After entering into a plea agreement with the State, Gerardo Lalo Urista, Jr., entered no contest pleas to numerous crimes in exchange for the State’s promise to recommend at sentencing that the district court impose a controlling term of 102 months’ imprisonment. At sentencing, the district court declined to impose the recommended sentence and instead imposed a controlling term of 204 months’ imprisonment. Furthermore, the district court ordered Urista to register as an offender under the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq., once he is released from prison.
Before the Court of Appeals, Urista raised three issues. First, he argued that the prosecutor violated the plea agreement by making negative comments at sentencing which undermined the parties’ recommendation that the district court impose a controlling 102-month prison sentence. Second, Urista argued that the requirement that he register as an offender after being released from prison increased his sentence beyond the prescribed statutory maximum. Accordingly, he argued that pursuant to Apprendi v. New Jersey,
The Court of Appeals rejected each of Urista’s arguments and affirmed his sentences. State v. Urista,
Facts
Pursuant to a plea agreement, Urista pleaded no contest to three counts of aggravated robbery, three counts of aggravated assault, one count of burglary, one count of conspiracy to commit burglary, two counts of criminal damage to property, one count of criminal possession of a firearm, one count of theft, one count of criminal discharge of a firearm at an occupied dwelling or vehicle, one count of criminal possession of a firearm by a juvenile (1st offense), and one count of obstructing legal process or official duty. In exchange, the State agreed to recommend imposing the “standard” sentence for the base offense (aggravated robbery) and recommend that all the sentences run concurrently. The parties also agreed not to seek a dispositional and/or durational departure. At Urista’s plea hearing, the prosecutor informed the district court of the plea agreement’s terms, including the recommended sentence. The district court accepted Urista’s no contest plea and found him guilty of the charges.
A presentence investigation (PSI) was conducted which determined that Urista had a criminal history score of C. Accordingly, the applicable sentencing grid box for the bаse offense of aggravated robbery was C-3 (a sentencing range of 96, 102, or 107 months). See K.S.A. 2008 Supp. 21-4704(a).
The same district court judge who presided over Urista’s plea hearing presided over his sentencing. At sentencing, after the parties confirmed that the criminal history score noted in the PSI report was accurate, the district court asked the State for its sentencing recommendation. In response, the prosecutor stated, “Your Honor, there’s a written plea agreement in this case and the State’s going to ask you to follow that written plea agreement.” The prosecutor then proceeded to give an extensive statement l'egard-ing Urista’s prior juvenile adjudications, his affiliation with a street gang, his current convictions, and information contained within the victim impact statements submitted to the court. In addition to this information, the prosecutor also made several statements expressing a negative and fatalistic opinion of Urista. The prosecutor’s statements included the following:
• “I’ve had the unique opportunity to prosecute [Urista] as a juvenile. I know a lot about Mr. Urista. He’s a very dangerous young man. Unless he changes his ways, one of two things is going to happen to him.' One, he’s going to kill somebody, and he’s lucky he didn’t do it this time, or somebody’s going to ldll him.”
• “This young man has absolutely no remorse, number one. This young man has absolutely no compassion or any land of sympathy or empathy. He has no feelings about his 'Victims. He just continually and continually does these veiy violent acts.”
• “And this young man could care less. He could care less the havoc that he has wreaked on this community.”
• “And, Your Honor, he may be young in chronological age and maybe even look young physically to you, but I can assure you that this is a young man who is extremely street savvy, and has absolutely no qualms about shooting somebody. He is a menace to this community, he is a danger to this community.”
• “He comes from a very good family. His parents are sitting in the back of the courtroom and they have never missed a court hearing from the very first time I prosecuted this young man when he was 14 years old. They never missed one court hearing. They have tried their best to do what’s right for this young man, and he has essentiallyspit in their face. He has had every opportunity, every opportunity, to do right and he has chosen to do wrong.”
During her statement regarding Urista, the prosecutor again noted that the parties had entered into a plea agreement and asked the district court to impose a controlling sentence of 102 months’ imprisonment (the standard sentence in the C-3 grid box) pursuant to their agreement. The prosecutor repeated this sentencing recommendation after making the comments at issue.
The district court asked the prosecutor if there were any victims present at the sentencing hearing who wanted to address the court. The prosecutor said no but added that the victims had asked her to address the court on their behalf. In response, the court said it would consider tire submitted victim impact statements. The district court then asked for comments from defense counsel. Defense counsel had the following exchange with the district court:
“[DEFENSE COUNSEL]: Well, Your Honor, I’m not sure where to start. I wasn’t quite prepared to come in today and respond to what I consider to be objectionable. And I would object to everything that came after “We’d recommend you follow the plea agreement.’ After that, [the prosecutor] gives a ten-minute speech essentially elaborating on tire factual basis. I’m just afraid that cоmes dangerously close to violating the plea agreement. So we would just object, understanding that the Court has had a chance to read the victim statements and has had a chance to hear the factual basis.
“THE COURT: Other than comments made by, I believe a probation supervisor during tlie juvenile proceedings, it is my recollection or belief that the prosecutor provided essentially tire same factual basis for some of these crimes at the time of the plea. I was aware of the nature of the crimes, and so other than the comments about what was said outside of my presence at a juvenile proceeding, I’m going to consider all of the facts surrounding these crimes.
“[DEFENSE COUNSEL]: Absolutely, Your Honor, And Your Honor, you’ve hit it on the head, Your Honor. Without going back through everything, yeah, there was just a few things that were kind of made me take a pause.
‘Tour Honоr, we would also join in the State’s request that you follow the plea agreement. 102 months is essentially eight and a half years that Mr. Urista will have to think about the crimes that he’s committed. And in speaking with him over the past several months, I do get the sense that this is reality setting in for him. Eight plus years in prison for a young man of 18, 17 when he went into custody, is half of the lifetime that he’s already lived, essentially.”
Defense counsel made further comments in favor of imposing the recommended sentence of 102 months’ imprisonment. Ultimately, the district court, without stating its reasons for doing so, rejected the sentence recommended by the parties and instead imposed consecutive sentences for Urista’s three aggravated robbery convictions (a base sentence of 102 months’ imprisonment followed by two 59-month prison sentences) and concurrent sentences for the remaining felony convictions, resulting in a controlling sentence of 204 months’ imprisonment. See K.S.A. 21-4720(b)(4) (“The total prison sentence imposed in a case involving multiple convictions arising from multiple counts within .an information, complaint or indictment cannot exceed twice the base sentence.”). Additionally, the district court found that because Urista had used a deadly weapon during the commission of the aggravated robbery and aggravated assault convictions, he had to register as an offender pursuant to KORA after he is released from prison.
Urista timely appealed to the Court of Appeals, raising three issues: (1) the prosecutor violated the plea agreement by making statements at sentencing which undermined her sentencing recommendation; (2) based on Apprendi, the fact that he used a deadly weapon during the commission of the aggravated robbery and aggravated assault convictions—thе basis for requiring him to register as an offender under KORA—should have been proven to a jury beyond a reasonable doubt; and (3) because his prior convictions
The Court of Appeals rejected each of Urista’s arguments, concluding: (1) the prosecutor did not violate the plea agreement because her statements were not sufficient to negate her recommendation to the district court that it impose concurrent sentences; (2) based on State v. Chambers,
Violation of the Plea Agreement
Urista contends that the prosecutor violated the plea agreement by making the comments (quoted above) at sentencing. Urista argues that these comments undermined the prosecutor’s recommendation to the district court that it impose concurrent sentences, resulting in a controlling sentence of 102 months’ imprisonment. Accordingly, Urista argues that his case should be remanded for resentencing before a different district court judge. Whether the State breached the plea agreement presents a question of law over which we еxercise unlimited review. See State v. Antrim,
Applicable Lato
“[Wjhen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello v. New York,
“[A] plea agreement is generally subject to contract principles” and, accordingly, the “application of fundamental contract principles is generally tire 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,
Obviously, the State can breach a plea agreement by explicitly failing to fulfill an agreed-upon promise, such as failing to make a sentencing recommendation to the district court that it promised it would make. See Santobello,
But even when the State makes the sentencing recommendation that it promised it would make, it can still breach the plea agreement by making additional comments at sentencing that effectively undermine its sentencing recommendation. See State v. Woodward,
Several factors are relevant for determining whether a prosecutor’s additional comments at sentencing undermine his or her sentencing recommendation, thereby violating the plea agreement. Courts must consider how restrictive the terms of the plea agreement are in preventing the prosecutor from making the comments at issue. For example, in State v. Crawford,
In State v. Johnson,
“In speaking to the court, the State had the right to and did state the extent of defendant’s participation in the crimes. A less than truthful soft pedaling or whitewashing of tlie extent of defendant’s participation in stating the facts to the court would have been inappropriate. On the other hand, editorializing on the facts could he considered as urging consecutive over concurrent sentences, the only issue before the court at sentencing as both offenses were class A felonies.
“In reviewing the prosecutor’s comments themselves and also in their proper context within the sentencing proceeding, we conclude the comments were not tantamount to making a recommendation contraiy to the plea agreement.” (Emphasis added.) Johnson,258 Kan. at 107 .
See also Foster,
Additionally, in Antrim, the State agreed to recommend a life sentence with a mandatory minimum term of 25 years’ imprisonment on each count (three counts of aggravated indecent liberties with a child) with the sentences to run concurrently. The plea agreement specifically recognized that although the defendant was “ ‘free to seek any alternative sentence allowed by law,’ ” the State would oppose any such effort. Antrim,
“ ‘Judge, I’m asking the Court to follow the plea agreement. This is a situation where the defendant has had some concessions. We dismissed some counts for this plea, three counts of aggravated indecent liberties. I’m asking tire Court to run die counts concurrently. In the end it’s one life sentence with a minimum of 25 years’ incarceration.
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“ ‘He has now perpetuated through his own daughter exactly what [the clinical psychologist] has diagnosed die defendant with, which is she’s going to have difficulty in her future. This has changed her life by his act. The defendant can say all he wants. He didn’t force her. He asked and she gave in. She was 7. A 7-year-old does not give in to sexual requests.
“ ‘I’m asking the Court to follow this plea agreement, Judge.’ ” Antrim, 294 Kan. at 633 .
Tbe district court denied the defendant’s motion to depart and decided not to follow the parties’ plea agreement, ultimately imposing consecutive life sentences with a mandatory minimum term of 25 years’ imprisonment on each count. On appeal, tire defendant argued that the State violated the plea agreement by effectively arguing against concurrent sentences. As support for his argument, the defendant focused on the prosecutor’s cross-examination of the clinical psychologist and the prosecutor’s subsequent comment that the defendant “ ‘perpetuated through his own daughter exactly what [the clinical psychologist] has diagnosed the defendant with, which is she’s going to have difficulty in her future.’ ” Antrim,
“Consistent with the рlea agreement, the prosecutor cross-examined the expert and argued against the expert’s conclusions. Moreover, the court specifically requested that the prosecutor combine his argument against the motion for departure with the State’s recommended disposition, and the defendant did not object to this procedure.
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“[T]he plea agreement at issue here required the State to recommend concurrent sentences, and the prosecutor explicitly twice made that recommendation. But the agreement also indicated that tire State would oppose any attempt by [the defendant] to seek an alternative sentence, and the prosecutor acted in accordance with that agreement by opposing [the defendant’s] motion for a departure from the mandatory minimum sentence оf Jessica’s Law. Under these circumstances, we conclude the State did not breach tire plea agreement.” Antrim,294 Kan. at 635-36 .
Crawford, Johnson, and Antrim establish that when the terms of a plea agreement require a prosecutor to make a sentencing recommendation but otherwise allow the prosecutor to discuss relevant information at sentencing (e.g., facts regarding the convictions or application of sentencing factors) or to argue against the defendant’s request to receive a lesser sentence than what was agreed to in the plea agreement, then tire prosecutor’s statements at sentencing addressing the relevant information or opposing the lesser sentence will likely be viewed as proper comments and not as effectively undermining the sentencing recommendation.
Similarly, prior cases indicate that comments will likely not be construed as undermining the recommended sentence if they are made in response to defense counsel’s attempt at sentencing to portray the defendant in a favorable light. In Woodward, the defendant agreed to plead guilty to kidnapping, two counts of sexual exploitation of a child, rape, indecent liberties with a minor, and felony murder. In exchange, the State agreed to recommend that concurrent sentences be imposed for all the convictions, other than felony murder, resulting in a controlling sentence of life. For the felony-murder conviction, the State would recommend a consecutive sentence of 10 years to life. Woodward,
At sentencing, defense counsel spoke first, describing her client in a favorable manner and indicating that tire victims’ families had been consulted about the sentence recommendation and had agreed to it. Defense counsel asked the district court to follow the plea agreement but also asked that the court make provisions so the defendant could get treatment. After defense counsel finished, the defendant’s wife spoke, also describing the defendant in a favorable manner. The prosecutor then made her statement to the court, asldng that the court impose the parties’ recommended sentence. Notably, the prosecutor also made comments in response to defense counsel’s statements. This court provided a summaiy of the prosecutor’s comments:
“The prosecutor commenced by clarifying that the sentencing recommendation wasthat of the district attorney’s office, not that of the victims. The prosecutor then reminded the judge, who had also presided at trial, of die heinous nature of die offenses and the losses suffered by the victims’ families. She referenced the [defendant’s] diagnosis of pedophilia and opined that ‘die help that can be best afforded to [the defendant] is to make him not dangerous to die community and not dangerous to himself by incarcerating him.’ The prosecutor pointed to facts that called into question the defense statements that [die defendant] was a ‘good father.’ She described circumstances that refuted the assertion that the killing was accidental, such as [the defendant’s] failing to call for emergency help, throwing the child’s body in a ditch, and hiding the homicide for 5 years. She argued that [die defendant’s position as] a law enforcement officer actually made the circumstances more egregious because of the trust diat position should engender.” Woodward, 288 Kan. at 302 .
Ultimately, the district court declined to impose the recommended sentence and instеad imposed a controlling sentence of life plus a consecutive sentence of 30 years to life.
On appeal, tire defendant argued that tire prosecutor, by making the negative comments described above, effectively undermined the sentencing recommendation. This court rejected the defendant’s argument, noting that when the context of tire entire sentencing hearing was considered, it was clear that the prosecutor’s arguments were
“directly tailored to address the defense’s attempt to cast [the defendant] in a favorable light. The plea-bargained recommended sentence was not the minimum which the court could impose. If the sentencing court had found the defense’s proffered mitigation to be compelling, it was not precluded from doing something less than recommended, such as running all of the convictions concurrently. [Citаtion omitted.] In that context, the State was free to argue why the recommended sentence was also the most appropriate sentence to impose under the circumstances. The plea agreement did not require the prosecutor to ignore the defense’s attempts to minimize [the defendant’s] culpability.
“Accordingly, we find that the prosecutor made an unequivocal recommendation that the sentencing court impose a sentence of life plus 10 years to life, as provided in the plea agreement. Nothing the prosecutor said at the sentencing hearing was intended to undermine the State’s recommendation or to suggest that the sentencing court impose a harsher sentence.” Woodward,288 Kan. at 302-03 .
Notably, Woodward’s reasoning (i.e., statements made in response to defense counsel’s attempt to cast the defendant in a favorable light will not be construеd as undermining the recommended sentence) provided an additional basis in Antrim for this court to conclude that the statements at issue in that case were proper. See Antrim,
Further, based on the Court of Appeals decision in Foster and this court’s decision in Antrim, the level of discretion the district court has to impose the recommended sentence is a factor to consider when deciding whether a prosecutor effectively argued against the recommended sentence at sentencing. In Foster, the defendant pleaded guilty to aggravated assault, a severity lеvel 7 person felony, in exchange for the State’s promise to recommend probation if the defendant’s criminal history score was, at the most, a C. Ultimately, it was determined that the defendant had a criminal history score of C, placing him in a presumptive probation box. But, because the defendant used a handgun to commit the aggravated assault, K.S.A. 21-4704(h) provided that the defendant could only receive probation if the district court specifically found that probation would serve community safety interests by promoting the defendant’s reformation.
At sentencing, the prosecutor commented first. Although the prosecutor recommended probation, she provided generally negative information about the defendant, and she never suggested that the district court could make the findings required to grant probation. Ultimately, the district court declined to place the defendant on probation and instead imposed a prison sentence of 27 months.
On appeal, the Court of Appeals concluded that the prosecutor’s comments undermined her sentencing recommendation and, thus, violated the plea agreement. The court stated:
“[The] prosecutor said that she recommended probation, but the words she used [at sentencing] do not meet the minimum requirements for a recommendation. Recommend means ‘to praise or commend (one) to another as being worthy or desirable,’ or ‘to make (the possessor, as of an attribute) attractive or acceptable.’ American Heritage Dictionary 1460 (4th ed. 2000). The prosecutor here did not state anything that would cause an objective person to conclude that probation was worthy, desirable, attractive, or even acceptаble.
“A prosecutor does not need to be enthusiastic in making the recommendation agreed upon in the plea bargain. [Citation omitted.] But the prosecutor must at least make the recommendation, and the prosecutor may not so undermine the recommendation that only lip service has been paid to it. In our case, the recommendation of probation was meaningless unless the trial court could malee the finding required by statute that community safety interests would be promoted through offender reformation if [foe defendant] were placed on probation. The prosecutor never said that such a finding would be proper in [foe defendant’s] case and provided information that appears to foe contrary. That breaches foe plea agreement.” Foster,39 Kan. App. 2d at 386-87 .
The Foster panel made clear that its decision should not be construed as precluding a prosecutor from presenting negative information about a defendant at sentencing even if the prosecutor promised to make a sentencing recommendation pursuant to a plea agreement. If the information is relevant to decisions the district court must make, then the information should be presented at sentencing. To illustrate this point, the panel noted that the prosecutor in its case properly requested a no-contact order at sentencing and presented information to support granting that order. But the panel noted that because this information could indicate that placing the defendant on probation would not serve community safety interests (leading the court to reject the recommended sentence), the prosecutor had a duty to provide the district court with some rationale to support placing tire defendant on probation. Because the prosecutor did not even attempt to do this at sentencing, the Foster panel concluded that her statements at sentencing undermined her sentencing recommendation and, thus, violated the plea agreement. Foster,
In State v. Antrim,
Under tire plea agreement in this case, tire prosecutor agreed to recommend at sentencing that the district court impose a standard sentence for the base offense (aggravated robbery) and impose concurrent sentences for Urista’s otirer crimes, resulting in a controlling sentence of 102 months’ imprisonment. Furthermore, both parties agreed not to seek a disposition and/or durational departure sentence.
Clearly, the terms of the plea agreement show that the State did not negotiate away its right to speak at die sentencing hearing. Contra State v. Peterson,
But the comments at issue in this case do not constitute a mere factual description of the crimes or a summary of the victims’ statements. Instead, the comments at issue here were an example of the prosecutor giving her personal opinion regarding Urista based upon her prior involvement with him, her review of the facts, and the victims’ statements. In other words, the prosecutor not only engaged in providing a negative editorial, but a particularly grave summation regarding Urista based on these observations. Such comments can be viewed as effectively arguing against the parties’ recommended sentence. See Johnson,
Furthermore, the prosecutor’s statements were not made in response to arguments presented by the defense; the prosecutor spoke first at sentencing. Thus, this case is distinguishable from Antrim and State v. Woodward,
Though the district court had the discretion to impose the recommended sentence based purely on the partes’ recommendations at sentencing, see K.S.A. 21-4720(b), we find that the prosecutor’s comments about Urista effectively undermined the sentencing recommendation. The prosecutor’s comments certainly did not provide any support for imposing concurrent sentences. In fact, they implicitly convey to an objective person that the recommended sentence may not be adequate punishment for Urista’s crimes. Furthermore, we cannot imagine any substantive difference between the comments the prosecutor made here (supposedly in support of the recommended sentence) and comments that would be explicitly made in support of imposing a sentence greater than the recommended sentence. Because tire prosecutor’s comments were unprovoked and unnecessary, one would have to assume that
As mentioned above, when a plea agreеment is breached, the defendant is denied due process. McDonald,
The only consideration that the Stаte offered in exchange for Urista’s agreement to (inter no contest pleas to 15 crimes (including three counts of aggravated robbery) was its promise to recommend concurrent sentences, resulting in a controlling term of 102 months’ imprisonment. Needless to say, the State’s promise to recommend concurrent sentences played a significant role in Urista’s decision to enter into the plea agreement. Because this central promise of the plea agreement was breached by the prosecutor’s comments at sentencing—and Urista raised a timely objection at sentencing regarding the comments—we find that the breach cannot be declared harmless. The appropriate remedy—specific performance, as requested by Urista—is to vacate the sentence and remand for a new sentencing hearing before a different district court judge with directions that the State comply with the precisions of plea agreement at sentencing. See Peterson,
Because we vacate Urista’s sentence and remand for a new sentencing hearing, we do not address the other issues (related to sentencing) that he raises on appeal. See, e.g., State v. Montgomery,
We reverse die judgments of the Court of Appeals and the district court. The sentence entered is vacated, and the case is remanded for a new sentencing hearing before a different judge with directions that the State comply with tire provisions of the plea agreement.