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State of Kansas v. Gerardo Lalo Urista

February 8, 2013

STATE OF KANSAS, APPELLEE,
v.
GERARDO LALO URISTA, JR., APPELLANT.



Appeal from Shawnee District Court; RICHARD D. ANDERSON, judge.

SYLLABUS BY THE COURT

SYLLABUS BY THE COURT 1. Whether the State breached a plea agreement presents a question of law over which an appellate court exercises unlimited review. 2. When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. If the State fails to fulfill a promise it made in a plea agreement, the defendant is denied due process. This is true even if the record indicates that the district court's sentencing decision was not influenced by the State's actions at sentencing. 3. A plea agreement is generally subject to contract principles and, accordingly, the application of fundamental contract principles is generally the best means to fair enforcement of a plea agreement, as long as courts remain mindful that the constitutional

implications of the plea agreement process may require a different analysis in some circumstances. Kansas courts have recognized that contracts, with the exception of at-will employment agreements, contain implied covenants of good faith and fair dealing. Furthermore, the law implies that contractual provisions requiring the exercise of judgment or discretion will be honestly exercised and faithfully performed. Thus, parties to a plea agreement must act fairly and in good faith in carrying out the promises they have made. 4. The State can breach a plea agreement by explicitly failing to fulfill an agreed-upon promise, such as failing to make a sentencing recommendation to the district court that it promised it would make. But even when the State makes the sentencing recommendation that it promised it would make, it can still breach the plea agreement by making additional comments at sentencing that effectively undermine its sentencing recommendation. 5. Several factors are relevant for determining whether a prosecutor's additional comments at sentencing undermined his or her sentencing recommendation, thereby violating the plea agreement. Courts should consider how restrictive the terms of the plea agreement are in preventing the prosecutor from making the comments at issue. In addition, courts should consider whether the comments were made in response to arguments presented by the defense at sentencing. And further, courts should consider the level of discretion the district court had to impose the recommended sentence.

6. If the State breaches its plea agreement promise-and the defendant raises a timely objection to the breach-such a breach will constitute harmless error only if a court can say beyond a reasonable doubt that the State's promise had little, if any, influence on the defendant's decision to enter into the plea agreement. 7. When a defendant requests specific performance of a plea agreement, the appropriate remedy for the State's breach, unless harmless, is to vacate the defendant's sentence and remand for a new sentencing hearing before a different district court judge with direction that the State comply at sentencing with the provisions of the plea agreement.

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

Review of the judgment of the Court of Appeals in State v. Urista,45 Kan. App. 2d 93, 244 P.3d 287 (2010).

Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed, sentence is vacated, and case is remanded with directions.

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

After entering into a plea agreement with the State, Gerardo Lalo Urista, Jr., entered no contest pleas to numerous crimes in exchange for the State's promise to recommend at sentencing that the district court impose a controlling term of 102 months' imprisonment. At sentencing, the district court declined to impose the recommended sentence and instead imposed a controlling term of 204 months' imprisonment. Furthermore, the district court ordered Urista to register as an offender under the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq., once he is released from prison.

Before the Court of Appeals, Urista raised three issues. First, he argued that the prosecutor violated the plea agreement by making negative comments at sentencing which undermined the parties' recommendation that the district court impose a controlling 102-month prison sentence. Second, Urista argued that the requirement that he register as an offender after being released from prison increased his sentence beyond the prescribed statutory maximum. Accordingly, he argued that pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), the fact that he used a deadly weapon during the commission of his aggravated robbery and aggravated assault convictions-the basis for requiring him to register as an offender-had to be proved to a jury beyond a reasonable doubt. Third, Urista argued that the district court violated Apprendi when it used his prior convictions to determine his sentence under the sentencing guidelines without requiring the State to prove the existence of those convictions to a jury beyond a reasonable doubt.

The Court of Appeals rejected each of Urista's arguments and affirmed his sentences. State v. Urista, 45 Kan. App. 2d 93, 244 P.3d 287 (2010). We granted Urista's petition for review on all three issues and now conclude that the prosecutor's comments at sentencing effectively undermined her sentencing recommendation to the district court, thereby violating the State's plea agreement with Urista. Because we also find that this breach of the plea agreement was not harmless, we vacate Urista's sentence and remand for a new sentencing hearing. Because this outcome renders as moot the two other issues (related to sentencing) presently before us, we decline to reach the merits of those issues.

FACTS

Pursuant to a plea agreement, Urista pleaded no contest to three counts of aggravated robbery, three counts of aggravated assault, one count of burglary, one count of conspiracy to commit burglary, two counts of criminal damage to property, one count of criminal possession of a firearm, one count of theft, one count of criminal discharge of a firearm at an occupied dwelling or vehicle, one count of criminal possession of a firearm by a juvenile (1st offense), and one count of obstructing legal process or official duty. In exchange, the State agreed to recommend imposing the "standard" sentence for the base offense (aggravated robbery) and recommend that all the sentences run concurrently. The parties also agreed not to seek a dispositional and/or durational departure. At Urista's plea hearing, the prosecutor informed the district court of the plea agreement's terms, including the recommended sentence. The district court accepted Urista's no contest plea and found him guilty of the charges.

A presentence investigation (PSI) was conducted which determined that Urista had a criminal history score of C. Accordingly, the applicable sentencing grid box for the base offense of aggravated robbery was C-3 (a sentencing range of 96, 102, or 107 months). See K.S.A. 2008 Supp. 21-4704(a).

The same district court judge who presided over Urista's plea hearing presided over his sentencing. At sentencing, after the parties confirmed that the criminal history score noted in the PSI report was accurate, the district court asked the State for its sentencing recommendation. In response, the prosecutor stated, "Your Honor, there's a written plea agreement in this case and the State's going to ask you to follow that written plea agreement." The prosecutor then proceeded to give an extensive statement regarding Urista's prior juvenile adjudications, his affiliation with a street gang, his current convictions, and information contained within the victim impact statements submitted to the court. In addition to this information, the prosecutor also made several statements expressing a negative and fatalistic opinion of Urista. The prosecutor's statements included the following:

 "I've had the unique opportunity to prosecute [Urista] as a juvenile. I know a lot about Mr. Urista. He's a very dangerous young man. Unless he changes his ways, one of two things is going to happen to him. One, he's going to kill somebody, and he's lucky he didn't do it this time, or somebody's going to kill him."

 "This young man has absolutely no remorse, number one. This young man has absolutely no compassion or any kind of sympathy or empathy. He has no feelings about his victims. He just continually and continually does these very violent acts."

 "And this young man could care less. He could care less the havoc that he has wreaked on this community."

 "And, Your Honor, he may be young in chronological age and maybe even look young physically to you, but I can assure you that this is a young man who is extremely street savvy, and has absolutely no qualms about shooting somebody. He is a menace to this community, he is a danger to this community."

 "He comes from a very good family. His parents are sitting in the back of the courtroom and they have never missed a court hearing from the very first time I prosecuted this young man when he was 14 years old. They never missed one court hearing. They have tried their best to do what's right for this young man, and he has essentially spit in their face. He has had every opportunity, every opportunity, to do right and he has chosen to do wrong."

During her statement regarding Urista, the prosecutor again noted that the parties had entered into a plea agreement and asked the district court to impose a controlling sentence of 102 months' imprisonment (the standard sentence in the C-3 grid box) pursuant to their agreement. The prosecutor repeated this sentencing recommendation after making the comments at issue.

The district court asked the prosecutor if there were any victims present at the sentencing hearing who wanted to address the court. The prosecutor said no but added that the victims had asked her to address the court on their behalf. In response, the court said it would consider the submitted victim impact statements. The district court then asked for ...


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