State v. Gee, A-1-CA-35362

David Gee was charged with DUI; the State offered (in an email) to recommend the mandatory minimum if he pleaded to a third-degree felony based on five prior DUIs; Gee did not accept that offer and contested the number of priors.
At a pretrial conference and at plea hearing, defense counsel stated Gee would plead guilty to the act of DUI but reserved the dispute over the number of prior DUIs for later resolution; the plea agreement expressly stated there was no sentencing agreement.
The district court later ruled three Texas convictions counted as prior DUIs, making Gee a sixth-offense DUI (third-degree felony).
At sentencing the State requested the maximum for a sixth DUI; defense counsel asked to withdraw the plea (or alternatively for the mandatory minimum), arguing it is typical for the State to recommend a lesser sentence for pleas — but did not inform the court of any specific prior promise by the prosecutor.
The district court denied withdrawal and imposed the statutory maximum; Gee appealed arguing breach of a promise to recommend the minimum and ineffective assistance of counsel.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did the State breach a promise to recommend the minimum sentence?	State: No breach; any email offer was contingent and lapsed because Gee rejected it.	Gee: Prosecutor promised to recommend the minimum as part of plea negotiations.	No breach; offer was conditional on pleading to a third-degree felony and was not accepted.
May Gee withdraw his plea for alleged broken promise when he did not disclose the promise at plea colloquy?	State: Gee cannot challenge the plea because he failed to disclose the promise when questioned at the plea proceeding.	Gee: He relied on the promise and was entitled to relief.	Court: Gee failed to inform the court of any promise; therefore he may not now challenge the plea on that basis.
Does the fundamental error doctrine rescue Gee's undeveloped/undisclosed claim?	State: Doctrine should not apply where defendant never alerted the trial court and the claim is unpreserved.	Gee: Court should apply fundamental error to correct the injustice.	Court: Declines to extend fundamental error to these circumstances; refuses review.
Was counsel ineffective for not alerting the court to an alleged unwritten promise?	State: Issue raised too late and not properly preserved in reply brief; preferred to be raised via habeas.	Gee: Counsel’s failure amounted to ineffective assistance warranting relief.	Court: Declines to consider on appeal (raised first in reply) and directs any ineffective-assistance claim to collateral habeas.

State v. Jonathan B., 954 P.2d 52 (discussing abuse of discretion review for plea withdrawal)
State v. Pieri, 207 P.3d 1132 (where the State breaches a plea promise, defendant may withdraw or be resentenced)
State v. Lord, 573 P.2d 1208 (defendant barred from challenging plea when failing to disclose plea promises at proceeding)
State v. Cunningham, 998 P.2d 176 (describing the fundamental error doctrine and its narrow application)
Duncan v. Kerby, 851 P.2d 466 (preference that ineffective-assistance claims be raised in habeas proceedings)
State v. Schoonmaker, 176 P.3d 1105 (record often inadequate on direct appeal to resolve ineffective-assistance claims)