White v. United States

FERREN, Associate Judge:

This case presents one question: whether the government broke its agreement not to oppose a substantial suspended sentence and residential drug program for appellant, Clarence Paul White, in exchange for his agreement to plead guilty to charges of second-degree burglary and forgery. We answer in the affirmative, vacate appellant’s sentences, and remand for resentenc-ing by a different judge.

I.

On October 18, 1978, the government filed an information charging appellant with second-degree burglary, D.C.Code 1973, § 22-1801(b), and forgery, id, § 22-1401. Appellant agreed to plead guilty to both counts in exchange for the government’s promise not to oppose “a substantial suspended sentence in lieu of incarceration” and “a residential drug program.” The court accepted the agreement, and appellant entered his plea. Later, at sentencing, appellant’s counsel argued that the court should follow the recommendation of the presentence report by placing appellant in a highly structured drug program, such as Second Genesis, which had agreed to accept him. The court indicated a reluctance to follow the proposal:

*617My concern with that recommendation .. . stems from two facts:
First, he has been through the NARA [1] Program and returned to drug abuse;
Second, while in the Community, in work-release status, he was utilizing drugs. I am not confident that the Second Genesis Program can impede the use and abuse which consistently brings him here, in the Community setting.
Have you and your client considered that matter? If so, what are your representations?

Defense counsel replied that, although he could not promise appellant would resolve his drug problem at Second Genesis, this program was not loosely run, and appellant realized that if he did not follow through, he would probably get a maximum sentence for his crimes. Defense counsel concluded by saying that “the only way to give this man the benefit of the possibility would be to try to work under the assumption that he is serious about it. I think he is, and I would ask that Mr. White address the Court on that issue.”

Before hearing from appellant, the court asked the government if it had any representation to make. The prosecutor responded (and defense counsel objected) as follows:

[Prosecutor]: Yes, Your Honor. In view of the plea agreement, the Government does not oppose this drug rehabilitation program, if the Court so decided at sentence. However, the Government is concerned with what the Court said, that he has [gone] through so many programs. [Defense Counsel]: Your Honor, I object to this. I believe that, obviously, once the Court has made its sentence, the Government can do nothing. But I think the plea bargain was that the Government would not allocute against a drug program, and I think that is precisely what [the prosecutor] is doing.
[Prosecutor]: I’ll withdraw that, Your Honor. It appears in this case, that there was a great deal of checks taken, at a job where the defendant had authority, some trust. Now, it wasn’t one check that was passed, or two checks. There were a series of checks. These checks both went into the District of Columbia and Virginia. It was an ongoing scheme, some organization which would take into cognizance of a natural person, some reflection and some planning we feel that is more indicative, at least there was some criminal intent, specific criminal intent, even though that may have been caused by other factors. But it is one that should not be looked at just lightly, as being what may have been the factors that motivated him. In view of his age, in view of his knowledge of the criminal system, and his knowledge of the World situation. And that fact, I believe, the Court should take into consideration concerning what has been the continued activity of the defendant before the Bar at this time.

After hearing from appellant, who asked for the opportunity “to go to Second Genesis,” the court rejected that alternative and imposed concurrent prison sentences of three to nine years on each charge (to be served consecutively to any previously-imposed sentence).

Appellant then filed a pro se Motion to Reduce or Modify Sentence. See Super.Ct. Cr.R. 35(a). The court appointed the Public Defender Service (PDS) to represent him; PDS filed a Motion to Reduce Minimum Portion of Sentence. In this motion, PDS argued that the prosecutor’s statements at sentencing, although not explicitly asking for appellant’s incarceration, implicitly had suggested that the government favored incarceration and thus “violated the essence and spirit of the promise made by the United States Attorneys Office .... ” In responding to the motion, the government conceded that “a reading of the transcript raises the possibility that the Court could have read into the Assistant United States Attorney’s remarks a disapproval of the suspended sentence option.” The government added, however, that “[s]uch an infer*618ence is by no means compelled, and any suggestion of disapproval was at best ambiguous.” The government then argued that even if it had violated the plea agreement, the appropriate remedy would be withdrawal of the plea or resentencing before a different judge, not a reduction in sentence.

The trial court denied the motions to reduce sentence. Specifically addressing the issue of the government’s bargain, the court stated that the government had had a duty not to oppose a suspended sentence but had retained the right to allocute as to the length of the suspended sentence. The court concluded, “The factors cited by the Government were objectively relevant to the length of the suspended sentence and would appear to be consistent with its agreement.”

Appellant filed a pro se Motion to Vacate his sentence under D.C.Code 1973, § 23-110, specifically alleging the government’s breach of the plea agreement. The court denied the motion, whereupon appellant timely noted this appeal. See id. § 11-721(a)(1); D.C.App.R. 4 11(b)(1).

II.

The government has a duty to fulfill its promises in a plea bargain. The Supreme Court stated in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), 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.” Id. at 262, 92 S.Ct. at 499; accord, United States v. Bowler, 585 F.2d 851, 853 (7th Cir.1978); United States v. Crusco, 536 F.2d 21, 26 (3d Cir. 1976); United States v. Brown, 500 F.2d 375, 377 (4th Cir. 1974); Correale v. United States, 479 F.2d 944, 947 (1st Cir. 1973); see Braxton v. United States, D.C.App., 328 A.2d 385, 388 (1974). If the government violates its bargain, it is irrelevant that the government’s remarks may not have influenced the sentencing judge;2 the court must remand the case for resen-tencing or, in appropriate cases, to allow withdrawal of the defendant’s plea. Santobello, supra 404 U.S. at 262-63, 92 S.Ct. at 498-499; see Bowler, supra at 855-56; Crusco, supra at 26-27; Brown, supra at 377-78; United States v. Ewing, 480 F.2d 1141, 1143 (5th Cir. 1973) (per curiam); Correale, supra at 949-50. The only issue here, then, is whether the government violated its plea agreement. If it did, appellant’s sentence cannot stand.

In evaluating the prosecutor’s allo-cution in this case, it is important to note, first, that the government must meet a standard of strict compliance with its agreement. Bowler, supra at 853-54; Corr-éale, supra at 947; see Crusco, supra at 26; Brown, supra at 378. The court will construe any ambiguity against the government. State v. Witte, 308 Minn. 214, 216 & n.2, 245 N.W.2d 438, 439 & n.2 (1976) (en banc) (per curiam) (collecting cases); see State v. Kimes, 188 Neb. 85, 87, 195 N.W.2d 216, 218 (1972). Thus, in Crusco, supra, the court held that the government, in challenging defense representations at sentencing, had violated its agreement “not to take a position on sentencing." Id. at 25. In light of Santobello, supra, the court refused to construe the agreement narrowly to prohibit the government only from making a specific sentencing recommendation. See *619id. at 26. The court concluded: “We see the Government’s characterization [of the defendant as a major figure in organized crime] as a transparent effort to influence the severity of [the defendant’s] sentence. Only a stubbornly literal mind could refuse to regard the Government’s commentary as communicating a position on sentencing.” Id. at 26; see Bowler, supra at 855 (apparent failure to consider mitigating circumstances in recommending sentence violated plea agreement); Brown, supra at 377-78 (halfhearted presentation of agreed recommendation of three-year sentence violated plea agreement).

In the present case, the government did not directly violate its promise “not to oppose” a recommendation of “a substantial suspended sentence” and the placement of appellant in “a residential drug program.” In context, however, as in Crusco, supra, the government did not live up to its bargain. During the exchange between the court and defense counsel over the wisdom of putting appellant in a drug program instead of prison, the court stated it was “not confident that the Second Genesis Program can impede the use and abuse which consistently brings him here, in the Community setting.” The court then asked the Assistant United States Attorney if he wished to make a statement. The immediate response was: “Yes, Your Honor. In view of the plea agreement, the Government does not oppose this drug rehabilitation program, if the Court so decided at sentence. However, the Government is concerned with what the Court said, that he has [gone] through so many programs.”

The clear import of the prosecutor’s statement was that the government had the same concern as the court (/. e., that a drug rehabilitation program would fail), but that he could say no more because he was bound by the plea agreement. The statement implied that, but for the plea agreement, the government would be recommending a period of incarceration. Although the prosecutor formally withdrew his statement after defense counsel objected to it, that perfunctory gesture alone could not cure the breach. In any event, the prosecutor did not recast the government’s position when he followed withdrawal of his opening comment with the longer statement (quoted earlier) outlining the serious nature of appellant’s conduct and appellant’s “knowledge of the criminal system.” To the contrary, this second statement reinforced the implication, originally conveyed, that the government favored incarceration.

The trial court’s ruling that everything the prosecutor said was “objectively relevant” to one aspect of the agreement, namely the length of appellant’s suspended sentence, ignores the context of the prosecutor’s second statement. Having initially made a statement that violated the agreement — and retracted it only after defense objection — the prosecutor could have rectified that breach, and thus saved the situation, only by explicitly basing any further comment on a proper subject of allocution, here the length of a suspended sentence. The prosecutor, however, at no point mentioned a suspended sentence during allocution. Under the circumstances, therefore, his statements cannot be understood — as they must for the government to prevail— as a response solely to that issue.

In an effort to distinguish other cases, the government argues that it promised only “not to oppose” the defense’s recommendations; it did not promise “not to take a position on sentencing,” Crusco, supra at 25, or affirmatively to “make a recommendation on sentencing,” Brown, supra at 377 (emphasis in original). The government accordingly maintains that it reserved sufficient room for its allocution about appellant’s background.

We disagree. Such hardhitting allocution, without limitation to the proper length of a suspended sentence, was contrary to appellant’s reasonable expectation that the government had promised not to undercut his effort for a suspended sentence and probation. See Crusco, supra at 26; Brown, supra at 378; Ewing, supra at 1143; compare Braxton, supra at 388 (government’s agreement to waive allocution at sentencing did not preclude opposition to motion to *620reduce sentence). Although we recognize literal distinctions between a promise not to oppose a particular sentence and a promise to make an affirmative recommendation or to take no position at all, we believe the distinctions are meaningless in the present context. By implying the government’s support for incarceration, then simply saying, after objection, “I’ll withdraw that,” and then straightaway speaking at length about appellant’s criminal intent and background without expressly limiting his remarks to the proper length of a suspended sentence, the prosecutor in effect reaffirmed his support for incarceration.

The government itself candidly admitted in its opposition to appellant’s post-trial motion for reduction of sentence that “a reading of the transcript raises the possibility that the Court could have read into the Assistant United States Attorney’s remarks a disapproval of the suspended sentence option.” That possibility was real. The government accordingly failed in its duty to comply strictly with the terms of its agreement. See Bowler, supra at 853-54; Crus-eo, supra at 26; Brown, supra at 378; Corr-éale, supra at 947.

III.

The government’s breach of a plea agreement as to sentencing may be remedied either by ordering resentencing by a different judge or, when appropriate, by allowing the defendant to withdraw the plea. Santobello, supra, 404 U.S. at 262-63, 92 S.Ct. at 498-499. Both appellant and the government express a preference for the first, less drastic remedy. Accordingly, we reverse the sentencing order and remand for resentencing by a different judge.3

So ordered.

1. Narcotic Addict Rehabilitation Act, 28 U.S.C. §§ 2901-06 (1976).

. The Supreme Court has stated that even though “we have no reason to doubt” the sentencing judge’s statement “that the prosecutor’s recommendation did not influence him, ... 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.... We emphasize that this is in no sense to question the fairness of the sentencing judge; the fault here rests on the prosecutor, not on the sentencing judge.” Santobello, supra 404 U.S. at 262-63, 92 S.Ct. at 498-499. Contrary to the point made by our dissenting colleague, therefore, we are not concerned that the sentencing judge may have been “influenced impermissibly by the prosecutor’s remarks,” see post at 622 for the judge’s reaction to the allocution is not germane here. In the interest of strictly enforcing the prosecutor’s promises, the Supreme Court has chosen to rule out any possibility for harmless error based on a subjective inquiry into the sentencing judge’s mental process.

. Appellant, accordingly, returns to his status immediately prior to sentencing. We note that appellant was held in lieu of meeting a $10,000 bond pending sentencing. We leave it to the court, in its discretion, to invoke D.C.Code 1973, § 23-1325(b), which provides:

A person who has been convicted of an offense and is awaiting sentence shall be detained unless the judicial officer finds by clear and convincing evidence that he is not likely to flee or pose a danger to any other person or to the property of others. Upon such finding, the judicial officer shall treat the person in accordance with the provisions of section 23-1321 [release in noncapital cases prior to trial],