IN THE COURT OFAPPEALS FOR THE STATE OF WASHINGTON STATE OFWASHINGTON, Respondent,
v. RONALD WAYNE MACDONALD, Appellant. No. 69415-4-1 DIVISION ONE UNPUBLISHED OPINION FILED: January 21, 2014 r-3 too c3 —\c XT 53 I— 2£ <*»— -n „ ro 0-,rvi.- ys> re rsrS? 3^ G3 22 vD Leach, C.J.

— Ronald MacDonald pleaded guilty to second degree 

### manslaughter. He claims that the State breached his plea agreement when an 

### investigating officer addressed the court as a representative of the victim and recommended a sentence greater than that set forth in the plea agreement. 

### Becausethe plea agreementdid not bind the investigatingofficer, weaffirm. Background 

### On June 11, 2012, the State charged MacDonald byamended information 

## with murderinthefirstdegreeforkilling Arlene Roberts in 1978.1 Afterthetrial began, the parties entered into a plea agreement. The State amended the

1 At the time of the murder, the original detectives investigated several 

### leads but did not develop a suspect, and the case became inactive. In 2010, 

### technological advances allowed police to match MacDonald's fingerprints with the crime scene. During interviews with MacDonald in June 2011, police obtained additional evidence connecting him to the murder.No. 69415-4-1/2


### information to charge MacDonald with second degree manslaughter, and 

### MacDonaldentered anAlford2plea. According to the plea, the parties agreed to recommend that MacDonald
serve 16 months of confinement. The State would recommend a 5-year 

### suspendedsentence, andMacDonaldwouldrecommenda 1-yearsuspension.3 At the sentencing hearing, the prosecutor requested a 5-year sentence suspended on the condition that MacDonald serve 16 months of confinement. The prosecutorthen informed the court, 

### [Detective Tompkins] has asked me to ask the court if he could speak. Arlene Roberts has no family. Detective Tompkins has— I've made clearto him that Idon't want to know what he's going to 

### say. Ihave no idea what itwill be. Itdoesn't do anything to affect my recommendation. My recommendation is still solidly for 16 

### monthsbecause that'swhattheagreementwas.[4] The courtpermittedTompkins to speakon behalfofthe victim. In his address to the court, Tompkins stated, 

### Ifeel obligated to askforthe maximum sentence in this case. This woman was born in 1898, and she has no living family. No one to speak on her behalf. And so[,] Iknow that you heard a lot inthe 3.5 hearing aboutwhat happened in Reno inour interview ofthe defendant, but Ialso would like to introduce what happened to the victim. And I don't think you saw those, and I'd like to presentthose to you.



### 2 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

### 3The parties recommended these sentences based upon former RCW 9.92.060 (1967). Because the crime here took place in 1978, before the enactmentofthe Sentencing Reform Act of 1981, chapter 9.94A RCW, the court 

### appliedthe sentencing rules in effect at thattime. 

### 4Detective Tompkins was the lead detective in the recent investigation in this case.No. 69415-4-1/3 Tompkins marked photos of the crime scene as an exhibit to the sentencing hearing. MacDonald objected, arguing, "I think he is an agent of the State. I think thatdoes breach the plea agreement." Inoverruling this objection, the court explained, "Inmany cases, ifnot all criminal cases, particularly serious ones such
as this, a victim advocate very frequently speaks to the court on behalf of the victim. There is no victim advocate speaking here today, and Ithink Detective Tompkins maytake thatrole." Tompkins argued that the victim "died a horrific death," addressed a number of evidentiary issues that MacDonald raised in his presentence report, and stated, "This happened to somebody, and somebody needs to be held accountable for it. No more and no less. And 16 months is not being held accountable." Following Tompkins's statements, the court stated, "I want to make clearthat Iallowed Detective Tompkins to speak insofar as he is speaking
on behalfof the victim since there's not a victim advocate here today.
. . .So I'll take his comments as they pertain to his advocacy on behalfofthe victim." On August 8, 2012, the court imposed the maximum sentence of 60 months of confinement with a minimum sentence of 55 months. The court explained, "I think to impose the sentence recommended by the parties would seriouslydeprecate the nature ofthat crime, and would be an affront tojustice as well as the memory of Mrs. Roberts." The court noted that it would have imposedthe same sentence regardless ofTompkins's statements.No. 69415-4-1/4
On September 6, 2012, MacDonald filed a CrR 7.8 motion to withdraw his guilty plea, claiming that Tompkins "acted as an advocate to undercut the negotiated plea that he and the prosecutor had negotiated. The State's attempt to use the label of victim advocate to avoid the reality of Detective Tompkins's role and purpose at sentencing does not stand up to scrutiny." On September 14, 2012, the court entered a memorandum opinion and order of transfer to the CourtofAppeals. MacDonald appeals. Analysis 

### "A plea agreement is a contract between the State and the defendant."5 Because a defendant gives up important constitutional rights by agreeing to a plea bargain, the State must comply with the terms of the agreement by 

### recommending the agreed-upon sentence.6 The State must not"undercut the terms ofthe agreement explicitly or implicitly by conduct evidencing an intent to 

### circumvent the terms of the plea agreement."7 To determine if a prosecutor violated his duty to adhere to a plea agreement, "we review the entire sentencing record and ask whether the prosecutor contradicted by words or conduct the 

### State'srecommendationforastandard range sentence."8 Aprosecutor's breach 5Statev. Carreno-Maldonado. 135Wn.App. 77, 83, 143 P.3d 343 (2006) (citing Statev. Sledge. 133Wn.2d 828, 838, 947 P.2d 1199 (1997)). 

### 6Carreno-Maldonado, 135 Wn. App. at 83 (citing Sledge, 133 Wn.2d at 839). 

### 7Carreno-Maldonado, 135 Wn. App. at 83 (citing Sledge, 133 Wn.2d at 840; Statev. Jerde, 93 Wn. App. 774, 780, 970 P.2d 781 (1999)). 

### 8 State v. Halsev, 140 Wn. App. 313, 320, 165 P.3d 409 (2007) (citing State v. Williams, 103 Wn. App. 231, 236, 11 P.3d 878 (2000)).

-4-No. 69415-4-1/5 

### of aplea agreementatsentencing violates dueprocess.9 Good motivations or a 

### reasonablejustificationdonotexcuse abreach.10 MacDonald does not claim that the prosecutor breached the plea agreement by her own words or conduct. Rather, he claims that the State violated the plea agreement because, as an "investigating arm" of the prosecutor's office, the investigating officer is bound by the plea agreement. 

### MacDonald cites State v. Sanchez,11 in which five justices agreed that an investigating officer is part of the prosecution team and is bound by the prosecutor's plea agreement. Article I, section 35 of the Washington Constitution grants a victim of a 

### crime charged as a felony the right to "make a statement at sentencing
.... In the event the victim is deceased,
... the prosecuting attorney may identify a 

### representative to appear to exercise the victim's rights. This provision shall not constitute a basis for error in favor of a defendant in a criminal proceeding." RCW 7.69.030(14) requires a court to make a reasonable effort to ensure that 

### crime victims have the right to present a statement personally or by 

### representation at the sentencing hearing for felony convictions. Before a court imposes a sentence, RCW 9.94A.500(1) requires the court to consider "the risk assessment report and presentence reports, ifany, including any victim impact


### 9Statev. Sanchez, 146 Wn.2d 339, 346, 46 P.3d 774 (2002). 

### 10 Halsev, 140Wn. App. at 320 (citing State v. VanBuren, 101 Wn. App. 206, 213, 2P.3d991 (2000)). 

### 11 146 Wn.2d 339, 46 P.3d 774 (2002) (Chambers, J., concurring/dissenting) (Madsen, C.J., dissenting).No. 69415-4-1/6

statement and criminal history, and allow arguments from the prosecutor, the defense counsel, the offender, the victim, the survivor of the victim, or a 

### representative of the victim or survivor, and an investigative law enforcement officer" aboutthe appropriate sentenceto impose. In Sanchez, the prosecutor made no recommendation at the sentencing 

## hearing.12 The victim and her parents addressed the sentencing court.13 The investigating officer also addressed the court, stating his own opinions and 

### beliefs about the appropriate sentence.14 Unlike Tompkins, the investigating officer inSanchezdid not purportto address the courton the victim's behalf. 

### Here, the prosecutor twice recommended a sentence inaccordance with the terms of the plea agreement. After making her recommendation, the 

### prosecutor informed the court that Tompkins wished to address the court on the victim's behalf. She explained that she did not knowwhat he would say and that his statements would not affectthe State's recommendation. 

### Notwithstanding the holding in Sanchez that an investigating officer was bound to a prosecutor's plea agreement based on basic principles of fairness 

### and agency,15 a victim advocate employed by the prosecutor's office is not prohibited from testifying contrary to the prosecutor's recommendation. Here, Tompkins made clear to the court that he spoke solely as a representative of the

12 Sanchez, 146Wn.2d at 343. 13 Sanchez, 146Wn.2d at 343. 14 Sanchez, 146Wn.2d at 343. 15 Sanchez, 146Wn.2d at 356.No. 69415-4-1/7
victim. He conveyed the victim's history and the circumstances of her death to the court in that capacity, not as a prosecution team member. Therefore, his request that the court reject the parties' recommended sentence was not part of
an effort ofthe prosecutor's office to affect the sentencing procedure; rather, his purpose was an effort to accord the victim the "due dignity and respect" contemplated by article I, section 35 oftheWashington Constitution. Conclusion Because Tompkins addressed the court as an advocate ofthe victim and 

### not as an agent ofthe State, his statements did not constitute a breach ofthe plea agreement. We affirm. 

# J^>LcJ(. (ZWE CONCUR: 

# Ssr(h,WQQ,r?<r