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State v. Foster

April 11, 2008


Appeal from Riley District Court; PAUL E. MILLER.


1. When the State breaches a plea agreement, the defendant is denied due process.

2. A prosecutor need not be enthusiastic in making a recommendation agreed upon in a plea agreement. But when the State has agreed to make a recommendation, the State must at least make that recommendation in a manner that objectively makes it appear minimally acceptable.

3. A prosecutor may present information at sentencing that is relevant to the decisions the judge is required to make. But when the prosecutor provides negative information that may lead the court to reject the recommended sentence agreed upon in a plea bargain, the prosecutor must also provide some rationale in support of the recommended sentence.

4. When the prosecutor provides a statement of facts that does not support the recommended sentence and fails to provide any rationale under which the court might nonetheless adopt the recommended sentence, the State has not fulfilled the terms of the plea agreement.

The opinion of the court was delivered by: Leben, J.

Sentence vacated and case remanded with directions.


When Charles Foster entered into a plea-bargain agreement in which he agreed to plead no contest to aggravated assault, the State agreed to recommend probation if Foster's criminal-history score was level C or better. The sentencing report scored Foster's criminal history as level C, so the State was committed to recommend probation at the sentencing hearing. But Foster's crime involved the use of a handgun, and K.S.A. 21-4704(h) provided that he could only receive probation if the trial court specifically found that probation would serve the interest of community safety by promoting Foster's reformation. At sentencing, the prosecutor recommended probation, but she otherwise provided only negative information about Foster. She never suggested that the court could properly grant probation under the statute. The prosecutor substantially violated the plea agreement by undercutting the required finding for granting probation without providing any support for the recommendation of probation.

When the State breaches a plea agreement, the defendant is denied due process. And the defendant's plea in this case clearly relied on the State's agreement to recommend probation. We must therefore vacate the sentence previously entered and remand for a new sentencing hearing at which the State will be bound to comply with the plea bargain it made.

The Defendant Pleaded No Contest in Exchange for the State's Recommendation of Probation on a Presumptive-Prison Offense.

Foster pleaded guilty to aggravated assault, a severity-level-7 person felony. At the plea hearing, the prosecutor summarized the facts supporting the charge. Foster and Angel Brown had been drinking at a bar and began arguing. After they went home, Foster held a loaded handgun to Brown's head. Brown's daughter then came into the room with a knife, and Foster put the gun down. By pleading no contest, Foster did not agree that these facts were true, but he implicitly conceded that the State could prove them to a jury beyond a reasonable doubt. See State v. Green, 283 Kan. 531, 547-48, 153 P.3d 1216 (2007). The prosecutor's summary of the facts generally tracked the testimony presented in the preliminary hearing; that testimony had been transcribed and was in the court file as of the date of the plea hearing.

When no special sentencing rules apply, a person convicted of a severity-level-7 felony has a presumptive-prison sentence if his or her criminal-history score is A or B, but that person would be presumptive probation with a score of C or better. The dividing line between a score of B or C is simple: the score is C if the defendant has only one prior person felony, but the score is B with two prior person felonies.

But special rules can change the presumptive sentence found on the guidelines chart. Here, for example, K.S.A. 21- 4704(h) makes this a presumptive-prison offense--no matter what the criminal history score may be--because the crime was committed with a gun. See also K.S.A. 21-4704(k) (crimes committed in association with any criminal street gang are presumptive-prison offenses); K.S.A. 21-4603d(f) (when new felonies are committed while the person is on bond, probation, or parole for some other felony, the new sentence may be imprisonment even if the defendant otherwise would be eligible for probation).

Everyone, from a criminal defendant to the attorneys representing both that defendant and the State, must carefully factor into plea negotiations the legal framework that may affect sentencing, including the guidelines chart and the special rules. In our case, it appears that the parties and their attorneys did not initially think about K.S.A. 21-4704(h), which made this a presumptive-prison offense. Instead, both the plea agreement and the notice of rights reviewed by the defendant assumed that he would be presumptive for probation so long as his criminal-history score was C or better.

In the plea agreement, the State agreed to a non-prison sentence if the defendant's criminal-history score was not A or B. And it specifically agreed not to argue for prison in the event the defendant turned out to have been on a felony bond, probation, or parole at the time this offense took place. Because the only sentencing options were prison or probation, the State properly understood this to mean that it would recommend probation. As the prosecutor summarized the plea agreement at sentencing, "The State did agree to probation in this case and that is our recommendation."

The written plea agreement also included a "Waiver of Rights" by the defendant. The waiver indicates that the parties' counsel understood--and told the defendant--that he would be presumptive for probation if his criminal-history score was C or better:

"I understand that any sentence I receive will be based on my criminal history score . . . .

"I understand that by entering this plea of nolo contendere to the charge of aggravated assault, a severity level 7, person felony, I have a presumption for probation provided a search of my past criminal history reveals that I have no more than one person and one nonperson felony . . . ."

The rights waiver did not mention any special sentencing rules, including the one applicable to crimes committed with a gun. But it did include a substantial waiver of Foster's rights in exchange for the prosecutor's recommendation of probation: Foster waived his right to a jury of his peers, to confront the witnesses against him, to testify on his own behalf, to his presumption of innocence, and to appeal his conviction to a higher court. These rights are not idly waived; the waiver was induced by the State's promise to recommend probation. See United States v. Canada, 960 F.2d 263, 269-70 (1st Cir. 1992).

After the defendant's plea was accepted, a presentence investigation was ordered, as required by K.S.A. 21-4714(a). The court services officer who prepared that report properly reviewed the potential special sentencing rules that might apply. The presentence-investigation report properly noted that the sentence was presumptive prison based on the special rule of K.S.A. 21-4704(h). No doubt this caused some concern to the defendant and his counsel, since both the plea agreement and rights waiver said that if his criminal-history score was C or better, the sentence recommendation would be presumptive probation.

Defense counsel responded by filing a motion for a dispositional departure, a motion that wasn't needed here at all. When no special rule applies, a dispositional-departure motion may be used as a means of getting probation when a defendant is presumptive for prison, or in getting a prison sentence when a defendant is presumptive for probation. When a special rule does apply, however, one must first look closely at that rule. And the special rule applicable here does not require any further motion to get probation. Rather, this statute gives the judge the ability to grant probation if certain fact findings are made:

"'When a firearm is used to commit any person felony, the offender's sentence shall be presumed imprisonment. The court may impose an optional non-prison sentence upon making a finding on the record that the non-prison sanction will serve community safety interests by promoting offender reformation. Any decision made by the court regarding the imposition of the optional non-prison sentence shall not be considered a departure and shall not be subject to appeal.'" K.S.A. 21-4704(h).

So, under the statute, Foster could still get probation, but only upon a finding that probation would promote the safety interests of the community by allowing for his reformation.

The State Did Not Comply with Its Plea Agreement that It Recommend Probation When It Failed to Support the Required Findings for the Granting of Probation.

We have set the stage for the evaluation of the prosecutor's remarks at sentencing by reviewing the sentencing statutes, the plea agreement, and the rights waiver. The parties entered into the plea agreement that assumed if Foster had a criminal-history score of C, he would be presumptive for probation. Foster had a score of C, but in fact he was always presumptive for prison since he committed the crime with a gun. For him to receive probation, the district court had to find that community safety interests would be served by giving Foster probation, and that probation would promote his reformation.

The same judge who took Foster's plea presided over the sentencing. He first called on the prosecutor for her comments.

The prosecutor's statements are significant both for what was said and what was not said. Although she recommended probation, she provided generally negative information about the defendant, and she never suggested that the trial judge could make the findings required in this case to grant probation. Because they are at the crux of this appeal, we set out in detail the prosecutor's comments about sentencing the defendant.

She noted that the defendant could receive probation only if the court made findings that this would serve community safety interests ...

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