FILED 


APRIL 28, 2015 


In the Office of the Clerk of Court 


WA State Court of Appeals, Division III 


STATE OF WASHINGTON, 

Respondent, 

v. 

TONY ALLEN BARCLAY, 

Appellant. 

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


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I ) i 

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) No. 31970-9-111 

) (consolidated with 

t ) No. 31971-7-111) 

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) UNPUBLISHED OPINION 

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KORSMO, J. - This is the second time this case has been before this court. 

Unfortunately, we must send the case back for a third sentencing proceeding. 

FACTS 

Tony Barclay pleaded guilty to charges ofsecond degree burglary and third degree 

theft under one file and one count ofsecond degree assault under a second file in 

accordance with a plea agreement. Different prosecutors were involved in the two cases. 

The parties jointly recommended concurrent sentences of 51 months on the burglary and 

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69 months on the assault charge. However, the trial court imposed sentences of60 and 

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84 months, respectively, and appeared to order that they be served consecutively. 

On appeal, this court affirmed the two convictions, but reversed the sentences and I 

remanded "for resentencing" because it was unclear ifthe court intended consecutive I 

t 

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No. 31970-9-III; 31971-7-III 

State v. Barclay 

sentences (permissible as an exceptional sentence) or concurrent sentences.] See No. 

30475-2-III (cons. with No. 30477-9-III; filed April 18, 2013) at 1,7. The matter 

proceeded to a second sentencing hearing before a new judge since the original trial judge 

had retired. 

Defense counsel asked the court to impose the originally recommended sentences. 

One of the prosecutors concurred that their recommendation was "as [defense counsel] 

indicated in both cases." Report of Proceedings (RP) at 26. The other prosecutor, 

however, indicated that "the State's position is that we simply keep the same amount of 

time originally imposed." RP at 3 1. Both prosecutors also told the court that the purpose 

of the hearing was solely to correct the consecutive/concurrent sentence problem. RP at 

26,30. 

The court imposed concurrent sentences of 60 and 84 months. Mr. Barclay again 

timely appealed to this court. 

ANALYSIS 

Mr. Barclay contends that the prosecutors breached the plea agreement by 

advising that the court was only to correct the concurrent/consecutive sentence problem, 

thereby effectively recommending the higher sentences imposed by the initial trial judge 

I We also noted that the court appeared to use an incorrect offender score on the 

burglary charge. See State v. Barclay, noted at 174 Wn. App. 1042, slip op. at 6-7 

(2013). 

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No. 31970-9-111; 31971-7-111 

State v. Barclay 

instead of the lower figures required by the plea agreement. We need not decide whether 

they did breach the agreement because their apparent confusion, even if not shared by the 

trial judge, justifies a remand for a new sentencing hearing-the same remedy that Mr. 

Barclay asks us to apply if we find a breach of the agreement. 

Plea agreements are contracts that both sides must live up to. State v. Sledge, 133 

Wn.2d 828,838-39,947 P.2d 1199 (1997). Prosecutors also have a due process 

obligation to comply with the terms of the plea agreement. Id. at 839. That requires the 

prosecutor to make "the promised sentencing recommendation" even though she need not 

do so with enthusiasm. Id. at 840. The prosecutor also must not undercut or attempt to 

circumvent the agreement. Id. at 840-41. The due process protection exists even as to 

negligent failings by the prosecutor. E.g., Santobello v. New York, 404 U.S. 257, 260-63, 

92 S. Ct. 495, 30 L. Ed. 2d 427 (1971). 

When there is a breach of a plea agreement, the defendant has the option of 

withdrawing his guilty plea or seeking specific performance of the agreement. State v. 

Barber, 170 Wn.2d 854, 855,248 P.3d 494 (2011). Specific performance gives the 

parties the benefit of their bargain. Id. at 859. The remedy of specific performance is not 

available in cases of mutual mistake by the parties. Id. at 873-74. 

Mr. Barclay argues that the prosecutor undercut the agreement by telling the trial 

court that the sole purpose of the hearing was to correct the consecutive sentence problem 

and that he is entitled to specific performance of the plea agreement. It is a debatable 

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No. 31970-9-III; 31971-7-III 

State v. Barclay 

argument whether there was an actual breach ofthe plea agreement in light of the facts 

that (1) the trial judge appeared to understand that he had full resentencing authority and 

(2) one ofthe prosecutors confirmed that the plea agreement sentence recommendations 

were as the defense attorney stated. While complaining that the prosecutor might be 

undercutting the agreement, defense counsel never asked the prosecutors to make the 

agreed upon recommendations. 

Instead of deciding this issue, we resolve the case on the related issue ofthe 

prosecutor's due process obligation to comply with the plea agreement. As we noted in 

our first opinion, the matter was remanded for resentencing. That required the parties to 

educate the new judge on their positions so that the judge could exercise his sentencing 

discretion. The prosecutors therefore had a duty to comply with the agreement and make 

their sentencing recommendation. Sledge, 133 Wn.2d at 839-40. That was not done 

because the prosecution appeared to confuse the reason why this court reversed the 

original sentence with what needed to be done at resentencing. As a result, Mr. Barclay 

did not get his agreed upon recommendation from the prosecutors. In light oftheir 

apparent confusion, the prosecutors did not provide Mr. Barclay with due process of law 

at the resentencing. 

Accordingly, we remand for another new resentencing hearing. The court again 

will have to impose an appropriate sentence and the prosecutors will need to make their 

agreed upon recommendations. The trial judge, having already rejected an exceptional 

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No. 31970-9-111; 31971-7-111 

State v. Barclay 

sentence consisting of consecutive terms, is free to impose concurrent sentences within 

the standard range. The court may well impose the same sentence handed down twice 

previously, or it may not, but it must act after the prosecutors have lived up to their 

obligations under their agreement. 

Reversed and remanded. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

WE CONCUR: 


Brown, J. 

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