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### FILED AUGUST 1, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III



### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE STATE OF WASHINGTON, Respondent,


### v. LONNIE DEAN GLEIM, JR., Appellant. 

### ) ) ) ) ) ) ) ) ) 

### No. 34577-7-111

PUBLISHED OPINION

PENNELL,

### J.

- A prosecutor's duty to abideby theterms ofa pleaagreement applies both at an original sentencinghearing as well as atresentencing afterremand. What is unclear under our case law is the scope ofaprosecutor's duty when a remandNo. 34577-7-III 

### State v. Gleim
orderpermits the trial court to choose between full resentencing and a more limited remedy. In such circumstances, must a prosecutor advocate for full resentencing ifdoing
so is the only way the trial court might issue ajudgment consistent with the terms ofthe plea agreement?

I Our answer is no. Until the trial court makes clearthat it has opted for full resentencing, a prosecutor's duties are akin to those on an appeal. Theprosecutormay advocate for finality and oppose full resentencing, even ifit means the sentence sustained against the defendant differs from the disposition recommended in theparties' plea agreement. Applying this principle to thepresent case, we rejectLonnie Dean Gleim Jr.'s claim that the prosecutorviolated the terms ofMr. Gleim'splea agreement on remand by not advocating for full resentencing. We also disagree with Mr. Gleim's other assignment oferrorpertaining to the imposition oflegal financial obligations (LFOs). The matter is therefore affirmed. BACKGROUND Mr. Gleimpleaded guilty to four counts offirst degree possession ofdepictions of
a minor engaged in sexually explicit conduct. Pursuantto a plea agreement, the parties

2No. 34577-7-III 

### State v. Gleim agreed to ajointrecommendation of36 months' confinement. This recommendation was substantially lowerthan the standard range of77 to 102 months. At the original sentencing hearing in 2015, the State and Mr. Gleimbothrequested
an exceptional sentence downward of36 months' confinement followed by 36 months' community custody. 

### It is undisputed that the prosecutor abided by his duties underthe plea agreement at this hearing. However, the trial court opted for a high-end sentence of 102 months on each count, all to run concurrently, plus 36 months ofcommunity custody. The court also imposed a series ofdiscretionary and mandatory LFOs. Pertinent to this appeal, the court imposed $200 in unspecified "Court costs." Clerk's Papers (CP) at 28. Mr. Gleim appealed. During his first appeal, Mr. Gleim successfully arguedthe total sentence imposed by the court exceeded the statutory maximum and discretionary LFOs were imposed without an adequate inquiry into ability to pay. 

### State v. Gleim, No. 33209-8-III, slip op. at 1-2 (Wash. Ct. App. May 3, 2016) (unpublished), http://www.courts.wa.gov/opinions/pdf/332098.unp.pdf. We remanded Mr. Gleim's case "to the trial court to either amend the community custody term orto resentence Mr. Gleim consistent with [RCW 9.94A.701(9)]" andto conduct a properLFO inquiry. 

### Id. at 6-7, 11.

3No. 34577-7-III State v. Gleim
Mr. Gleim's case returned to the trial court for proceedings before the original sentencingjudge. On remand, the prosecutor initially informed the courtthe general purpose ofthe hearing was to amendMr. Gleim's term ofcommunity custody and to conduct an individualized inquiry into LFOs. The defense objected, claimingthe purpose
was to conduct a full resentencing. After a continuance, the prosecutorrevised his statement, explainingthe purpose was eitherto amendthe previousjudgment orto issue a
newjudgment and sentence "that goes through everything." 1Verbatim Report of Proceedings (VRP) (June 27, 2016) at 4. Defense counsel then continuedto argue for a full resentencing and advocated at length for thejointrecommendation contained in the plea agreement. Atthe close ofdefense counsel's comments, the court asked ifthe prosecutorhad anything to add. He stated he did not. Immediately after the prosecutor declined further comment, defense counsel made
an oral motion to withdraw Mr. Gleim's guilty plea. The defense claimed the State had violated its plea agreement obligation to recommend a 36-monthterm ofincarceration. Theprosecutor responded the State had never changed its recommendation and the State reiterated the same recommendation. The court noted it hadthe parties' recommendation. The motion to withdraw the plea was then denied. After the court's oral ruling, defense

4No. 34577-7-III 

### State v. Gleim
counsel complained the prosecutornever articulated any reasons in support ofits 36- month recommendation. The court stood by its ruling. After disposing ofMr. Gleim's motion to withdraw his plea, the courtresentenced Mr. Gleim to 102 months concurrent on all four counts and 18 months community custody. This was the first time during the proceedings that the court clarified it would be resentencing Mr. Gleim, as opposedto merely amending the term ofcommunity custody. As part ofthe resentencing, the court also imposed $800 in LFOs, noting it was "taking offthose that are voluntary fines." 1VRP (June 27, 2016) at 12. The $800 imposed by the court includes a $500 victim assessment fee, a $100 DNA (deoxyribonucleic acid) collection fee, and a $200 clerk's filing fee. Mr. Gleim appeals the sentence imposed on remand, arguing the State breached the plea agreement and the court failed to recognize and strike a discretionaryLFO. ANALYSIS 

### Breach of plea agreement Mr. Gleim argues the trial court abused its discretion1by denying the motion to withdraw his guilty plea based on breach ofthe plea agreement. Because there was no

1We review a trial court's denial ofa motion to withdraw a plea for abuse of discretion. 

### State v. Jamison, 105 Wn. App. 572, 589-90, 20 P.3d 1010 (2001). 

### 5

### No. 34577-7-III 

### State v. Gleim breach, we disagree. Boththe law ofcontracts and due process require prosecutors to abide by the terms oftheirplea agreements in good faith. 

### In re Pers. Restraint of Lord, 152 Wn.2d 182, 188-89, 94 P.3d 952 (2004). This duty applies both at an original sentencing hearing and at resentencing. 

### State v. 

### Arko, 52 Wn. App. 130, 132, 758 P.2d 522 (1988). Thus, ifa plea agreement obliges the prosecutor to make a certain recommendation at sentencing, the same recommendation generally must be made ifthe case is remanded for resentencing after appeal. 

### Id. at 135. However, during the period between initial sentencing and resentencing, a prosecutor's obligations are different. Ifa trial court imposes a sentence different from what was contemplated by a plea agreement, the prosecutor may defend the sentence on appeal and argue against resentencing. 

### Id. at 134. The circumstances confronted by the prosecutor during Mr. Gleim's remand proceedings were similarto those faced on appeal. Ourprior opinion did not definitively orderresentencing. Instead, we permitted the trial courtto choose between amending the term ofcommunity custody and resentencing. Priorto the trial court's selection of remedy, the prosecutor was free to argue against resentencing,just as had beentrue on appeal. Because the trial court waited until the conclusion ofthe proceedings to determine whether it would be resentencing Mr. Gleim in full or merely amending the
6No. 34577-7-III State 

### v. Gleim

term ofcommunity custody, the State's obligation to advance the terms ofthe plea agreement neverripened. Significantly, the prosecutornever said anything during the proceedings to undermine the reasoning behind his initial sentencing recommendation of36 months. There was no statement ofregret or suggestion that the court's initial sentence of 102 months was substantively appropriate. Had the prosecutormade such statements or representations, the plea agreement may well have been undermined once the court opted for resentencing. Butbecause the prosecutormerelypresentedthe trial court with its remand options in a fairly neutral manner, the persuasive value ofthe plea agreement was
never undermined. The prosecutor's comments left no doubt that ifthe court opted to conduct full resentencing, his recommendation would still be 36 months. We discern no breach ofthe prosecutor's obligations.2 Mr. Gleim complains the prosecutor misrepresented the terms ofthis court's remand orderby indicating the only issue before the court was modification ofthe community custody term. While a misrepresentation to the court would be improper, it would not violate the terms ofthe plea agreement. In any event, viewingthe record as a

2 Because the prosecutor submittedproposed forms to the trial courtpriorto the court's selection ofremedy, such paperwork did not undermine the prosecutor's obligations under the plea agreement. 7No. 34577-7-III 

### State v. Gleim whole, there was no misrepresentation. During the second hearing onremand, the prosecutor clearly articulated the two options before the court, as set forth above. The fact that the prosecutor did not dwell on the option ofresentencing did not constitute a breach. To the contrary, because the prosecutorwas entitled to argue in favor offinality and against resentencing, the prosecutor acted within his discretion to emphasize the court's option to amend Mr. Gleim's term ofcommunity custody in lieu ofresentencing. LFOsMr. Gleim argues the court failed to recognize a discretionary LFO, the $200 "Clerk's Filing Fee." CP at 59. Because the trial court stated it intendedto waive all discretionary fees, Mr. Gleim claims this fee should have been stricken. We disagree. At Mr. Gleim's initial sentencing hearing, the trial court imposed $200 in "Court costs." CP at 28. In ourprior opinion, we noted thejudgment did not specify whether this $200 assessment was discretionary or whether it constituted a mandatory criminal filing fee under RCW 36.18.020(2)(h). 

### Gleim, slip op. at 11 n.4. In an apparentresponse to this portion ofour opinion, thejudgment on remand identified the $200 assessment as a "Clerk's Filing Fee." CP at 59. Although the amendedjudgment did not state as much, clerk's fees are authorized under RCW 36.18.020. The only clerk's fee that maybe imposed in a criminal case is a mandatory fee underRCW 36.l8.020(2)(h). Given this
8

### No. 34577-7-111 State v. Gleim
context, thejudgmentmakes sufficiently clearthe court's intentto impose a nondiscretionary fee. There was, therefore, nothing overlooked that requires further action. CONCLUSION The sentence imposed on Mr. Gleim is affirmed in full. Mr. Gleim's request to deny costs is granted.
Pennell, J. WE CONCUR:

9 

### J