dissenting.
I dissent.
In my opinion the State is bound to abide by its agreement with Bullock.
While the agreement between the State and Bullock was not a plea bargain in the sense it required Bullock to plead guilty to any pending criminal charges, it was nevertheless an agreement for which Bullock gave consideration. She waived her right under Indiana Rules of Procedure, Criminal Rule 4(c), to a trial within a year.1 Bullock’s trial was continued on several occasions “ . . . because we didn’t want to go to trial on her case until she had been a witness in that (Fowler) case.”
*314In addition, defense counsel’s effectiveness was seriously undercut by the State’s conduct. As recognized in Cooper v. United States, (1979) 4th Cir., 594 F.2d 12, pp. 18-19.
We begin by noting that two distinct sources of constitutional right are involved here; most obviously and directly, the right to fundamental fairness embraced within substantive due process guarantees; less directly perhaps, but nonetheless importantly, the Sixth Amendment right to effective assistance of counsel. The general relevance of the former is too plain to require discussion. That of the latter can be readily stated. Because prosecutors are required to conduct plea negotiations through defense counsel, the government’s positions and communications in plea discussions are necessarily mediated to the defendant through his counsel. * * * For this reason, not only the credit and integrity of the government but those of his counsel are involved in a defendant’s perception of the process. * * * To the extent that the government attempts through defendant’s counsel to change or retract positions earlier communicated, a defendant’s confidence in his counsel’s capability and professional responsibility, as well as in the government’s reliability, are necessarily jeopardized and the effectiveness of counsel’s assistance easily compromised. At the very least, these Sixth Amendment considerations add a heightened degree of obligation to the government’s fundamental duty to negotiate with scrupulous fairness in seeking guilty pleas. (Our emphasis.)
While Cooper, supra, dealt with the government’s attempted withdrawal of an offered plea bargain, the rationale behind the enforceability of a plea bargain is appropriate to the enforceability of any bargain offered a defendant by the State in exchange for any consideration from or detriment to the defendant. The rationale is our need to protect the credibility and integrity of the criminal justice system in all its component parts. Therefore, as in Cooper, supra, I find a right to enforcement of an agreement may indeed arise despite the fact the agreement does not encompass a guilty plea.
There is no dispute as to the content of the agreement insofar as it is described in the majority opinion. The only reasonable interpretation is Bullock agreed to fully cooperate with the State in its prosecution of Fowler. Undisputedly, she did so. Thus, she fully performed while at the same time the State was exposed to no risk. That Bullock was unable to testify at Fowler’s trial was the “fault” of the State, not Bullock. For reasons not evident in this record, the State apparently felt .Bullock’s testimony was so essential to the Fowler prosecution they were unwilling to rely on Bullock doing “what she was already legally bound to do,” as it is described by the majority opinion. Rather, the State, albeit rashly or unwise, sought to assure her cooperation by making a deal. By so doing, the State sealed its fate and now, in my opinion, must fulfill its agreement. When an agreement, specific, unambiguous, and not unreasonable on its face, is made by a defendant and the State, the agreement is enforceable unless extenuating circumstances affecting the propriety of the agreement that were unknown or not reasonably discovered by the State supervene or become known or unless the defendant breaches the agreement.
Therefore, obviously, but perhaps regretfully, I hold the opinion there is no effective remedy but to require specific performance of the agreement. I would reverse and remand with instructions to the trial court to order Bullock’s discharge.
. In addition, Bullock apparently agreed to waive her right not to incriminate herself inasmuch as she was a suspect, with Fowler, in the arson-felony murder case. The record is unclear whether she had in fact waived this right by testifying before the grand jury on the Fowler matter under the agreement with the State.