### FILED 

### APRIL 28, 2015 In the Office ofthe ClerkofCourt WA State Court ofAppeals, Division III

STATE OF WASHINGTON, Respondent, 

### v. TONYALLENBARCLAY, Appellant. IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE 

# I I
r i I ) i

# I i ) No. 

### 31970-9-111 ) (consolidatedwith t ) No. 

### 31971-7-111) ) 

# I ) ) UNPUBLISHED OPINION ) ) KORSMO, 

### J.

- This is the second time this case has beenbefore this court. Unfortunately, we must sendthe case back for a third sentencing proceeding. FACTS Tony Barclaypleaded guilty to charges ofsecond degree burglary and third degree 

# I theftunder one file and one count ofsecond degree assault under a second file in accordance with a plea agreement. Differentprosecutors were involved in the two cases. 

# I

The partiesjointlyrecommended concurrent sentences of51 months ontheburglary and 

# I**~** 69 months onthe assault charge. However, the trial court imposed sentences of60 and 

# I t 84 months, respectively, and appeared to orderthat they be served consecutively. On appeal, this court affirmed the two convictions, butreversed the sentences and 

# I remanded "forresentencing" because it was unclear ifthe court intended consecutive 

# I t iNo. 31970-9-III; 31971-7-III State v. Barclay

sentences (permissible as an exceptional sentence) orconcurrent sentences.] See No. 30475-2-III (cons. with No. 30477-9-III; filed April 18, 2013) at 1,7. The matter proceededto a second sentencing hearing before a newjudge since the original trialjudge had retired. Defense counsel askedthe court to impose the originally recommended sentences. One ofthe prosecutors concurred thattheirrecommendation was "as [defense counsel] indicated in both cases." Report ofProceedings (RP) at 26. The otherprosecutor, however, indicated that "the State'sposition is that we simply keep the same amount of time originally imposed." RP at 31. Bothprosecutors alsotold the court thatthe purpose ofthe hearing was solely to correct the consecutive/concurrent sentence problem. RP at 26,30.The court imposed concurrent sentences of60 and 84 months. Mr. Barclay again timely appealed to this court. ANALYSIS Mr. Barclay contends thatthe 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 trialjudge

I We also notedthat 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). 

### 2No. 31970-9-111; 31971-7-111 State v. Barclay
instead ofthe lower figures required by the plea agreement. We need not decide whether they did breach the agreementbecause their apparent confusion, even ifnot shared by the trialjudge,justifies a remand for a new sentencinghearing-the same remedy that Mr. Barclay asks us to apply ifwe find a breach ofthe 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 ofthe plea agreement. Id. at 839. Thatrequires the prosecutorto make "thepromised sentencing recommendation" even though she need not do so with enthusiasm. Id. at 840. Theprosecutor also must not undercut or attemptto 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 ofa plea agreement, the defendant has the option of withdrawing his guilty plea or seeking specific performance ofthe agreement. State v. Barber, 170 Wn.2d 854, 855,248 P.3d 494 (2011). Specific performance gives the parties the benefit oftheir bargain. Id. at 859. The remedy ofspecific performance is not available in cases ofmutual mistake bythe parties. Id. at 873-74. Mr. Barclay argues that the prosecutor undercutthe agreement by telling the trial courtthatthe sole purpose ofthe hearing was to correct the consecutive sentence problem and that he is entitled to specific performance ofthe plea agreement. Itis a debatable 3No. 31970-9-III; 31971-7-III State v. Barclay argument whetherthere was an actual breach oftheplea agreement in light ofthe facts that (1) the trialjudge 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 undercuttingthe agreement, defense counsel never asked the prosecutors to make the agreed upon recommendations. Instead ofdeciding 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 theparties to educate the newjudge on theirpositions so that thejudge 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 oflaw atthe resentencing. Accordingly, we remand for another new resentencing hearing. The court again will have to impose an appropriate sentence andthe prosecutors will need to make their agreed upon recommendations. The trialjudge, having already rejected an exceptional 4No. 31970-9-111; 31971-7-111 State v. Barclay

sentence consisting ofconsecutive 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 ofthe 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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