(dissenting)—In State v. Peterson, 97 Wn.2d 864, 651 P.2d 211 (1982), our Supreme Court stated at page 866:
We recognize that the consideration which induces a defendant to plead guilty is not the prospect of a formal recitation by the prosecutor of the sentencing recommendation, but the prospect that the recommendation will be made with some degree of advocacy. United States v. Brown, 500 F.2d 375 (4th Cir. 1974).
In the present case, the prosecuting attorney, when asked by the trial judge for his recommendation, stated:
Yes, Your Honor, this came as a plea bargain and upon defendant's plea of guilty to a charge of third degree assault. I agreed to recommend three years probation, no jail time, and make no recommendation with respect to any fine.
In United States v. Brown, 500 F.2d 375 (4th Cir. 1974), relied on by the Peterson court, the expectation regarding *314the prosecutor's sentencing recommendation was discussed:
This could reasonably be expected to be the sound advice, expressed with some degree of advocacy, of a government officer familiar both with the defendant and with his record and cognizant of his public duty as a prosecutor . . .
United States v. Brown, supra at 377.
The specific question of what constitutes "some degree of advocacy" has yet to be answered by our courts. However, the resolution of that question is not necessary to decide this case. I am reminded of Justice Potter Stewart's personal perception of obscenity—"I know it when I see it".1 Likewise, although I do not attempt to define what "some degree of advocacy" is, I know this is not it. Here, the prosecutor engaged in a formal recitation of the terms of the plea agreement. There was no degree of advocacy. For all practical purposes, the trial judge could have relied solely upon the statement of defendant on plea of guilty. See CrR 4.2(g). The prosecutor's "recommendation" added nothing to the hearing.
A defendant may plead guilty for many reasons. One may be to obtain the prosecutor's sentencing recommendation. Generally, to recommend is to counsel or advise.2 To give a bare recitation of the terms of a plea bargain fails to qualify as a recommendation. If the Supreme Court's advocacy mandate in Peterson is to have any meaning, then prosecutors must pay more than "lip service" to the requirement.
The majority concludes Mr. Peterson waived his rights to assert a breach of the plea bargain by requesting the prosecutor to explain his recommendation. This holding confuses the recommendation requirement with the defendant's request for an explanation.
A defendant is entitled to have the prosecutor make his recommendation to the trial court with "some degree of *315advocacy". State v. Peterson, supra. Advocacy is the act of pleading for, supporting, or recommending active espousal.3 A defendant is also entitled, under his right of allocution, to request an explanation by the prosecutor of the reasons underlying his recommendation. State v. Peterson, supra; State v. Happy, 94 Wn.2d 791, 620 P.2d 97 (1980). Thus, after the prosecutor has made his recommendation with some degree of advocacy, a defendant may choose to open up "Pandora's Box" and request a prosecutorial explanation of his recommendation.
In the present case, the prosecutor failed to make any recommendation. He merely said he agreed to make a recommendation. I recognize that had the prosecutor complied with Peterson, there may have been no need for Mr. Peterson to request an explanation. The fact a defendant, in attempting to mitigate the sentence he is about to receive, chooses to request an explanation, does not change the fact that the prosecutor has already undercut his position with literally no recommendation.
The entire sentencing hearing was tainted at the time the prosecutor merely recited the terms of the plea bargain. Regretfully, this matter should be remanded, again, for a proper hearing.
Jacobellis v. Ohio, 378 U.S. 184, 197, 12 L. Ed. 2d 793, 84 S. Ct. 1676 (1964) (Stewart, J., concurring).
Black's Law Dictionary (5th ed. 1979).
Gitlow v. New York, 268 U.S. 652, 69 L. Ed. 1138, 45 S. Ct. 625, 626 (1925).