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March 2, 1990.


The opinion of the court was delivered by

The issue in this criminal appeal is whether the State breached its plea agreement with defendant Tyrone Crawford.

We hold that no breach occurred and affirm the sentence imposed.


  The facts are not in dispute. Crawford was originally charged with one count of aggravated kidnapping, two counts of rape, one count of aggravated robbery, and one count of aggravated burglary. The charges stemmed from an incident in which two men broke into the home of an elderly Topeka woman, stole her purse and jewelry, and forced her at gunpoint into her car. The woman was raped once in the car by one of the intruders, whom she later identified as Crawford. After a long drive, the woman was taken to a basement. Her arms, legs, and mouth were taped with duct tape. The woman was held in the basement for approximately 20 hours, during which time the same man, whom she again identified as Crawford, raped her a second time. The following

[246 Kan. 232]

      evening, the two men placed her in the trunk of her car, drove to a remote location near Clements, Kansas, and left the woman along a country road. Her car was later recovered in Wichita.

  The basement in which the woman was held was later identified through a Crime Stoppers tip. Crawford was linked to the crime through the identification of the basement and an interview with the people who rented the house where the basement was located. Although the woman was not wearing her glasses when the two men abducted her and her head was covered with a towel during most of her ordeal, she testified at the preliminary hearing that she was able to see the man who held the gun to her head and raped her on different occasions. She positively identified that man as Crawford.

  Crawford was bound over for trial and subsequently entered into plea negotiations with the State. At the plea hearing the prosecutor described the plea agreement that had been reached:
"As a result of our negotiations, the State would move to dismiss all charges except Counts 1 and 4, Count 1 is Aggravated Burglary, a C felony, Count 4 is Rape, a B felony. It is my understanding the defendant will enter a plea to Counts 1 and 4 of the Complaint. In addition to that, the State will not request imposition of the Habitual Criminal Act, and we would note for the Court that the provisions of the Mandatory Handgun or Firearm Sentencing statute would not apply in this case. The State will not oppose these two sentences running concurrently internal, one with the other, in regard to the minimum and maximum ends of the sentencing spectrum. Of course, I have provided the Court with a note on that earlier in regard to the top end or maximum end of the sentences in each of these cases. The State would not request over twenty years on the top end of the sentencing. In regard to the minimum end of the spectrum, the State would not request a set time in regard to the minimum end of the sentencing spectrum. In addition to which the State would reserve the right to present comment concerning the factors under the sentencing statute, K.S.A. 21-4606." (Emphasis added.)
  Crawford pled no contest to the aggravated burglary and rape charges. He agreed that the evidence presented at the preliminary hearing was sufficient to establish a factual basis for the crimes charged. The court advised Crawford of his right to a jury trial, his privilege against self-incrimination, and his right to confront the witnesses against him. The court also advised that, by pleading no contest, Crawford was giving up these rights. Crawford was informed by the court of the minimum and maximum

[246 Kan. 233]

      sentences for each of the charges and that these sentences were subject to the court's discretion. Regarding the maximum sentence for the rape charge, the court made the following comment: "The State will not request more than twenty, but it is still up to the Court. That's what you are saying on the sentencing because this is merely a recommendation."

  At the sentencing hearing defense counsel made the following remarks on Crawford's behalf:
"The District Attorney offered a plea agreement which he [Crawford] felt [was] in his best interests. He [Crawford] has Your Honor, never admitted to me that he ever committed these offenses which makes it very, very difficult to argue in the sentencing and in the fact that his co-defendant went to trial on basically the same facts and was found not guilty. The other individual that was involved in this received a plea agreement and is now roaming free. Mr. Crawford for his own personal reasons simply did not want to run the risk of having to spend the rest of his life in the jail so he entered into this plea agreement with the criteria for imposing minimum sentences."
  The State commented that, although it was not opposing concurrent sentences and was not requesting a maximum sentence over 20 years, the court should examine the defendant's prior history, the extent of harm, and whether the defendant intended to harm. Counsel invited the court to look at the sentencing factors in K.S.A. 21-4606(2)(a), (b), and (c). The court made the following statement prior to imposing sentence:
"I've never known of a rape that wasn't brutal and I'll be quite blunt with you, it is the worst — it is the most terrible crime that I've seen based on the affidavit and the statements of the victim in relationship to the testimony given at the preliminary hearing. I have examined the criteria set out in 21-4606 and I understand the defendant's continual denial in relationship to this act. This was not just an act, this was a series of acts over an extended period of time from the point of being taken by gun point, being put in — to being raped in an automobile, to being put in a trunk, being left 18 hours to be raped again, and then being discarded like a dirty shirt in a field somewhere. The Court was literally outraged by this kind of conduct, it just cannot be. And after careful consideration of all of the factors, review of the presentence report, considering the criteria, understanding the plea negotiations and weighing those which I do consider carefully . . . ."
  The court sentenced Crawford to the maximum sentence of 5 to 20 years for aggravated burglary and the maximum sentence

[246 Kan. 234]

      of 15 years to life for rape and ordered the sentences ...

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