### FILED 

### Jan. 14,2016 In the Office ofthe Clerk ofCourt W A State CourtofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 32717-5-111 Respondent, ) ) 

### v. ) ) UNPUBLISHED OPINION GUILLERMO GOMEZ, ) ) Appellant. )
LAWRENCE-BERREY, 

### J.

- Guillermo Gomezpleaded guilty to second degree burglary and second degree theft. He challengesthe voluntariness ofhispleain light of the State's alleged breach ofthe plea agreementwhenthe prosecutor argued for a higher offender score during sentencing than agreedto by the parties. The State acknowledges
an offender score miscalculation, butargues the pleawas voluntary. Becausethe State breachedthe pleaagreement by undercutting the agreed sentencing recommendation, we remand with instructions to permit

### Mr. Gomezto elect whetherto withdraw his guilty plea or seek specificperformance. Based onthis disposition; the miscalculated offender
score issue is moot.No. 32717-5-111 State v. Gomez
FACTS The State charged Mr. Gomez with second degree burglary, second degree theft, third degree malicious mischief, second degree vehicle prowling, and third degree theft, all occurring in Kittitas County. Mr. Gomez agreedtoplead guilty to second degree burglary and second degree theft in exchange for the otherthree charges being dismissed. Theplea agreement showed an offender score ofone for each offense and a sentencing range of9-12 months on the burglary charge and 3-8 months on the theft charge. The agreement also noted that Mr. Gomez had two current Yakima County charges against himthat "occurredpriorto the events in this case & thus should not count inpresent offender score." Clerk's Papers (CP) at 4. The State agreed to recommend concurrent sentencing with the Yakimaconvictions. Mr. Gomezpleaded guilty in YakimaCounty to residential burglary and intimidating a witness. Thenext day, the Kittitas County court acceptedMr. Gomez's guilty pleato the second degree burglary and second degree theft charges and scheduled sentencing for the following Monday. Atthe sentencinghearing, the prosecutor argued the offender score on the plea agreementwas incorrect and should be "onehigher" because Mr. Gomezpreviously

2No. 32717-5-111 State v. Gomez "pled in Yakima." Report ofProceedings (RP) (June 9,2014) at 3. Mr. Gomez objected1 and the matter was continued to sort out the offender score discrepancy. The State argued Mr. Gomez was aware ofthe possibility ofahigher offender
score ifthe Yakima convictions went first. Defense counsel countered that he did not remember the discussion and "certainly did not communicate
... it to [Mr. Gomez]." RP (June 13,2014) at 11. Ultimately, the sentencing court included the Yakima convictions in calculating Mr. Gomez's offender score and included a 2012 harassment conviction, which the court incorrectly counted as a felony.2 Based on an offender score offive, the court sentenced Mr. Gomez to 17 months for the second degree burglary conviction and 12 months for the second degree theft conviction. The sentences were run concurrent with each other and the Yakima convictions. Mr. Gomez appeals. ANALYSIS The issue is whether the State breached the parties' plea agreement by recommending a sentence higher than that agreed by the parties. Plea agreements are contracts; therefore, issues regarding the interpretation ofa plea agreement are questions oflaw and are reviewed de novo. State v. Bisson, 156

I Appellate counsel notes in his opening briefthat his client did not objectbelow, but ourrecord clearly shows Mr. Gomez opposed the higher offender score calculation, whichresulted in a continuance ofthe sentencing hearing. 2The State concedes the error. 3No. 32717-5-III State 

### v. Gomez
Wn.2d 507, 517, 130 P.3d 820 (2006). The State has a contractual duty ofgood faith, requiring that it not undercut the terms ofthe agreement, either explicitly or implicitly, by conduct evidencing intentto circumventthe terms ofthe plea agreement. State v. Jerde, 93 Wn. App. 774, 780, 970 P.2d 781 (1999). In addition to contractprinciples binding the parties to the agreement, constitutional due process "requires a prosecutorto adhere to the terms ofthe agreement" by recommending the agreed on sentence. In re Pers. Restraint alLard, 152 Wn.2d 182, 189,94 P.3d 952 (2004). Moreover, a guilty plea is involuntary and must be withdrawn when the defendant has been incorrectly advised ofthe offender score and accompanying standard range. State v. Mendoza, 157 Wn.2d 582,589-91, 141 P.3d 49 (2006). A defendant, however, may waive this right ifhe or she "was clearly informed before sentencing that the correctly calculated offender score rendered the actual standard range lower than had been anticipated at the time ofthe guilty plea." Id. at 592 (emphasis added). The range here was higherthan anticipated. In this case, afterMr. Gomezpleaded guilty, the prosecutor argued for a higher offender score than listed onthe plea agreement based on the Yakima convictions even though the plea agreement specifically stated that the Yakima charges "should not count in present offender score." CP at 4. Moreover, defense counsel acknowledged he did not communicate to Mr. Gomez the possibility ofthe Yakima charges increasing his offender
score. UnderLord, 152 Wn.2d at 189, theprosecutorwas required "to adhere to the 

### 4No. 32717-5-III State v. Gomez
terms ofthe agreement" by recommending the agreed on sentence; the prosecutor failed to do so. Also problematic is the voluntariness ofthe plea. In State v. Walsh, 143 Wn.2d 1, 4, 17 P.3d 591 (2001), our Supreme Court held that a plea agreement was not voluntary where the prosecutor agreedto recommend the low-end ofa standardrange sentence, butthe plea agreement contained a mistaken standard range. The court held, "[Mr.] Walsh has establishedthat his guilty plea was involuntary based upon the mutual mistake about the standard range sentence." [d. at 9. The court further held, "Where a plea agreement is based on misinformation, as in this case, generally the defendant may choose specific enforcement ofthe agreement orwithdrawal ofthe guilty plea." [d. "Whenthe prosecutorbreaches a plea agreement, the appropriate remedy is to remand for the defendant to choose whetherto withdraw the guilty plea or specifically enforce the State's agreement." State v. Jerde, 93 Wn. App. 774, 782-83, 970 P.2d 781 (1999). '" [T]he defendant's choice ofremedy controls, unless there are compelling
reasons not to allow that remedy.'" [d. (quoting State v. Miller, 110 Wn.2d 528, 535, 756 P.2d 122 (1988)). Based on the above, the prosecutorbreached the plea agreement, renderingMr. Gomez'spleainvoluntary. The appropriate remedy is to reverse and remand for Mr. Gomez to electwhether to withdraw his guilty plea or specifically enforce the State's agreement.



### 5No. 32717-5-III State v. Gomez
Reversed and remanded. A majority ofthe panel has determinedthis opinion will not be printed in the Washington Appellate Reports, but itwill be filed for public recordpursuantto RCW 2.06.040. 

## j WE CONCUR:

### Fearin~q=l .



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