State v. Hernandez

ON REHEARING

BISTLINE, Justice.

Though still convinced that we were correct in our earlier decision in declining to be bound by the stipulation below which comtemplated our undertaking to decide a constitutional issue which had not been passed upon by the district court, the Court is now of the view that we should not have affirmed the judgment entered pursuant to that agreement, and that the defendant should be allowed to move for withdrawal of his guilty plea.

In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), the Supreme Court adopted the United States Fifth Circuit Court of Appeals’ standard for determining the validity of guilty pleas. Brady, supra, at 755, 90 S.Ct. at 1472, citing Shelton v. United States, 246 F.2d 571, 572 n. 2 (5th Cir.1957) (en banc), reversed on other grounds 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579 (1958). That standard invalidates pleas based on “unfulfillable promises” of the prosecutor. Brady, supra, 397 U.S. at 755, 90 S.Ct. at 1472. It is therefore clear that if the defendant, in deciding to enter a plea of guilty to a criminal charge, has relied upon some promise or representation made by the prosecution, the State may not later either renege upon its promise or depend upon the courts to in essence relieve it from the terms of its voluntary agreement by ruling that a prosecutor’s bargained-for promise is of no effect. If the defendant’s plea is based upon a promise which cannot be met by the State, that plea may be withdrawn at the defendant’s insistence. To rule otherwise would be to deprive criminal proceedings of their indispensable element of fairness and the state of its honor and credibility in all future such plea bargaining negotiations. “At stake is the hon- or of the government public confidence in the fair administration of justice, and the efficient administration of justice ... in a federal scheme of government.” United States v. Carter, 454 F.2d 426, 428 (4th Cir.1972) (emphasis added). The fair administration of justice is squarely our responsibility.

, [5] In the present case, it was specifically stated in the negotiated plea agreement that “the prosecution stipulates that by the entry of this plea that the Defendant does not waive his right to appeal whether the statute to which he pleads guilty to is unconstitutional, having previously raised the issue.”' Negotiated Plea Agreement, p. 2. Given this stipulation, the defendant accordingly entered his plea of guilty. The defendant’s reliance upon the state’s representation that the defendant would be free on appeal to raise all of his objections to the statute’s constitutionality was a reliance upon an “unfulfillable promise” by the state.

We note that the procedure followed by defense counsel and the prosecution was very nearly that encompassed by I.C.R. 11(2), which provides for conditional pleas of guilty. Specifically, the rule allows a defendant to enter a conditional plea of guilty and reserve in writing the right, on appeal from the judgment, to review any specified adverse ruling. Although this rule was not in effect at times here pertinent, such procedures had been utilized in other jurisdictions, of which such precedent counsel may have been aware.

The shortcoming of the agreement here entered into was only in the failure of the parties to provide for first obtaining the decision of the district court on the constitutionality of I.C. § 18-6605 before entering the conditional plea of guilty. The question of § 18-6605’s constitutionality in a consensual context is different than one in which force is an element. Only where the trial court holds against the defendant on that issue would it be proper to enter a conditional plea of guilty. If the holding is in favor of the defendant, a conditional guilty plea would not be involved. Since the defendant did not know that this Court would not deem itself committed by the aforesaid stipulation, the defendant’s guilty plea could not have been knowingly and intelligently made. Accordingly, the judgment of conviction is vacated and the cause remanded with directions that the district court allow the defendant an opportunity to move to withdraw his guilty plea.

DONALDSON, C.J., and McFADDEN, J., (pro tem), concur.