### FILED 

### SEPT. 24, 2013 In the Office ofthe Clerk ofCourt W A StateCourt ofAppeals, Division III
INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE STATE OF WASHINGTON, ) No. 30677-1-111 ) Respondent, ) ) 

### v. ) UNPUBLISHED OPINION ) CURTIS GENE GANSKE, ) ) Appellant. ) KULIK, J.

- Curtis Gene Ganskepleaded guilty to seconddegree burglary. Mr. Ganske'splea agreement allowedthe State torevoke the agreement ifMr. Ganske became involved in any further violation ofthe law. AfterMr. Ganskewas detained for a misdemeanorviolation in another county, the State recommended a sentence greaterthan that setforth in the agreement. Mr. Ganske appeals, contendingthatthe State breached theterms ofhis plea agreement. We disagree and affirm. FACTS Mr. Ganskewas chargedwith second degree burglary in Benton County. Mr. Ganske entered into a pleaagreementwiththe Benton County prosecuting attorney's office. Generally stated, Mr. Ganske agreedtoprovide information and assistance to law

### No.30677-I-III State 

### v. Ganske


### enforcement and maintain weekly contactwith the supervising detective. In return, upon completion ofMr. Ganske's responsibilities, the State agreed to recommend a 24-month exceptional sentence downward in place ofthe standard range sentence of51 to 68 months. The plea agreement also contained a provision that allowed the State to revoke the agreement ifMr. Ganske became involved in any further violation ofthe law, irrespective ofwhether Mr. Ganske was charged or convicted ofthe offense. At the pleahearing, the State advised the court that the 24-month recommendation
was for the exceptional sentence, but that it would recommend 65 months ifthe elements ofthe 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 theplea agreement enforced. The court sentenced Mr. Ganske to 60 months ofincarceration. 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.
2No.30677-1-III 

### State v. Ganske
ANALYSIS "Because a plea agreement is a contract, issues concerningthe interpretation ofa plea agreement are questions oflawreviewed de novo." 

### State v. 

### Bisson, 156 Wn.2d 507, 517,130 P.3d 820 (2006). "Dueprocess requires a prosecutor to adhere to the terms ofthe [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 ifit 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 complywith the terms ofa plea agreement, he or she loses the right to enforce the agreement. 

### Id. at 867. Ifthere is a genuine factual dispute as to whether the defendant breached the agreement, remand for an evidentiary hearing is required. 

### In re Pers. Restraint of James, 96 Wn.2d 847, 850,640 P.2d 18 (1982). Butifno question exists as to the defendant's breach, this court need not order an evidentiary hearing. 

### See State v. 

### Hall, 32 Wn. App.
3No. 30677-1-111 State 

### v. Ganske 108,110,645 P.2d 1143 (1982). Here, the State was notrequired to abide by the terms ofthe 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 ofthe plea agreement wouldresult in a 65-month sentence recommendation by the State, instead ofa 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 courtthathis misdemeanor offense was the reason he failed to appear at his initial sentencing hearing. Thus, the State had no obligationto recommend a 24-month exceptional sentence. We affirm. A majority ofthe panel has determined this opinion will not beprinted in the Washington Appellate Reports, but it will be filed for publicrecordpursuantto RCW 2.06.040. Kulik, J. WE CONCUR:

orsmo, C.J. 4