Summary 2008 WY 79

Summary of Decision issued July 14, 2008

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Case Name: Gibbs v. State

Citation: 2008 WY 79

Docket Number: S-07-0231

Appeal from the District Court of Campbell County, Honorable John R. Perry, Judge

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina Kerin, Appellate Counsel; and David E. Westling, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Graham M. Smith, Assistant Attorney General

Date of Decision: July 14, 2008

Issues: Whether Appellant materially and substantially breach the plea agreement when he violated a number of the district court's orders prior to sentencing, thereby releasing the State from its obligations under the plea agreement.

Holdings: A plea agreement is a contract between the defendant and the State to which the general principles of contract law are applied. "When determining whether a breach of the plea agreement has occurred the court will: (1) examine the nature of the promise; and (2) evaluate the promise in light of the defendant's reasonable understanding of the promise at the time the plea was entered. The prosecutor must explicitly stand by the terms of any agreement; and if the State is unable to carry out the terms, the correct remedy is withdrawal of the plea. The State may not obtain the benefit of the agreement and at the same time avoid its obligations without violating either the principles of fairness or the principles of contract law.

In determining whether a breach has occurred, the court will: (1) examine the nature of the promise; and (2) evaluate the promise in light of the defendant's reasonable understanding of the promise at the time the plea was entered. Principles of general contract law guide the analysis of the government's obligations under the agreement. As in contract, a party should not be released from its obligations under a plea agreement absent another party's material or substantial breach of that agreement. A material or substantial breach is one that goes to the whole consideration of the agreement. Several factors are relevant to whether a breach is material or substantial, including the extent to which the non-breaching party will be deprived of the benefit it reasonably expected and the extent to which the breaching party's conduct comports with the standards of good faith and fair dealing.

In the present action, the district court deferred its decision as to the acceptance or rejection of the plea until there had been an opportunity for it to consider the presentence report. To the extent that the plea was one identified in W.R.Cr.P. 11(e)(1)(B), the district court was very explicit in telling Appellant that it was not bound by the plea agreement, and that he would not be allowed to withdraw the plea if the bargained for sentence was not imposed. Evidence does show that Appellant did not comply with the terms of the plea bargain, and he was the first to breach it. That does not necessarily justify a breach by the State, but Appellant was clearly on notice that the State's agreement was premised upon his obeying the law and the terms of his release on bond pending his sentencing hearing. Thus, the basis of affirmance of the district court's sentence relies entirely upon the district court's compliance with the strictures of W.R.Cr.P. 11(e)(2). The district court, in effect, deferred its acceptance of the guilty plea until the time of sentencing and opted not to accept it in light of Appellant's conduct in the month preceding his sentencing, and Appellant was fully informed of the possibility that the district court would not accept the plea bargain and that he would not be permitted to withdraw his guilty plea if that was the ultimate result.

The judgment and sentence of the district court are affirmed.

BURKE, Justice, specially concurred, with whom VOIGT, Chief Justice, joined.

The pivotal issue in this appeal, as identified by both parties, is whether the State breached the plea agreement. The majority opinion does not directly resolve this issue. Instead, it holds that the sentence should be affirmed solely because of "the district court's compliance with the strictures of W.R.Cr.P. 11(e)(2)." This holding implies that the State is free to breach a plea agreement so long as a defendant has been advised that the court is not bound by the agreement and the defendant has also been advised that he cannot withdraw his guilty plea if the court does not impose the recommended sentence. However, such an advisement is required in every plea agreement made pursuant to W.R.Cr.P. 11(e)(1)(B). If this advisement relieved the State of its obligation to comply with the plea agreement, it would render the State's promise to make a sentencing recommendation illusory.

The court's discretion to accept or reject a sentence recommended pursuant to a plea agreement does not relieve the State from complying with that agreement. When a defendant enters a guilty plea in exchange for a promise from the State to recommend a specific sentence, the State is obligated to make the agreed-upon sentencing recommendation. The court has discretion to accept or reject the recommendation, but the defendant is entitled to have the court consider the State's recommendation when determining the appropriate sentence. This approach is consistent with established precedent. When a plea of guilty rests to any significant degree on a promise or agreement by the State, that promise must be fulfilled.

Nevertheless, I would affirm the district court's decision because the record establishes that Appellant materially breached the plea agreement prior to the time when the State was obligated to perform. It is axiomatic that, if a defendant fails to comply with a plea agreement, the State is not bound by that agreement. I believe it is equally axiomatic, however, that when a defendant complies with a plea agreement, the State must also fulfill its part of the bargain. That obligation is not negated just because the court has discretion to accept or reject the sentencing recommendation.

J. Hill delivered the opinion for the court.