Review of the judgment of the Court of Appeals in an
unpublished opinion filed October 11, 2013.
Appeal from Sedgwick District Court; JOSEPH
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed, sentence vacated, and case remanded with directions.
BY THE COURT
1. A criminal defendant is denied due process if the State fails to fulfill a promise in that defendant's plea agreement.
2. An allegation the State breached a plea agreement presents a question of law over which an appellate court exercises unlimited review.
Peter Maharry, of Kansas Appellate Defender Office, argued the cause, and Theresa L. Barr, of the same office, was on the brief for appellant.
Julie A. Koon, assistant district attorney, argued the cause, and Nola Tedesco Foulston, former district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with her on the briefs for appellee.
BILES, J. BEIER, J., dissenting. NUSS, C.J., and LUCKERT, J., join in the foregoing dissenting opinion.
Tiffany A. Jones claims the prosecutor in her aggravated robbery case breached a plea agreement obligating the State to join in her request for probation. A divided Court of Appeals panel has twice held the prosecutor did not breach the agreement. State v. Jones, 264 P.3d 1058, 2011 WL 6309613 (Kan. App. 2011) (unpublished opinion) ( Jones I ), summarily reversed and remanded for reconsideration on May 20, 2013; State v. Jones, 310 P.3d 1078, 2013 WL 5610136 (Kan. App. 2013) (unpublished opinion) ( Jones II ), review granted August 28, 2014. A majority of this court agrees with Jones and remands her case to the district court for resentencing. We hold the State's breach under the circumstances was one of omission--a failure to ensure the sentencing court was aware of the probation recommendation the State obligated itself to make.
Factual and Procedural Background
Jones was charged with a 2008 aggravated robbery in violation of K.S.A. 21-3427. She agreed to plead guilty as charged. In exchange, the prosecutor agreed to " join in [Jones'] request for a downward dispositional departure to probation and [to] recommend supervision by Community Corrections Field Services" if Jones' criminal history score was a G or lower. Otherwise, the prosecutor would recommend the sentencing court impose the high number in the Kansas sentencing guidelines grid box.
Under the plea agreement, the " agreed joint basis for dispositional departure" would include
" the fact that [Jones] was not the sole actor in this case; the joint request of the parties; that appropriate treatment programs exist and are available that are more likely to be more effective in reducing offender recidivism, including substance abuse treatment, anger management, and mental health services; and that a non-prison sanction will serve community safety interests by promoting offender reformation."
The plea agreement further stated that if her criminal history score was G or lower, Jones was " not free to argue for alternative dispositions, but may cite additional bases in support of a departure." The agreement did not address what the State would do if Jones argued an additional reason to depart. Jones pleaded guilty to aggravated robbery as agreed. During the plea hearing, the district court indicated it had a copy of the plea agreement and the prosecutor accurately summarized its terms for the record. After the hearing, the agreement was filed with the district court as an unidentified
attachment to a document entitled " Defendant's Acknowledgement of Rights and Entry of Plea."
Jones' criminal history score was determined to be I, which triggered the State's obligation to join in her request for probation. The presentence investigation PSI report did not reference the plea agreement's terms.
At the sentencing hearing, a different judge presided and the State was represented by a different prosecutor. The judge stated he had read Jones' departure motion and then heard argument. The judge made no explicit reference to the plea agreement's terms, and it is not clear from the appellate record whether the judge had the plea agreement before him at the time of sentencing.
Defense counsel informed the sentencing court there was a plea agreement and recited some of the facts surrounding the aggravated robbery. Defense counsel then indicated Jones had contacted correctional counseling and arranged to participate in an anger management program. Counsel then stated: " [A]t this point we believe that, not only I think the [S]tate is in agreement, that ...