State v. Rardon

No. 00-431

IN THE SUPREME COURT OF THE STATE OF MONTANA

2002 MT 345

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 Katherine Curtis, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Chad Wright, Appellate Defenders’ Office, Helena, Montana

For Respondent:

Mike McGrath, Montana Attorney General, Pamela D. Bucy,
Assistant Montana Attorney General, Helena, Montana; Thomas
Esch, Flathead County Attorney, Kalispell, Montana

Submitted on Briefs: April 4, 2002

Decided: December 30, 2002
Filed:

__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 This is the second appeal by William Lester Rardon (Rardon) from the sentence imposed by

the Eleventh Judicial District Court. 1 We reverse and remand.

ISSUES

¶2 The issue before this Court is whether the prosecutor breached the plea agreement when he

elicited testimony allegedly undercutting the plea agreement and expressed his opinion that the only

option for this type of crime was a long prison term.

¶3 Rardon asks us in the alternative, to determine whether defense counsel provided ineffective

assistance when he: 1) failed to object to the prosecutor's alleged breaches of the plea agreement;

and 2) recommended a sentence in excess of the plea bargained sentence recommended by the

prosecutor.

FACTUAL AND PROCEDURAL BACKGROUND

¶4 The abbreviated facts in this case are as follows:

¶5 Rardon was charged with sexual intercourse without consent and sexual assault against his

two minor daughters. He pled not guilty to the charges. Rardon subsequently entered into a written

plea agreement with the State in which he agreed to plead guilty to one count of sexual assault in

exchange for dismissal of the other charges. In return, the State agreed to recommend "a sentence in

conformity with whatever recommendation may result from the Sexual Offender Amenability

1
A complete factual background applicable to the case at bar is presented in State v.
Rardon, 1999 MT 220, 296 Mont. 19, 986 P.2d 424 ("Rardon I") and will not be repeated in
detail in this Opinion.

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Evaluation and Pre-Sentence Investigation [PSI] to be performed in this case prior to sentencing."

The District Court accepted Rardon's guilty plea, ordered a PSI and a Sex Offender Evaluation and

dismissed the remaining counts.

¶6 The Sexual Offender Treatment Amenability 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. The PSI Report (Report), on the other hand, recommended that

Rardon receive a 40-year Montana State Prison (MSP) sentence with 20 years suspended. The

Report further recommended that Rardon not be eligible for parole prior to completing all available

phases of the Sex Offender Treatment Program (SOTP) at MSP.

¶7 At Rardon's first sentencing hearing in December 1997, the State, contrary to the plea

agreement, recommended a sentence of 70 years with no eligibility for parole for at least 30 years,

and in no event before he completed the SOTP. Rardon's counsel objected to the State's

recommendation on the basis that it violated the plea agreement. The State responded to the

objection by stating that the disparity between the sentences recommended in the PSI Report and the

Sex Offender Amenability Evaluation allowed it discretion in its recommendation.

¶8 The District Court sentenced Rardon to MSP for 75 years with 15 years suspended and

required that Rardon serve at least 35 years and successfully complete all phases of the SOTP at

MSP before being eligible for parole.

¶9 Rardon appealed the sentence and this Court reversed the District Court concluding that the

State had breached the plea agreement and that the District Court had abused its discretion when it

failed to require the State to abide by the terms of the agreement. We remanded with instruction that

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the District Court either allow Rardon to withdraw his guilty plea or, in the alternative, require

specific performance of the plea agreement. We also instructed the District Court to order that a

new sentencing hearing be conducted before a different judge. Rardon chose to have the plea

agreement specifically performed.

¶10 In March 2000, a second sentencing hearing was held before the Honorable Katherine R.

Curtis. The same County Attorney involved in the original Rardon proceeding represented the State.

Rardon was represented by a court-appointed attorney. As it had in the first sentencing hearing, the

State called Rardon's daughters and Rardon's estranged wife to the stand where they expressed, once

again, their fear of Rardon and their desire that he be incarcerated for the rest of his life. While the

State's attorney opined that Rardon deserved a lengthy sentence, he ultimately and in accordance

with the plea agreement recommended that Rardon be sentenced to 40 years at MSP with 20

suspended, subject to conditions. These proceedings are described in greater detail below.

¶11 During presentation of the State's case on sentencing, Rardon's attorney did not object to any

of the adverse testimony nor did he cross-examine any of the witnesses, explaining that Rardon

wanted to spare them any further harm. When Rardon took the stand at his sentencing hearing, both

his attorney and the State's attorney questioned him regarding his satisfaction with his court-

appointed attorney's representation. Rardon indicated that he was satisfied with his representation,

that he had requested that no witnesses be called on his behalf and that he believed he and his

attorney had adequate time to prepare for the hearing. Rardon also testified that he agreed with the

sentence recommendation that his attorney was going to make to the District Court. Subsequently,

Rardon's attorney, in accordance with Rardon's request, recommended that Rardon receive a 40-year

sentence in MSP, with no time suspended.

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¶12 The District Court did not accept either the State's or Rardon's recommendation but imposed

a sentence of 75 years in MSP with 25 suspended, and provided that Rardon would not be eligible

for parole until he had served at least one-half of the non-suspended sentence and completed all

phases of MSP's SOTP.

¶13 Immediately after the District Court's Judgment and Sentence was entered, Rardon's court-

appointed attorney filed a Notice of Termination of Attorney/Client Relationship. The District

Court subsequently appointed another attorney for Rardon so that Rardon could pursue this appeal.

STANDARD OF REVIEW

¶14 In Rardon I, we utilized the "abuse of discretion" standard when reviewing a claim that the

State had breached the plea agreement, stating, "The standard of review of discretionary trial court

rulings in criminal cases is whether the trial court abused its discretion." Rardon I (citing State v.

Sullivan (1994), 266 Mont. 313, 324, 880 P.2d 829, 836). In Rardon I, however, Rardon's counsel

objected to the prosecutor's sentence recommendation, claiming that it breached the plea agreement.

On appeal, this Court concluded that the prosecutor had breached the agreement and the District

Court had abused its discretion when it failed to require the State to abide by the agreement.

¶15 In the present case, Rardon's counsel did not object to the prosecutor's presentation of the

State's case. Therefore, we are not reviewing any action or failure to act by the District Court.

Because we are not reviewing an alleged error by the court, but rather an allegation of prosecutorial

error, we must review the prosecutor's conduct in the context of the entire proceeding. Rardon's

counsel seeks a de novo review which we conclude is the appropriate standard under these

circumstances. Such review is supported by applicable Ninth Circuit cases. See U.S. v. Johnson

(9th Cir. 1999) 187 F.3d 1129, 1134 and U.S. v. Schuman (9th Cir. 1997), 127 F.3d 815, 817.

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 DISCUSSION

¶16 The State argues that because Rardon failed to object to the prosecutor's alleged breach of the

plea agreement during the sentencing hearing, he is procedurally barred from pursuing this appeal.

While we agree that this Court regularly holds that issues raised for the first time on appeal will not

be considered, this Court may still review claimed errors that implicate fundamental constitutional

rights, when failing to do so "may leave unsettled the question of the fundamental fairness of the

trial or proceedings, . . . ." State v. Finley (1996), 276 Mont. 126, 137, 915 P.2d 208, 215, overruled

in part on other grounds by State v. Gallagher, 2001 MT 39, 304 Mont. 215, 19 P.3d 817. See also

U.S. v. McQueen (4th Cir. 1997), 108 F.3d 64. In McQueen, the defendant failed to challenge the

prosecutor's alleged breach of the plea agreement during the sentencing hearing. The State

subsequently admitted breaching the agreement but the Fourth Circuit had to decide whether to hear

the case because McQueen had not preserved the issue for appeal. The Court concluded that it

should review that case under the "plain error" doctrine. It stated:

Because a defendant's fundamental and constitutional rights are implicated when he
is induced to plead guilty by reason of a plea agreement, our analysis of the plea
agreement or a breach thereof is conducted with greater scrutiny than in a
commercial contract (citation omitted). When reviewing a breached plea agreement
for plain error, therefore, we must establish whether the breach was "so obvious and
substantial that failure to notice and correct it affected the fairness, integrity or public
reputation of the judicial proceedings" (citation omitted).

McQueen, 108 F.3d at 66.

¶17 In this case, we must determine whether the prosecutor breached the plea agreement which,

in turn, may have tainted or "affected the fairness of" the sentencing proceeding. We also note we

are presented here with a unique set of facts, given that this is the second time that we have been

called upon to assess the prosecutor's performance of the plea agreement negotiated between the

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State and Rardon.

¶18 This Court has addressed the enforceability of plea agreements on several occasions and has

repeatedly held that a plea agreement is a contract between the State and a defendant and is subject

to contract law standards. State v. Munoz, 2001 MT 85, ¶ 14, 305 Mont. 139, ¶ 14, 23 P.3d 922 ¶ 14.

"No principle of fairness or contract law allows the State to retain the benefit of its agreement and

avoid its obligation." State v. Bowley (1997), 282 Mont. 298, 314, 938 P.2d 592, 601 (Trieweiler, J.,

specially concurring). Indeed, we have emphasized that prosecutors "must meet strict and

meticulous standards of both promise and performance" relating to plea agreements, because a guilty

plea resting on an unfulfilled promise in a plea bargain is involuntary and "[p]rosecutorial violations,

even if made inadvertently or in good faith to obtain a just and mutually desired end, are

unacceptable." State v. LaMere (1995), 272 Mont. 355, 359, 900 P.2d 926, 929. See also State v.

Schoonover, 1999 MT 7, 293 Mont. 54, 973 P.2d 230 and Bowley, 282 Mont. 298, 938 P.2d 592.

¶19 In the case before us, the prosecutor did give lip service to the letter of the plea agreement--

he recommended that the District Court impose the sentence recommended in the PSI. However,

during the presentation of the State's case, he solicited inflammatory testimony from the victims as

to the length of sentence to be recommended under the plea agreement. In one such instance, he

specifically asked a witness what she thought of the sentencing recommendation he was going to

make to the court after explaining to her that if the recommendation was accepted, Rardon could be

eligible for parole as early as 2003. The witness, not surprisingly, opposed the agreed-upon

recommended sentence. With another witness and victim, the prosecutor observed, "You want to

have a chance to live and raise your [one and one-half year and four-month old] kids without having

to look over your shoulder and . . . . And knowing he's in prison is gonna go a long ways toward

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making you feel safe." The witness strongly agreed, volunteering that she wanted the original but

reversed sentence of seventy-five years to be reinstated so that she would "have time to raise my

kids on my own, . . ., knowing I can send them to school without having to worry about 'Are they

gonna come home off the bus?'" Then, during his questioning of Rardon, he attempted to solicit

agreement from Rardon that Rardon should be imprisoned until Rardon's grandchildren were grown.

¶20 Lastly, during summation, the prosecutor preceded his sentence recommendation by

reiterating and emphasizing the negative aspects of Rardon's sexual offender evaluation, including

the observation that Rardon's "resentment may mount into acts of brutal hostility. And as he himself

has acknowledged, when he's drinking, using drugs, he is a miserable SOB." He also repeated for

the court the Report's recognition that "a long-term prison sentence at least over his head" would be

a "motivator" toward Rardon's rehabilitation. Having done all these things, the prosecutor then

recommended that Rardon be sentenced to 40 years with 20 suspended, in accordance with the plea

agreement.

¶21 There are no hard and fast criteria that define when a prosecutor has merely paid "lip service"

to a plea agreement as opposed to when a prosecutor has fairly, but strongly, presented the State's

case in order to influence a court to accept its sentencing recommendation. Each case stands or falls

on the facts unique to it. In LaMere, 272 Mont. 355, 900 P.2d 926, the prosecutor, as in the case at

bar, also recommended the sentence agreed upon in the plea agreement, but on his way to the

recommendation he emphasized LaMere's less desirable characteristics, i.e., he spends most of his

time drinking or bragging about drinking, he never finishes anything including school and jobs, and

he does not want treatment for his alcohol and drug abuse problems. The prosecutor then, in a

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bizarre juxtaposition, recommended a deferred sentence subject to certain conditions. The

sentencing court, after reiterating LaMere's previously-described character flaws, rejected the plea

agreement sentencing recommendation and imposed a much harsher sentence. This Court reversed

and remanded for resentencing after concluding that the prosecutor's actions failed to "meet the strict

and meticulous standards of performance of the plea agreement." LaMere, 272 Mont. at 360, 900

P.2d at 929.

¶22 Under the facts of this case, we conclude that the prosecutor's fervor in soliciting and

offering evidence that would almost undoubtedly cause the court to question the appropriateness of

the recommended sentence effectively undercut the plea agreement. While we agree it is completely

appropriate for the prosecutor to question victims and solicit their testimony at a sentencing hearing

and for those victims to express their fears and feelings, it is not acceptable for a prosecutor to

aggressively solicit testimony that is clearly intended to undermine the plea agreement and to

convince the sentencing court that a plea bargained sentence recommendation should not be

accepted. See State v. Van Buren (Wash. App. Div. 2 2002) 49 P.3d 966 (Prosecutor need not make

the recommendation enthusiastically but must act in good faith and must not undercut the plea

agreement explicitly or by conduct evidencing an intent to circumvent the agreement's terms

(citations omitted)); State v. Sledge (Wash. 1997), 947 P.2d 1199 (Although the prosecutor adhered

to the recommended disposition from the plea agreement, in a requested disposition hearing she

called and vigorously examined witnesses on aggravating factors supporting an exceptional

disposition based on manifest injustice. She then gave a summation detailing the aggravating

factors.). See also Matter of Palodichuk (Wash. App. 1978), 589 P.2d 269 (Prosecutor technically

adhered to the terms of the agreement by recommending probation as promised, but by expressing

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sentence reservations he tainted the sentencing process so that a breach occurred).

¶23 While the State does not claim that the prosecutor did NOT breach the agreement, it argues

that because the District Court was not bound to accept the recommendations of either party, the PSI

or SOE, this Court should not "second-guess" the sentence imposed by Judge Curtis, which is quite

similar to the original sentence imposed by Judge Lympus. This suggestion, however, fails to

consider that both of the judges were subject to the prosecutor's breach of the agreement and

therefore both sentencing procedures were tainted. In Santobello v. New York (1971), 404 U.S. 257,

92 S.Ct. 495, 30 L.Ed.2d 427, the U. S. Supreme Court reversed and remanded a sentence after

concluding that a replacement prosecutor breached a plea agreement of which he was not a

participant, by recommending the maximum one-year sentence when his predecessor had agreed to

make no recommendation as to the defendant's sentence. As to the potential impact the breach had

on the sentencing judge, Chief Justice Burger stated:

We need not reach the question whether the sentencing judge would or would not
have been influenced had he known all the details of the negotiations for the plea.
He stated that the prosecutor's recommendation did not influence him and we have
no reason to doubt that. Nevertheless, we conclude that the interests of justice and
appropriate recognition of the duties of the prosecution in relation to promises made
in the negotiation of pleas of guilty will be best served by remanding the case to the
state courts for further consideration.

Santobello, 404 U.S. at 262-63, 92 S.Ct. at 499, 30 L.Ed.2d at 433.

¶24 The Eleventh Circuit Court of Appeals when faced with a similar argument that the

sentencing court "may not have considered the government's breaching statements when it

determined [defendant's] sentence," stated, "there is no indication that the court did not consider

those breaching statements when it determined, to [defendant's] detriment, that the PSI position on

relevant conduct was correct. Presumably the government attorney who made those statements

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thought that they might influence the judge, or else there would have been no point in making them.

Absent some reason in the record for second guessing that government attorney's evaluation of the

possible effect of his advocacy, we are unwilling to conclude that it had no effect." U.S. v. Taylor

(11th Cir. 1996), 77 F.3d 368, 371.

¶25 While we agree that the judge in this case had the statutory authority to impose the lengthy

sentence, we nonetheless conclude that the sentencing judge should have the benefit of making such

decision based on a good faith and fair presentation of the State's case. Based on the foregoing

authorities, we cannot simply let the prosecutor's overzealous presentation stand. Accordingly, we

must remand for resentencing. Having determined that this matter is to be remanded to the District

Court for resentencing, we need not address the claim of ineffective assistance of counsel.

CONCLUSION

¶26 We reverse and remand this matter to the District Court. In accordance with our previous

holding in Rardon I, it is within the sound discretion of the sentencing judge to determine the

appropriate remedy for the prosecution's breach of a plea agreement. The sentencing judge may

either allow Rardon to withdraw his guilty plea or, in the alternative, require specific performance of

the plea agreement and order that a new sentencing hearing, in which the State is represented by a

different prosecutor, be conducted before a different judge, in a manner consistent with this Opinion.

/S/ PATRICIA COTTER

We Concur:

/S/ TERRY N. TRIEWEILER
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON

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Justice Jim Rice dissenting.

¶27 I respectfully dissent. In this case and on this record, I would not invoke the doctrine

of plain error to reach the issues which were not preserved for appeal by the Defendant.

¶28 Two district court judges have conducted hearings in which statutory considerations for

sentencing have been fully developed and presented. The victims have twice testified about the

horrendous, long-term abuse perpetrated upon them by the Defendant. Similar, but not identical,

sentences have been imposed following the judges’ separate review of the evidence. Despite that,

the Court excuses the Defendant’s failure to preserve any issues for appeal and, invoking plain error,

requires the parties to engage in this difficult process a third time.

¶29 The Court would lay the blame for this result on the prosecutor. Although it acknowledges

that the prosecutor recommended a sentence in accordance with the plea agreement, the Court

nonetheless reaches the conclusion that the “the prosecutor’s fervor . . . would almost undoubtedly”

sway the sentencing court to impose a harsher sentence. I do not draw any such inference from a

reading of the entire record. Neither do I find that the prosecutor’s actions were as egregious

as the Court implies. The sentencing transcript reveals that the victims often volunteered

comments, based upon their knowledge of the earlier sentence, which were not prompted by

specific questions about the earlier sentence by the prosecutor.

¶30 It is not necessary to either fault or excuse defense counsel’s failure to contemporaneously

object to what the Defendant now finds objectionable about the sentencing. Rardon and his counsel

offered an atypical approach and presentation during the hearing. Refraining from confrontation

throughout, defense counsel went so far as to recommend a harsher sentence than that recommended

by the prosecutor. Such an unusual approach is not necessarily ineffective per se, but most certainly

would have an explanation. Defense counsel obviously had the benefit of the first sentencing

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hearing, and his approach may have been influenced thereby. The record on appeal, of course, does

not reflect the reasons behind defense counsel’s actions or inaction, or whether those decisions were

part of a sentencing strategy. I would hold, in accordance with our law, that Defendant’s issues

were not preserved for appeal, and that the Defendant’s objections to his counsel’s failure to

preserve those issues, or to his overall performance, may be pursued by way of a post-conviction

relief proceeding, where a proper inquiry may be made into the reasons for counsel’s approach.

¶31 I would affirm.

/S/ JIM RICE

Chief Justice Karla M. Gray joins in the dissent of Justice Rice.

/S/ KARLA M. GRAY

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