporting an exceptional disposition. Id. at 831-36. The State then summarized the

evidence supporting an exceptional disposition. Id. at 837-38 .. The court ultimately

entered a manifest injustice finding, supporting a disposition of 103 weeks.

       Sledge is distinguishable. There, the State agreed to recommend a standard range

disposition of 21 to 28 weeks but insisted on a disposition hearing in which it called

witnesses to testify concerning aggravating factors which then caused the court to impose

an exceptional disposition of 103 weeks. Id. at 830. In contrast here, both parties agreed


       I   In juvenile cases, the term "disposition" is used instead of "sentencing."

                                               9
No. 32898-8-III
State v. Neisler


an exceptional sentence was appropriate given the nature of Caroline Enns's injuries.

Therefore, the State was not prohibited from arguing and setting forth facts in support of

an exceptional sentence. Although the plea agreement required the State to defer to the

court with respect to sentencing, there was no agreement, expressed or implied, that the

State would minimize Caroline Enns's true injuries to lead the court toward a "low end"

aggravated sentence, such as that requested by defense counsel. We hold the State did not

breach the plea agreement.

       We affirm Mr. Neisler's 72-month sentence but remand for the trial court to

correct the nature ofthe offenses to "violent offenses" and designate a corresponding 18­

month community custody term.




                                                   Lawrence-Berrey, J.

WE CONCUR:




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