State v. Bisson

¶29 (dissenting) — Jonathan Bisson pleaded guilty to five counts of first degree robbery, three counts of second degree robbery, and five deadly weapon enhancements. His plea was involuntary because he reasonably believed the deadly weapon enhancements would run concurrently to one another. But the majority concludes Bisson is not entitled to specific performance of the plea agreement he reasonably believed he made, asserting it was ambiguous as to whether the deadly weapon enhancements would run concurrently or consecutively.

Sanders, J.

¶[30 Due process requires construction of ambiguous plea agreements against the State and in accordance with a criminal defendant’s reasonable expectations. Bisson quite reasonably expected his deadly weapon enhancements to run concurrently with one another. And he is entitled to specific performance of that expectation.

|31 As the majority recognizes, a plea agreement is a contract with the State and due process entitles a criminal defendant to specific performance, even if its terms conflict with the law. Majority at 520. See, e.g., State v. Miller, 110 Wn.2d 528, 536, 756 P.2d 122 (1988); State v. Harrison, 148 Wn.2d 550, 556-57, 61 P.3d 1104 (2003); In re Pers. Restraint of Isadore, 151 Wn.2d 294, 302-03, 88 P.3d 390 (2004); State v. Cosner, 85 Wn.2d 45, 50-51, 530 P.2d 317 (1975).

¶32 The majority concedes Bisson’s plea agreement implied his deadly weapon enhancements would run concurrently to one another. Majority at 511, 521. It concedes the State erroneously cited a superseded statute we construed as authorizing deadly weapon enhancements to run *527concurrently to one another. Majority at 512-13, 521. It concedes the State failed to specify Bisson’s deadly weapon enhancements would run consecutively to one another in its sentencing recommendation. Majority at 513-14, 521. It concedes the State failed to specify Bisson’s deadly weapon enhancements would run consecutively to one another in its oral presentation at his sentencing hearing. Majority at 514-15, 521. It concedes the trial court assumed Bisson’s deadly weapon enhancements would run concurrently to one another. Majority at 514-15, 521. It concedes Bisson had no idea his deadly weapon enhancements would run consecutively to one another until the State asked the trial court to amend its sentencing judgment. Majority at 514-15, 521. It concedes contracts — including plea agreements — are construed against the drafting party, in this case the State. Majority at 521-22. It concedes plea agreements are construed against the government. Majority at 522-23. And it concedes the rule of lenity supports construing ambiguous plea agreements against the State. Majority at 523. And yet, inexplicably, it concludes Bisson is not entitled to specific performance of the plea agreement he quite reasonably believed he made because it was “ambiguous” as to whether his deadly weapon enhancements would run concurrently or consecutively to one another. Majority at 523-24.

¶33 It is axiomatic that due process requires courts to construe any ambiguity in a plea agreement against the government and in accordance with the defendant’s reasonable understanding of the agreement. See, e.g., United States v. Roitman, 245 F.3d 124, 126 (2d Cir. 2001); United States v. Baird, 218 F.3d 221, 229 (3d Cir. 2000); United States v. Harvey, 791 F.2d 294, 303 (4th Cir. 1986); United States v. Melton, 930 F.2d 1096, 1097-98 (5th Cir. 1991); United States v. Randolph, 230 F.3d 243, 248 (6th Cir. 2000); United States v. Rourke, 74 F.3d 802, 805 (7th Cir. 1996); United States v. Coleman, 895 F.2d 501, 505 (8th Cir. 1990); United States v. Camarillo-Tello, 236 F.3d 1024, 1026 (9th Cir. 2001); United States v. Peterson, 225 F.3d 1167, 1171 (10th Cir. 2000); United States v. Nyhuis, 8 F.3d 731, *528741-42 (11th Cir. 1993). See also, Lisa B. Eisen & Ian R. Rooney, Annual Review of Criminal Procedure: Guilty Pleas, 90 Geo. L.J. 1477, 1481 & n.1237 (2002). The majority cites no authority to the contrary.

¶34 When the State relies on a statute authorizing an enhanced sentence, “due process of law requires that the information contain specific allegations to that effect, thus putting the accused person upon notice that enhanced consequences will flow with a conviction.” State v. Cosner, 85 Wn.2d at 50. Failure to provide such specific notice requires the State “to reduce their mandatory minimum terms in accordance with their understanding of the length thereof at the time of their pleas.” Id. at 51-52.

¶35 Therefore the State “ ‘must bear responsibility for any lack of clarity’ ” in Bisson’s plea agreement, not Bisson. United States v. De La Fuente, 8 F.3d 1333, 1338 (9th Cir. 1993) (quoting United States v. Anderson, 970 F.2d 602, 607 (9th Cir. 1992), amended on reh’g, 990 F.2d 1163 (1993)). If Bisson’s plea agreement was ambiguous, as the majority concedes, he is entitled to specific performance of the plea agreement he reasonably believed he made. In other words, Bisson is entitled to serve his deadly weapon enhancements concurrently, not consecutively.

¶36 I dissent.

C. Johnson, J., concurs with Sanders, J.