State v. Smith

Six, J.,

dissenting: In my view, this criminal case concerns the trial court’s discretion in the enforcement of a plea agreement. Pursuant to K.S.A. 1987 Supp. 22-3602(b)(l), the State appeals the trial court’s dismissal of an information charging defendant Richard Smith with delivery of cocaine (K.S.A. 65-4127a).

The sole issue for our review should be: Did the trial court abuse its discretion in ruling that prosecution was barred by the terms of a prior plea agreement?

Following his arraignment, Smith filed a motion to dismiss, alleging that prosecution was barred by the terms of the prior plea agreement. The trial court agreed and dismissed the complaint.

The trial court ruled:

*289“[T]he language of the plea agreement in question here is so broad as to include the present case.
“The language of the agreement is strictly construed against the County Attorney’s Office.”

The trial court reasoned that the agreement was ambiguous and that the ambiguity was to be construed in favor of Smith.

When a plea bargain is ambiguous, the court may examine the entire record and, based upon the facts of the case, define and apply the ambiguous phrase or term. See State v. Talsma, 2 Kan. App. 2d 551, Syl. ¶¶ 1, 2, 584 P.2d 145 (1978).

At the hearing on Smith’s motion to dismiss the September cocaine charge, the trial court heard the testimony of Investigator Roger Williams and of Steven L. Opat, the Geary County Attorney.

Williams testified that he personally knew Richard Allen Smith prior to April 1987. Smith’s photograph appeared in mug books at the Junction City Police Department prior to that time. An undercover agent had access to these mug books upon request. The person described as “Smitty” in April of 1987 was later determined by the undercover agent to be Smith, the defendant. The undercover agent relayed the information about the drug buy and about “Smitty” to Williams in April of 1987. Williams stated that when a determination is made by the Junction City Police Department that legal recourse is necessary in a felony matter, the information is brought to the Geary County Attorney’s Office.

By dismissing the cocaine charge, the trial court determined that Smith was entitled to specific performance of the plea agreement. A plea.bargain, prior to the defendant’s acceptance, is a mere “executory agreement.” Mabry v. Johnson, 467 U.S. 504, 507, 81 L. Ed. 2d 437, 104 S. Ct. 2543 (1984).

Once the defendant accepts the agreement by pleading guilty, due process requires that the bargain be kept. Santobello v. New York, 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971). “[W]hen 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, 404 U.S. at 262.

The Santobello court suggested two possible remedies: (1) specific performance or (2) an opportunity to withdraw the plea. *290The choice is within the discretion of the trial court. Santohello v. New York, 404 U.S. at 263. The record in this case shows that the trial court selected the first option and ordered the Geary County Attorney’s Office to specifically perform. This choice bars the prosecution of Smith for delivery of cocaine.

The crux of this issue is whether the trial court abused its discretion by ruling that under the plea agreement the drug buy and Smith’s role in it were matters “which should be known” to the Geary County Attorney’s Office. The State drafted the subjective phrase “which should be known.” Any uncertainty in its meaning should bind against the State, not against Smith. The majority holds that the phrase in question is unambiguous. I disagree. What “should be known” to a prosecutor? Any number of criminal law experts could respond to this question, but would they agree? The majority: (1) views this case as one involving the interpretation of a written contract; and (2) construes the phrase against Smith rather than against the State, the author of the ambiguity.

Smith’s prosecution for delivery of cocaine relied on factual information which had been available to law enforcement agencies in Geary County prior to July 13, 1987. Nevertheless, the facts were not connected and put to use until the August 1987 identification by the undercover agent.

The majority opinion cites State v. Hammang, 19 Or. App. 265, 527 P.2d 137 (1974), affd 271 Or. 749, 534 P.2d 501 (1975). Hammang is a double jeopardy case. I draw upon it in support of two appellate propositions I view differently than the majority when applied to the case at bar: (1) factual determinations; and (2) scope of review. In Hammang the question was stated by the Oregon Court of Appeals to be: “Thus, our inquiry is directed to whether the prosecution knew or should have known of the facts relevant to the murder charge on August 3, 1973, the date defendant plead guilty to theft.” 19 Or. App. at 268.

The Hammang court then asks the question we in Kansas are interested in: “How is this ‘knowledge’ question to be resolved?” 19 Or. App. at 268.

Oregon answers the question:

“[T]he question of knowledge is one of fact. Being a question of fact initially passed upon by the trial court, it follows that the trial court must, if there is any factual dispute, hold an evidentiary hearing to determine the facts. And once the trial court has determined the factual question of prosecutorial knowledge, its *291finding should be subject to only limited review in this court under the doctrine of Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968).” 19 Or. App. at 269.

The trial judge in the case at bar held an evidentiary hearing. He listened to the testimony of Investigator Roger Williams and of the Geary County Attorney, Steven L. Opat.

The State urges this court to find that the trial court abused its discretion. “An abuse of discretion exists only when no reasonable man would take the view adopted by the trial court.” State v. Carmichael, 240 Kan. 149, 157, 727 P.2d 918 (1986) (citing. Wilson v. American Fidelity Ins. Co., 229 Kan. 416, 422, 625 P.2d 1117 [1981]). In my view the majority has substituted its judgment for the judgment of the trial court. Under the facts of Smith’s case, the trial court did not abuse its discretion by: (1) construing the agreement against the State; (2) ordering specific performance of the prior plea agreement; and (3) dismissing the cocaine charge against Smith. I would affirm the ruling of the trial court.

Herd and Allegrucci, JJ., join the foregoing dissenting opinion.