The opinion of the court was delivered by
Dеfendant Robert Peterson pleaded no contest to attempted sexual exploitation of a child after digital photographs of children engaged in sexual acts were found on his work computer. The district court judge sentenced Peterson to 52 months in prison, with lifetime postrelease supervision. In Peterson’s pe
We vacate Peterson’s sentence and remand to the district court for further proceedings based on the State’s violation of the plea agreement. This result eliminates any need to reach Peterson’s second and third issues.
Factual and Procedural Background
Peterson was charged with two counts of sexual exploitation of a child under K.S.A. 2006 Supp. 21-3516(a)(2). In exchange for Peterson’s plea of no contest, the State amended the information to á single count of attempted sexual exploitation of a child in violation of K.S.A. 21-3301 and K.S.A. 2006 Supp. 21-3516(a)(2).
As part of the plea agreement, the State agreed not to object to Peterson’s motion for dispositional departure to probation. The State also agreed to remain silent at sentencing unless there were misstatements оf fact.
At the first of two hearings on sentencing, the district judge found Peterson to be a persistent sex offender because of a 1994 sexual battery conviction. Under the Kansas Sentencing Guidelines Act, this finding doubled the duration of Peterson’s presumptive sentence.
At the same hearing, Peterson called clinical psychologist Robert Barnett as a witness. Barnett had not been present at Peterson’s preliminaiy hearing. Barnett testified that he conducted a clinical interview of and testing on Pеterson and, based on the facts of the case as provided to him by Peterson, concluded that Peterson was “a good candidate for probation.” Peterson had told Barnett that tire images of child pornography were from “pop-up” Internet windows that displayed the images after Peterson did a search for information on a child’s murder that had been the subject of widespread national media coverage.
Peterson objected to McGowan’s line of questioning on the grounds that it presented the same evidence offered at Peterson’s preliminaiy hearing and went “beyond the scope of tire plea agreement in this case which was that the State was going to stand silent at sentеncing.” The district court judge overruled the objection because Peterson had provided an incomplete history to Barnett. The judge said Barnett had “a right to know” all of the information imparted by McGowan’s questions in order to form his professional opinion.
McGowan then continued her cross-examination. Barnett said he was unaware that 1,297 images of female children in swimsuits and underwear and 617 images of nude children and children engaged in sexual acts were found on Peterson’s work comрuter. Barnett nevertheless maintained that he did not believe Peterson was a pedophile or a risk to tire community. McGowan tiren asked: “But it’s been established [Peterson] hasn’t been honest with you about his prior offense or this one?” Barnett answered: “Yes.”
After Barnett’s testimony, Peterson’s counsel, Sarah Swain, presented her argument to the district court in support of the motion for dispositional departure. Swain first reminded the court of the State’s plea agreement promise to remain silent at sentencing. She continued: “It seems clear Ms. McGowan wants to re-litigate the facts in this case.”
After Swain’s argument, McGowan spoke:
*566 “Your Honor, I’d like to address—I believe Ms. Swain basically accused me of violating the plea agreement so I wanted to talk about that if I could.
“Ms. Wilson was the prosecutor who had handled the plea and she wrote veiy specific notes about the sentencing agreement and it says, I quote, ‘The State will stand silent if the defendant does not malee factual misstatements.’
“I think when I read through Dr. Barnett’s report—before you convened court, I asked Ms. Swain if I would be allowed to question Dr. Barnett because I don’t usually see that when there is an expert as being part of the standing silent agreement, so I did have her permission to do that prior to beginning court. And I just believe that the plea agreement would allow me and also her permission to allow me to cross tire doctor. I’m not going to make any argument of that plea agreement with the exception of what Dr. Barnett had said. I don’t think it’s fair for the doctor to try to reconsider his findings on the fly up on the stand when he has all of that information thrown at him. But it does show Mr. Peterson wasn’t being honest with the evaluator about what his involvement was in this particular case or in his other case, and I think that should be considered by the court that he cannot or will not address Iris looking at child pornography or desire to look at child pornography. That’s all I have to say.”
At the second hearing on sentencing, the district judge denied Petеrson’s dispositional departure motion and sentenced him to 52 months in prison with lifetime postrelease supervision.
On Peterson’s appeal to the Court of Appeals, the panel relied on State v. Woodward,
The Court of Appeals panel did not focus explicitly on the prosecutor’s question to Barnett about Peterson’s honesty or her statement to tire sentencing court that “Mr. Peterson wasn’t being honest with the evaluator about what his involvement was in this particular case or in his other case, and I think that should be considered by the court that he cannot or will not address his looking at child pornography or desire to look at child pornography.”
This court granted Peterson’s petition for review.
An allegation that the Statе breached a plea agreement presents a question of law over which this court exercises unlimited review. State v. Antrim,
A plea agreement is a contract between the State and the accused, and the exchanged promises must be fulfilled by both parties. See Santobello v. New York,
“[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 bargaining process may require a different analysis in some circumstances.” State v. Copes,
In Woodward, defendant David Woodward agreed to plead guilty to kidnapping, two counts of sexual exploitation of a child, rape, indecent liberties with a child, and felony murder in connection with the killing of a 5-year-old child and the sexual molestation of an 8-year-old child. In exchange, the State agreed to recommend a particular sentence, and it did so at the sentencing hearing. In addition to making the recommendation, howеver, the prosecutor reminded the judge of the heinous nature of the offenses, and the losses suffered by the victims’ families. The prosecutor also at
This court held:
“The State can breach a plea agreement by effectively arguing against the negotiated sentencing recommendation. However, if tire State actually makes the sentence recommendation that it promised, the prosecutor’s further comments in support of the recommended sentence do not breach the plea agreement so long as the comments do not effectively undermine the recommendation.” Woodward,288 Kan. 297 , Syl. ¶ 3.
We reasоned that the recommended sentence was not the minimum the court could impose, and the State was “free to argue why the recommended sentence was also the most appropriate sentence to impose under the circumstances.”
In this case, the Court of Appeals determined that Peterson’s situation was similar to that in Woodward. Peterson,
We disagree. Woodward is not directly on point and is not dis-positive of this case. Unlike Woodward, where there was no indication that the Stаte was required to stand silent at sentencing, Peterson’s plea agreement did so require. In addition, the rationale of Woodward—that a prosecutor can argue in support of a recommended sentence when a defendant may receive a lesser sentence—is inapplicable when no recommended sentence has been agreed upon; when the defendant is requesting the lowest possible sentence beyond time served; and when the State has expliсitly
A review of precedent in Kansas and other jurisdictions reveals three typical plea agreement promises prosecutors make that govern their conduct at sentencing: (1) a promise to recommend a mutually agreed upon sentence; (2) a promise to take no position on a portion or specific aspect of the sentence, e.g,, whether consecutive or сoncurrent sentences should be imposed; and (3) a promise to remain silent at sentencing. Woodward controls the first type of promise. See State v. Urista,
Other courts have considered whether a prosecutor breaches a plea agreement by speaking at sentencing after agreeing to stand silent or mute. See Colvin v. Taylor,
In State v. Williams,
Notwithstanding its duty to die court, however, the State is free to negotiate away any right it may otherwise have as part of a plea agreement. See United States v. Block,
Yet, a promise to remain silent at sentencing has limits. It does not require a prosecutor to stand silent in the face of factual misstatements or to withhold relevant information from the court. See Sullivan,
At least one jurisdiction has held that a prosecutor who has agreed to remain silent at sentencing also may alert the court to a defendant’s conduct occurring between the presentence investigation and the sentencing hearing. See Jackson,
In a Woodward, situation, the prosecutor is not required to ignore defense attempts to minimize culpability. See
Here, the prosecutor’s questions to Barnett about his knowledge of the facts of this case and Peterson’s prior conviction were appropriate in order to correct misimpressions created by Barnett’s testimony and to ensure that the court had complete and accurate information concerning the defendant. See Block, 660 F.2d at
That being said, tire prosecutor trod very close to what our fellow judges in Wisconsin recognized as a “fine line” during her cross-examination of Barnett, veering dangerously toward general impeachment of the exрert’s testimony. See Williams,
On the other hand, we are unpersuaded by Peterson’s argument that Barnett’s testimony did not contain any factual misstatements. Peterson asserts that “disagreements about what the facts were do not amount to misstatements of fact.” We have more than mere disagreements about the facts here. At the preliminary hеaring, there was no disagreement about the number of photographs found, the fact that Peterson viewed child pornography on his work computer, or the search terms he employed to reach the photographs. Nor was there any disagreement about Peterson’s prior convictions on two counts of aggravated sexual battery. “[A] deliberate omission is often equal to an actual misstatement,” State v. Lockett, 232 Kan 317, 319,
We therefore hold that the prosecutor’s questions challenging the factual basis for Barnett’s opinion were appropriate and did not violate the plea agreement.
Had the prosecutor been content with cross-examination, Peterson would leave this court empty-handed. But she was not. She polished off her closing comments to tire court by saying Peterson’s
Citing Court of Appeals’ precedent, the State’s brief may intimate that the standard for constitutional harmless error may аpply when the State has breached a plea agreement. But the State fails to pursue such an argument. As the party benefitting from violation of Peterson’s constitutional right to due process, it has failed to “prove[] beyond a reasonable doubt that the error complained of . . . did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed” to the sentence. See State v. Ward,
Resentencing before a different judge is the typical remedy for the State’s breach of a plea agreement. See United States v. VanDam,
Conclusion
For all of the reasons detailed above, we reverse the judgments of the Court of Appeals and the district court, vacate Peterson’s sentence, and remand this case to the district court for further proceedings consistent with this opinion.