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No. 98-393
IN THE SUPREME COURT OF THE STATE OF MONTANA
1999 MT 220
296 Mont. 19
986 P.2d 424
STATE OF MONTANA,
Plaintiff and Respondent,
v.
WILLIAM LESTER RARDON,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Ted O. Lympus, Judge presiding.
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COUNSEL OF RECORD:
For Appellant:
David M. Ortley, Attorney at Law; Kalispell, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; JenniferAnders,
Assistant Attorney General; Helena, Montana
Thomas J. Esch, Flathead County Attorney; Ed Corrigan,
Deputy County Attorney; Kalispell, Montana
Submitted on Briefs: April 1, 1999
Decided: September 22, 1999
Filed:
__________________________________________
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Clerk
Justice Jim Regnier delivered the opinion of the Court.
1. ¶William Lester Rardon appeals from the Judgment and Sentence entered by the
Eleventh Judicial District Court, Flathead County, sentencing him to 75 years at the
Montana State Prison with 15 years suspended. In addition, the District Court
declared Rardon ineligible for parole for 35 years and until completion of all phases
of the Sex Offender Treatment Program.
2. ¶The dispositive issues on appeal are whether the State breached the terms of the
plea agreement and, if so, whether Rardon is entitled to be resentenced by a
different judge. We reverse and remand.
FACTUAL AND PROCEDURAL BACKGROUND
1. ¶On March 18, 1997, the State of Montana charged Rardon by Information with
committing one count of sexual intercourse without consent in violation of § 45-5-
503(1), MCA, and two counts of sexual assault in violation of § 45-5-502, MCA.
These charges stemmed from allegations of Rardon's sexual molestation of his two
minor daughters. At his arraignment, Rardon pled not guilty to the charges and a
trial date was set.
2. ¶On May 19, 1997, Rardon signed a written acknowledgment of his rights and
entered into a written plea agreement with the State. Rardon agreed to plead guilty
to one count of sexual assault in exchange for dismissal of the charge of sexual
intercourse without consent and the other charge of sexual assault. In addition, the
State agreed to recommend "a sentence in conformity with whatever
recommendation may result from the Sexual Offender Amenability Evaluation and
Pre-Sentence Investigation to be performed in this case prior to sentencing."
3. ¶On June 12, 1997, Rardon appeared before the District Court for the purpose of
changing his plea to guilty with respect to one count of sexual assault. After the
District Court advised Rardon of his rights and the consequences of pleading guilty,
it accepted Rardon's guilty plea and ordered a Presentence Investigation Report and
a Sex Offender Evaluation. Upon the State's motion, the District Court dismissed the
remaining counts of the Information and set a date for sentencing.
4. ¶The Sexual Offender Treatment Amenability Evaluation was prepared on August
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4, 1997, by the director of the Northwest Family Recovery Program and submitted
to the District Court. This evaluation recommended, inter alia, that Rardon be
accepted, on a probationary status, into an outpatient treatment program, without
any term of years, to be completed in Great Falls according to the treatment
standards of the Montana Sex Offender Treatment Association.
5. ¶The probation and parole officer, who prepared the presentence investigation report
dated October 30, 1997, recommended that Rardon receive a 40-year Montana State
Prison sentence with 20 years suspended. The officer further recommended that
Rardon not be eligible for parole until Rardon completes all available phases of the
Sex Offender Treatment Program at the Montana State Prison.
6. ¶At the December 4, 1997, sentencing hearing, the State recommended that the
District Court impose a sentence of 70 years with no eligibility for parole until
Rardon completes the Sex Offender Treatment Program, but for at least 30 years. In
his opening remarks, Rardon's counsel referred the District Court to the plea
agreement and objected to the State's recommendation on the basis that it violated
the plea agreement. The State responded to the objection by stating that since the
Presentence Investigation Report recommended a lengthy prison term and the Sex
Offender Amenability Evaluation recommended probation and an outpatient
treatment program, any recommendation was at its discretion. The State went on to
claim that it did not feel the lengthy prison term recommended in the Presentence
Investigation Report was sufficient and that the plea agreement did not bind the
State to a specific term of years.
7. ¶After considering the evidence presented at the sentencing hearing, the
recommendations of counsel, and the information set forth in the Presentence
Investigation Report and the Sex Offender Treatment Amenability Evaluation, the
District Court rendered its judgment and sentence. The District Court also pointed
out that Rardon had acknowledged that the court was not bound by the plea
agreement and that the court had noted its contemplated sentence prior to the State's
recommendation. The District Court ultimately sentenced Rardon to the Montana
State Prison for 75 years with 15 years suspended. The District Court also imposed,
inter alia, a restriction of no eligibility for parole for 35 years and until successful
completion of all phases of the sexual offender treatment program at the Montana
State Prison. Rardon appeals.
DISCUSSION
1. ¶Did the State breach the terms of the written plea agreement entered into with
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Rardon when it recommended a sentence not in conformity with the Sexual
Offender Treatment Amenability Evaluation or the Presentence Investigation Report
and, if so, is Rardon entitled to be resentenced by a different judge?
2. ¶ The standard of review of discretionary trial court rulings in criminal cases is
whether the trial court abused its discretion. State v. Sullivan (1994), 266 Mont. 313,
324, 880 P.2d 829, 836.
3. ¶Rardon contends that an essential and material inducement to his agreement to
waive his various statutory and constitutional rights was the State's agreement to
recommend a sentence in conformity with whatever recommendation may result
from the Sexual Offender Amenability Evaluation and Presentence Investigation.
Rardon argues that the State's non-conforming recommendation was in violation of
its promise and obligation under the terms of the plea agreement, entitling him to
specific performance of the plea agreement and re-sentencing by a different judge or
in the alternative, withdrawal of his guilty plea.
4. ¶There are two remedies available to a defendant for the government's breach of a
plea agreement in connection with sentencing: "the withdrawal of a guilty plea or
specific performance of the plea agreement." State v. Persak (1993), 256 Mont. 404,
407, 847 P.2d 280, 281 (citing Santobello v. New York (1971), 404 U.S. 257, 263,
92 S. Ct. 495, 499, 30 L. Ed. 2d 427, 433). "The law is clear that the choice of
remedy for a breach of a plea agreement is within the sound discretion of the trial
court." Persak, 256 Mont. at 407, 847 P.2d at 281-82 (citations omitted).
Specific performance entitles a defendant to a resentencing by a different judge in
accordance with the plea agreement. At the new sentencing hearing, the prosecution must
perform the promise it made in the plea agreement. This remedy of specific performance
is an alternative remedy to allowing defendant to withdraw his guilty plea.
Persak, 256 Mont. at 407, 847 P.2d at 281-82 (citations omitted).
1. ¶We have recognized that "a plea agreement presupposes fundamental fairness in
the securing of the agreement between the defendant and the prosecutor . . . ." State
v. Schoonover, 1999 MT 7, ¶ 12, 973 P.2d 230, ¶ 12, 56 St. Rep. 30, ¶ 12. "[C]
onsequently, we have held that prosecutors--as well as--defendants are bound by the
plea agreements they make." Schoonover, ¶ 12 (citing State v. Bowley (1997), 282
Mont. 298, 310, 938 P.2d 592, 599).
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This phase of the process of criminal justice, and the adjudicative element inherent in
accepting a plea of guilty, must be attended by safeguards to insure the defendant what is
reasonably due in the circumstances. Those circumstances will vary, but a constant factor
is that when 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.
Prosecutors who engage in plea bargaining must meet strict and meticulous standards of
both promise and performance as a plea of guilty resting in any significant degree on an
unfulfilled plea bargain is involuntary and subject to vacation. Prosecutorial violations,
even if made inadvertently or in good faith to obtain a just and mutually desired end, are
unacceptable.
Bowley, 282 Mont. at 310-11, 938 P.2d at 599 (citations omitted).
1. ¶Rardon argues, the State concedes and we agree that the prosecutor did not strictly
abide by the plea agreement. The plea agreement obligated the State to "recommend
to the Court a sentence in conformity with whatever recommendation may result
from the Sexual Offender Amenability Evaluation and Pre-Sentence
Investigation . . . ."
2. ¶The Sexual Offender Amenability Evaluation recommended that Rardon be placed
on probation and accepted into an outpatient treatment program in Great Falls. The
Pre-Sentence Investigation Report recommended that Rardon be incarcerated in the
Montana State Prison for a term of 40 years with 20 years suspended and no
eligibility for parole until successful completion of all available phases of the Sex
Offender Treatment Program at the prison. The State recommended incarceration at
the Montana State Prison for 70 years and ineligibility for parole until completion of
the Sex Offender Treatment Program at the prison, but not before a term of at least
30 years.
3. ¶As set forth above, the record is clear that despite its contractual promise to make a
sentencing recommendation in conformity "with whatever recommendation may
result from the Sexual Offender Amenability Evaluation and Pre-Sentence
Investigation" the State recommended a sentence far different from that contained in
either the Sexual Offender Amenability Evaluation or the Presentence Investigation
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Report. We conclude that the State breached the plea agreement entered into with
Rardon. Therefore, we hold that the District Court abused its discretion when it
failed to require the State to abide by the terms of the plea agreement.
4. ¶Reversed and remanded. In accordance with our discussion in State v. Persak, it is
within the sound discretion of the trial judge to determine the appropriate remedy
for the prosecution's breach of a plea agreement. The trial judge may either allow
the defendant to withdraw his guilty plea or, in the alternative, require specific
performance of the plea agreement and order that a new sentencing hearing be
conducted before a different judge.
/S/ JIM REGNIER
We Concur:
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ TERRY N. TRIEWEILER
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