State of Washington v. Clifford Elton Chew ( 2013 )

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v. ) UNPUBLISHED OPINION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
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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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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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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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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 Wash. App. 196, 199,69 P.3d 901 (2003).
Plea agreements are contracts and are analyzed under basic contract principles.
State v. Sledge, 133 Wash. 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 Wash. 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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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 Wash. 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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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 Wash. 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 Wash. App. 77, 143 P.3d 343 (2006), Mr. Chew argues that the detective's
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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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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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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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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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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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