State Of Washington v. Jerry D. Wiatt, Jr. ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 79646-1-I
Respondent, ) DIVISION ONE
)
v. )
JERRY D. WIATT JR., ) UNPUBLISHED OPINION
)
Appellant. ) FILED: October 21, 2019
MANN, A.C.J. —Jerry Wiatt appeals the trial court’s order enforcing a 2011 plea
agreement and prohibiting Wiatt from challenging nine civil anti-harassment orders
entered pursuant to the plea agreement. We affirm.
On January 31, 2011, Wiatt appeared for a change of plea and sentencing in
Thurston County Superior Court. Wiatt had been serving a prison sentence on
convictions for two counts of rape in the second degree, two counts rape in the third
degree, one count attempted rape in the third degree, six counts furnishing liquor to a
minor, one count voyeurism, and one count communication with a minor for immoral
No. 79646-1-112
purposes. All of the convictions had been vacated by Division Two of this court and
remanded for trial.1 The State filed a petition for review with the Supreme Court.
After lengthy negotiations between the State, Wiatt, and his attorney, the State
agreed to reduce the charges to seven counts of assault in the fourth degree and two
counts of furnishing liquor to a minor in exchange for the entry of nine permanent civil
anti-harassment orders for each of Wiatt’s victims. Wiatt also agreed that he would not
maintain a principal residence or have a principal place of employment or schooling in
Thurston County. The statement on the plea of guilty indicated that “pursuant to the
plea agreement of the parties, the defendant would agree to the entry by this court at
the time of sentencing of a permanent civil anti-harassment order for each of the victims
named in the nine counts against the defendant.”
During the January 31, 2011, plea hearing, the State explained that all of the nine
victims were requesting permanent lifetime anti-harassment orders because “they did
not want to see the defendant” and that under the orders “the defendant understands if,
in fact, he ever were to by chance walk into a local Safeway or grocery store and one of
the victims perhaps was there, it’s the defendant’s obligation under the antiharassment
orders to leave the premises.” The parties agreed, with the court’s permission, that the
State should sign the anti-harassment orders on behalf of the victims. The defense
indicated that
All of these conditions are fully agreed upon by the defense. As I think
Your Honor knows, this was a result of considerable negotiations between
1 In State v. Wiatt, the court reversed and remanded five counts based on an unlawful search.
127 Wn. App. 1008, WL 950673 (2005); In In re the Personal Restraint Petition of Wiatt, the remaining
convictions were vacated because the court violated Wiatt’s due process rights by excluding him from the
pretrial attorney conflicts hearing. Order Granting Pet., No. 35690-2-Il, at 2 (Wash. Ct. App. Aug. 13,
2010).
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the defense and the prosecutor’s office and I know that the prosecutor
also took the time to correspond with all the victims in the case and make
sure that the settlement was acceptable to them as well. So we agree to
all the terms recommended.
The court asked if Wiatt wanted to address the court before sentencing and Wiatt
replied, “No, thank you, Your Honor. I’ll defer to my lawyer.” The court then noted that
the orders “are lifetime civil antiharassment orders under the statute. They’re in effect
immediately, they will be immediately filed in the clerk’s office.”
Seven years later, Wiatt moved, in each of the nine civil causes, to vacate the
anti-harassment orders, arguing that the orders were entered without statutory authority.
The State filed a motion to enforce the plea agreement in the criminal cause. In a
hearing on consolidation, Wiatt agreed that the court should hear the State’s motion to
enforce the plea agreement before hearing Wiatt’s motion to vacate the anti-harassment
orders, conceding that “if specific performance is granted and Mr. Wiatt is ordered not to
proceed forward, the solution is simple. The motions [to vacate the anti-harassment
orders] are struck, and the matter is solved.” The court declined to consolidate all
cases, but consolidated the hearing on all pending motions.
At the hearing, the State argued that Wiatt’s attempt to vacate the anti
harassment orders violated the plea agreement and that the court should order specific
performance barring Wiatt from challenging the anti-harassment orders. The court
agreed with the State and concluded that the plea agreement was indivisible and Wiatt
received the benefit of the bargain, a lesser sentence and avoidance of a new trial, in
exchange for entry to the permanent anti-harassment orders. The court concluded that
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the terms of the plea agreement would be breached if Wiatt were allowed to vacate the
anti-harassment orders and ordered specific performance. Wiatt appeals.
Wiatt contends that the plea agreement is unenforceable because Wiatt served
his sentence and therefore the court cannot exercise criminal jurisdiction over Wiatt.
We disagree.
A plea agreement is a contract between the State and the defendant. State v.
McDonald, 183 Wn.2d 1, 8, 346 P.3d 748 (2015). After a party breaches the plea
agreement, the nonbreaching party may either rescind or specifically enforce it. State v.
Armstrong, 109 Wn. App. 458, 462, 35 P.3d 397 (2001). The trial court found that
Wiatt’s motion to vacate the anti-harassment orders constituted “a material breach of
the 2011 plea agreement between the prosecution and defense.” We review the trial
court’s interpretation of a contract de novo. Tacoma Narrows Constructors v. Nippon
Steel-Kawada Bridge, Inc., 138 Wn. App. 203, 216, 156 P.3d 293 (2007).
In general, we read the terms of a plea agreement the same as the terms of a
contract. State v. Thomas, 79 Wn. App. 32, 39, 899 P.2d 1312 (1995). Our reading,
however, is constrained by the constitutional due process considerations and “we
cannot read any terms in a way the defendant did not understand at the time of the
entry of the plea.” Thomas, 79 Wn. App. at 39.
First, Wiatt cites no authority for his contention that a plea agreement is
unenforceable after a defendant has served his sentence. The plea agreement is a
contract between the State and defendant, where the State agrees to recommend a
specific sentence in exchange for the defendant’s guilty plea. The sentencing court is
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not bound, however, by the State’s recommendation. State v. Henderson, 99 Wn. App.
369, 374, 993 P.2d 928 (2000).
The language in the plea agreement is clear—Wiatt agreed to the entry of nine
permanent civil anti-harassment orders in exchange for lesser charges and avoidance
of a new trial. The nine civil anti-harassment orders are legally distinct orders from the
judgment and sentence. The court accepted Wiatt’s plea of guilty and the State’s
recommendation for sentencing and entry of the nine anti-harassment orders. The
court allowed the State to facilitate the entry of the orders on behalf of the victims. The
court entered the permanent orders under its statutory authority in RCW 10.14.080(4),
which allows it to enter permanent anti-harassment orders when the court finds that,
without the orders, unlawful harassment will likely resume. Wiatt stipulated to the
factual basis for the anti-harassment orders. Thus, the court may continue to exercise
civil jurisdiction over Wiatt, under the permanent anti-harassment orders and has
authority to enforce the parties’ agreement under the plea agreement to prevent Wiatt
from vacating the anti-harassment orders.
When Wiatt sought to vacate the anti-harassment orders, he breached the plea
agreement. The parties reached this agreement after lengthy negotiations, with Wiatt
represented by counsel. The State agreed to charge Wiatt with gross misdemeanors,
rather than felonies, in exchange for Wiatt’s agreement to the entry of permanent anti
harassment orders. Both the State and Wiatt benefitted from the bargain. The trial
court did not err by ordering specific performance.
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We affirm the trial court~s decision ordering specific performance that barred
Wiatt from moving to vacate the nine anti-harassment orders and enforcing the plea
agreement.
LA Al
WE CONCUR:
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