dissenting: In my opinion the court has erroneously affirmed the judgment of the district court, and I must respectfully dissent. The case should be reversed upon the rule of law stated in Syllabus No. 1 of the court’s opinion.
I have always had the notion that when people make agreements they should live up to them. This is especially true where a county attorney makes an agreement with counsel for a defendant in the disposition of a criminal case.
The district court specifically found that Stillings made an agreement with Scott that if defendant would enter a plea of guilty to murder in the second degree, Stillings would recommend to the court the defendant be sentenced to a long term of years — not to life imprisonment.
Relying upon the agreement between Stillings and his attorney, the defendant entered his plea of guilty to murder in the second degree. Rut Stillings failed to live up to his agreement; he stood silent in open court prior to and during the imposition of a sentence of life imprisonment. It was only after sentence was imposed and the court had left the bench, that Stillings advised Judge Page of his agreement with Scott. This conversation occurred just outside the courtroom where Stillings and Scott stopped the court on his way to chambers, immediately following the imposition of sentence. In short, the defendant lived up to his agreement, but the state did not.
Where a plea of guilty is induced by promise of lenience by the prosecutor of the character here involved, and it is not lived up to, the plea is not a voluntary act. (Machibroda v. United States, 368 U. S. 487, 7 L. Ed. 2d 473, 82 S. Ct. 510; Bistram v. United States, 237 F. 2d 243 [8th Cir. 1956]; Motley v. United States, 230 F. 2d 110 *696[5th Cir. 1956]; United States v. Paglia, 190 F. 2d 445 [2d Cir. 1951]; People v. Odium, 91 Cal. App. 2d 761, 205 P. 2d 1106; People v. Gilbert, 25 Cal. 2d 422, 154 P. 2d 657; Roberts v. People, 158 Colo. 76, 404 P. 2d 848.) A conviction based upon such a plea is open to collateral attack.
The record discloses that facts existed, which, without any fault of the defendant, were not presented to the court. Scott was under no duty to “prod” Stillings to make his recommendation known to the court. As the state’s representative, and as an officer of the court, Stillings had the moral and ethical duty to affirmatively advise the court of his agreement with his fellow lawyer. Consequently, the defendant is entitled to have his plea and the sentence vacated, and to go to trial on a plea of not guilty where he alleges, as he does here, that he has a valid defense to the charge. (Roberts v. People, supra.)
Fontron, J., joins in the foregoing dissent.