State v. Barber, 248 P.3d 494

Barber pled guilty to felony DUI after a hit-and-run; plea agreement promised the State would recommend 51 months and credit for time served, with concurrent sentencing, but the plea form did not specify community custody.
Before plea acceptance, the court summarized the agreement including a 7-point offender score and a standard range of 51–68 months; the court asked about community custody, but defense and prosecutor responses were inconclusive.
The State recommended 51 months to run concurrent with another case; the court followed this recommendation and sentenced Barber to 51 months.
About six months later, DOC informed the prosecutor that felony DUI carried a mandatory 9–18 month term of community custody; the State sought to amend the judgment.
Barber and the State agreed the plea was invalid and elected specific performance; disputes arose over whether the court would be bound by the State’s recommendation; resentencing yielded a statutorily mandated community custody term.
Court of Appeals had ruled on the remedy; this court overrules Miller to limit specific performance to breach situations, not mutual mistake, affirming the Court of Appeals.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Miller correctly allowed specific performance for mutual mistake to enforce an illegal sentence	Barber (Barber) argues Miller should be upheld; specific performance enforces the illegal sentence	State argues Miller should stand, permitting enforcement of an illegal sentence	Miller is incorrect and Harmful; overruled as to mutual mistake remedy.
Whether specific performance can bind the court to an illegal sentence	Barber believes the court must enforce the illegal sentence	State contends only the recommendation is enforceable, court can reject	Specific performance not available for mutual mistake; barred from enforcing illegal sentence.
What is the proper remedy when a plea is based on mutual mistake as to sentencing	Barber should receive withdrawal as the remedy	State argues for limited specific performance or other remedies	Withdrawal is the correct remedy; Miller overruled.

Santobello v. New York, 404 U.S. 257 (U.S. 1971) (due process requires honoring plea promises; breach allows withdrawal or specific performance)
State v. Miller, 110 Wash.2d 528 (1988) (mutual mistake can support specific performance enforcing an illegal sentence (overruled))
State v. Cosner, 85 Wash.2d 45 (1975) (due process limits reliance on enhanced penalties; misinformed penalty not enforceable)
State v. Tourtellotte, 88 Wash.2d 579 (1977) (breach remedy; specific performance appropriate when State breaches plea)
In re Pers. Restraint of Williams, 96 Wash.2d 847 (1982) (due process in plea bargains; priority of defendant's rights over statutory mandates)
State v. Sledge, 133 Wash.2d 828 (1997) (plea agreements as contracts; specific performance to enforce promises)
In re Pers. Restraint of Moore, 116 Wash.2d 30 (1991) (statutory authorization limits on plea-bargain sentences)