FILED 


SEPT. 24, 2013 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


STATE OF WASHINGTON, ) No. 30677-1-111 

) 

Respondent, ) 

) 

v. ) UNPUBLISHED OPINION 

) 

CURTIS GENE GANSKE, ) 

) 

Appellant. ) 

KULIK, J. - Curtis Gene Ganske pleaded guilty to second degree burglary. Mr. 

Ganske's plea agreement allowed the State to revoke the agreement ifMr. Ganske 

became involved in any further violation ofthe law. After Mr. Ganske was detained for a 

misdemeanor violation in another county, the State recommended a sentence greater than 

that set forth in the agreement. Mr. Ganske appeals, contending that the State breached 

the terms ofhis plea agreement. We disagree and affirm. 

FACTS 

Mr. Ganske was charged with second degree burglary in Benton County. Mr. 

Ganske entered into a plea agreement with the Benton County prosecuting attorney's 

office. Generally stated, Mr. Ganske agreed to provide information and assistance to law 
No.30677-I-III 

State v. Ganske 

enforcement and maintain weekly contact with the supervising detective. In return, upon 

completion of Mr. Ganske's responsibilities, the State agreed to recommend a 24-month 

exceptional sentence downward in place of the standard range sentence of 51 to 68 

months. The plea agreement also contained a provision that allowed the State to revoke 

the agreement if Mr. Ganske became involved in any further violation of the law, 

irrespective ofwhether Mr. Ganske was charged or convicted of the offense. 

At the plea hearing, the State advised the court that the 24-month recommendation 

was for the exceptional sentence, but that it would recommend 65 months if the elements 

of the exceptional sentence were not satisfied. Mr. Ganske stated that he understood the 

State's position. 

A few months later, Mr. Ganske's sentencing hearing was held. Mr. Ganske failed 

to appear because he was being held on a misdemeanor violation in Spokane. A bench 

warrant was issued for Mr. Gankse's arrest. At a second sentencing hearing, the State 

recommended a sentence of65 months, based on Mr. Ganske's past and ongoing criminal 

activity. Mr. Ganske did not attempt to have the plea agreement enforced. The court 

sentenced Mr. Ganske to 60 months of incarceration. 

Mr. Ganske appeals. He contends that the State breached the plea agreement when 

it failed to adhere to the 24-month recommendation made at the plea hearing. 

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No.30677-1-III 

State v. Ganske 

ANALYSIS 

"Because a plea agreement is a contract, issues concerning the interpretation of a 

plea agreement are questions oflaw reviewed de novo." State v. Bisson, 156 Wn.2d 507, 

517,130 P.3d 820 (2006). 

"Due process requires a prosecutor to adhere to the terms of the [plea] agreement." 

State v. Sledge, 133 Wn.2d 828,839,947 P.2d 1199 (1997), Thus, a prosecutor's failure 

to abide by a plea agreement is a manifest error affecting a constitutional right and may be 

raised for the first time on appeal. State v. Sanchez, 146 Wn.2d 339, 345-46,46 P.3d 774 

(2002). 

"The State fulfills its obligations if it acts in good faith and does not contravene 

the defendant's reasonable expectations that arise from the agreement." State v. 

McInally, 125 Wn. App. 854, 861-62, 106 P.3d 794 (2005), When a defendant fails to 

comply with the terms of a plea agreement, he or she loses the right to enforce the 

agreement. Id. at 867. 

If there is a genuine factual dispute as to whether the defendant breached the 

agreement, remand for an evidentiary hearing is required. In re Pers. Restraint ofJames, 

96 Wn.2d 847, 850,640 P.2d 18 (1982). But ifno question exists as to the defendant's 

breach, this court need not order an evidentiary hearing. See State v. Hall, 32 Wn. App. 

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No. 30677-1-111 

State v. Ganske 

108,110,645 P.2d 1143 (1982). 

Here, the State was not required to abide by the terms of the plea agreement. Mr. 

Ganske breached the terms ofthe plea agreement by a further violation ofthe law~ a 

misdemeanor in Spokane. Mr. Ganske understood that a violation of the plea agreement 

would result in a 65-month sentence recommendation by the State, instead of a 24-month 

recommendation. 

There is no need to remand for an evidentiary hearing because there is no question 

as to Mr. Ganske's breach. He admitted to the court that his misdemeanor offense was 

the reason he failed to appear at his initial sentencing hearing. Thus, the State had no 

obligation to recommend a 24-month exceptional sentence. 

We affirm. 

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. 

Kulik, J. 

WE CONCUR: 

orsmo, C.J. 

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