State v. Urista (Supreme Court)

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 103,089

STATE OF KANSAS,
Appellee,

v.

GERARDO LALO URISTA, JR.,
Appellant.


SYLLABUS BY THE COURT


1.
Whether the State breached a plea agreement presents a question of law over
which an appellate court exercises unlimited review.

2.
When a plea rests in any significant degree on a promise or agreement of the
prosecutor, so that it can be said to be part of the inducement or consideration, such
promise must be fulfilled. If the State fails to fulfill a promise it made in a plea
agreement, the defendant is denied due process. This is true even if the record indicates
that the district court's sentencing decision was not influenced by the State's actions at
sentencing.

3.
A plea agreement is generally subject to contract principles and, accordingly, the
application of fundamental contract principles is generally the best means to fair
enforcement of a plea agreement, as long as courts remain mindful that the constitutional
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implications of the plea agreement process may require a different analysis in some
circumstances. Kansas courts have recognized that contracts, with the exception of at-will
employment agreements, contain implied covenants of good faith and fair dealing.
Furthermore, the law implies that contractual provisions requiring the exercise of
judgment or discretion will be honestly exercised and faithfully performed. Thus, parties
to a plea agreement must act fairly and in good faith in carrying out the promises they
have made.

4.
The State can breach a plea agreement by explicitly failing to fulfill an agreed-
upon promise, such as failing to make a sentencing recommendation to the district court
that it promised it would make. But even when the State makes the sentencing
recommendation that it promised it would make, it can still breach the plea agreement by
making additional comments at sentencing that effectively undermine its sentencing
recommendation.

5.
Several factors are relevant for determining whether a prosecutor's additional
comments at sentencing undermined his or her sentencing recommendation, thereby
violating the plea agreement. Courts should consider how restrictive the terms of the plea
agreement are in preventing the prosecutor from making the comments at issue. In
addition, courts should consider whether the comments were made in response to
arguments presented by the defense at sentencing. And further, courts should consider the
level of discretion the district court had to impose the recommended sentence.


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6.
If the State breaches its plea agreement promise—and the defendant raises a
timely objection to the breach—such a breach will constitute harmless error only if a
court can say beyond a reasonable doubt that the State's promise had little, if any,
influence on the defendant's decision to enter into the plea agreement.

7.
When a defendant requests specific performance of a plea agreement, the
appropriate remedy for the State's breach, unless harmless, is to vacate the defendant's
sentence and remand for a new sentencing hearing before a different district court judge
with direction that the State comply at sentencing with the provisions of the plea
agreement.

Review of the judgment of the Court of Appeals in State v. Urista, 45 Kan. App. 2d 93, 244 P.3d
287 (2010). Appeal from Shawnee District Court; RICHARD D. ANDERSON, judge. Opinion filed February
8, 2013. Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district
court is reversed, sentence is vacated, and case is remanded with directions.

Rachel L. Pickering, of Kansas Appellate Defender Office, argued the cause and was on the briefs
for appellant.

Jodi E. Litfin, assistant district attorney, argued the cause, and Natalie Chalmers, assistant district
attorney, Chadwick J. Taylor, district attorney, and Steve Six, attorney general, were on the brief for
appellee.

The opinion of the court was delivered by

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ROSEN, J.: After entering into a plea agreement with the State, Gerardo Lalo
Urista, Jr., entered no contest pleas to numerous crimes in exchange for the State's
promise to recommend at sentencing that the district court impose a controlling term of
102 months' imprisonment. At sentencing, the district court declined to impose the
recommended sentence and instead imposed a controlling term of 204 months'
imprisonment. Furthermore, the district court ordered Urista to register as an offender
under the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq., once he is
released from prison.

Before the Court of Appeals, Urista raised three issues. First, he argued that the
prosecutor violated the plea agreement by making negative comments at sentencing
which undermined the parties' recommendation that the district court impose a
controlling 102-month prison sentence. Second, Urista argued that the requirement that
he register as an offender after being released from prison increased his sentence beyond
the prescribed statutory maximum. Accordingly, he argued that pursuant to Apprendi v.
New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), the fact that he
used a deadly weapon during the commission of his aggravated robbery and aggravated
assault convictions—the basis for requiring him to register as an offender—had to be
proved to a jury beyond a reasonable doubt. Third, Urista argued that the district court
violated Apprendi when it used his prior convictions to determine his sentence under the
sentencing guidelines without requiring the State to prove the existence of those
convictions to a jury beyond a reasonable doubt.

The Court of Appeals rejected each of Urista's arguments and affirmed his
sentences. State v. Urista, 45 Kan. App. 2d 93, 244 P.3d 287 (2010). We granted Urista's
petition for review on all three issues and now conclude that the prosecutor's comments at
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sentencing effectively undermined her sentencing recommendation to the district court,
thereby violating the State's plea agreement with Urista. Because we also find that this
breach of the plea agreement was not harmless, we vacate Urista's sentence and remand
for a new sentencing hearing. Because this outcome renders as moot the two other issues
(related to sentencing) presently before us, we decline to reach the merits of those issues.

FACTS

Pursuant to a plea agreement, Urista pleaded no contest to three counts of
aggravated robbery, three counts of aggravated assault, one count of burglary, one count
of conspiracy to commit burglary, two counts of criminal damage to property, one count
of criminal possession of a firearm, one count of theft, one count of criminal discharge of
a firearm at an occupied dwelling or vehicle, one count of criminal possession of a
firearm by a juvenile (1st offense), and one count of obstructing legal process or official
duty. In exchange, the State agreed to recommend imposing the "standard" sentence for
the base offense (aggravated robbery) and recommend that all the sentences run
concurrently. The parties also agreed not to seek a dispositional and/or durational
departure. At Urista's plea hearing, the prosecutor informed the district court of the plea
agreement's terms, including the recommended sentence. The district court accepted
Urista's no contest plea and found him guilty of the charges.

A presentence investigation (PSI) was conducted which determined that Urista had
a criminal history score of C. Accordingly, the applicable sentencing grid box for the
base offense of aggravated robbery was C-3 (a sentencing range of 96, 102, or 107
months). See K.S.A. 2008 Supp. 21-4704(a).

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The same district court judge who presided over Urista's plea hearing presided
over his sentencing. At sentencing, after the parties confirmed that the criminal history
score noted in the PSI report was accurate, the district court asked the State for its
sentencing recommendation. In response, the prosecutor stated, "Your Honor, there's a
written plea agreement in this case and the State's going to ask you to follow that written
plea agreement." The prosecutor then proceeded to give an extensive statement regarding
Urista's prior juvenile adjudications, his affiliation with a street gang, his current
convictions, and information contained within the victim impact statements submitted to
the court. In addition to this information, the prosecutor also made several statements
expressing a negative and fatalistic opinion of Urista. The prosecutor's statements
included the following:

 "I've had the unique opportunity to prosecute [Urista] as a juvenile. I
know a lot about Mr. Urista. He's a very dangerous young man. Unless
he changes his ways, one of two things is going to happen to him. One,
he's going to kill somebody, and he's lucky he didn't do it this time, or
somebody's going to kill him."

 "This young man has absolutely no remorse, number one. This young
man has absolutely no compassion or any kind of sympathy or empathy.
He has no feelings about his victims. He just continually and continually
does these very violent acts."

 "And this young man could care less. He could care less the havoc that
he has wreaked on this community."

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 "And, Your Honor, he may be young in chronological age and maybe
even look young physically to you, but I can assure you that this is a
young man who is extremely street savvy, and has absolutely no qualms
about shooting somebody. He is a menace to this community, he is a
danger to this community."

 "He comes from a very good family. His parents are sitting in the back
of the courtroom and they have never missed a court hearing from the
very first time I prosecuted this young man when he was 14 years old.
They never missed one court hearing. They have tried their best to do
what's right for this young man, and he has essentially spit in their face.
He has had every opportunity, every opportunity, to do right and he has
chosen to do wrong."

During her statement regarding Urista, the prosecutor again noted that the parties
had entered into a plea agreement and asked the district court to impose a controlling
sentence of 102 months' imprisonment (the standard sentence in the C-3 grid box)
pursuant to their agreement. The prosecutor repeated this sentencing recommendation
after making the comments at issue.

The district court asked the prosecutor if there were any victims present at the
sentencing hearing who wanted to address the court. The prosecutor said no but added
that the victims had asked her to address the court on their behalf. In response, the court
said it would consider the submitted victim impact statements. The district court then
asked for comments from defense counsel. Defense counsel had the following exchange
with the district court:
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"[DEFENSE COUNSEL]: Well, Your Honor, I'm not sure where to start. I
wasn't quite prepared to come in today and respond to what I consider to be
objectionable. And I would object to everything that came after 'We'd recommend you
follow the plea agreement.' After that, [the prosecutor] gives a ten-minute speech
essentially elaborating on the factual basis. I'm just afraid that comes dangerously close
to violating the plea agreement. So we would just object, understanding that the Court has
had a chance to read the victim statements and has had a chance to hear the factual basis.
"THE COURT: Other than comments made by, I believe a probation supervisor
during the juvenile proceedings, it is my recollection or belief that the prosecutor
provided essentially the same factual basis for some of these crimes at the time of the
plea. I was aware of the nature of the crimes, and so other than the comments about what
was said outside of my presence at a juvenile proceeding, I'm going to consider all of the
facts surrounding these crimes.
"[DEFENSE COUNSEL]: Absolutely, Your Honor, And Your Honor, you've hit
it on the head, Your Honor. Without going back through everything, yeah, there was just
a few things that were kind of made me take a pause.
"Your Honor, we would also join in the State's request that you follow the plea
agreement. 102 months is essentially eight and a half years that Mr. Urista will have to
think about the crimes that he's committed. And in speaking with him over the past
several months, I do get the sense that this is reality setting in for him. Eight plus years in
prison for a young man of 18, 17 when he went into custody, is half of the lifetime that
he's already lived, essentially."

Defense counsel made further comments in favor of imposing the recommended
sentence of 102 months' imprisonment. Ultimately, the district court, without stating its
reasons for doing so, rejected the sentence recommended by the parties and instead
imposed consecutive sentences for Urista's three aggravated robbery convictions (a base
sentence of 102 months' imprisonment followed by two 59-month prison sentences) and
concurrent sentences for the remaining felony convictions, resulting in a controlling
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sentence of 204 months' imprisonment. See K.S.A. 21-4720(b)(4) ("The total prison
sentence imposed in a case involving multiple convictions arising from multiple counts
within an information, complaint or indictment cannot exceed twice the base sentence.").
Additionally, the district court found that because Urista had used a deadly weapon
during the commission of the aggravated robbery and aggravated assault convictions, he
had to register as an offender pursuant to KORA after he is released from prison.

Urista timely appealed to the Court of Appeals, raising three issues: (1) the
prosecutor violated the plea agreement by making statements at sentencing which
undermined her sentencing recommendation; (2) based on Apprendi, the fact that he used
a deadly weapon during the commission of the aggravated robbery and aggravated assault
convictions—the basis for requiring him to register as an offender under KORA—should
have been proven to a jury beyond a reasonable doubt; and (3) because his prior
convictions were used to determine his sentences under the sentencing guidelines, the
existence of those convictions, based on Apprendi, should have been proven to a jury
beyond a reasonable doubt.

The Court of Appeals rejected each of Urista's arguments, concluding: (1) the
prosecutor did not violate the plea agreement because her statements were not sufficient
to negate her recommendation to the district court that it impose concurrent sentences; (2)
based on State v. Chambers, 36 Kan. App. 2d 228, 138 P.3d 405, rev. denied 282 Kan.
792 (2006), the fact that Urista used a deadly weapon during the commission of the
aggravated robbery and aggravated assault convictions did not have to be proved to a jury
beyond a reasonable doubt because registration under KORA did not increase Urista's
sentences beyond the prescribed statutory maximum; and (3) based on State v. Bonner,
290 Kan. 290, 305, 227 P.3d 1 (2010), and State v. Ivory, 273 Kan. 44, 41 P.3d 781
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(2002), there was no need for Urista's criminal history to be proven to a jury beyond a
reasonable doubt in order for the district court to use that criminal history to determine
Urista's sentence under the sentencing guidelines. See Urista, 45 Kan. App. 2d 93.

VIOLATION OF THE PLEA AGREEMENT

Urista contends that the prosecutor violated the plea agreement by making the
comments (quoted above) at sentencing. Urista argues that these comments undermined
the prosecutor's recommendation to the district court that it impose concurrent sentences,
resulting in a controlling sentence of 102 months' imprisonment. Accordingly, Urista
argues that his case should be remanded for resentencing before a different district court
judge. Whether the State breached the plea agreement presents a question of law over
which we exercise unlimited review. See State v. Antrim, 294 Kan. 632, 634, 279 P.3d
110 (2012).

Applicable Law

"[W]hen a plea rests in any significant degree on a promise or agreement of the
prosecutor, so that it can be said to be part of the inducement or consideration, such
promise must be fulfilled." Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 30
L. Ed. 2d 427 (1971). If the State fails to fulfill a promise it made in a plea agreement, the
defendant is denied due process. See State v. Wills, 244 Kan. 62, 67-68, 765 P.2d 1114
(1988); State v. Foster, 39 Kan. App. 2d 380, 390, 180 P.3d 1074, rev. denied 286 Kan.
1182 (2008); State v. McDonald, 29 Kan. App. 2d 6, Syl. ¶ 1, 26 P.3d 69 (2001). This is
true even if the record indicates that the district court's sentencing decision was not
influenced by the State's actions at sentencing. Foster, 39 Kan. App. 2d at 390.
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"[A] plea agreement is generally subject to contract principles" and, accordingly,
the "application of fundamental contract principles is generally the best means to fair
enforcement of a plea agreement, as long as courts remain mindful that the constitutional
implications of the plea bargaining process may require a different analysis in some
circumstances." State v. Copes, 290 Kan. 209, 217, 224 P.3d 571 (2010); see also State v.
Boley, 279 Kan. 989, 992-93, 113 P.3d 248 (2005) (noting the same). Kansas courts have
recognized that contracts, with the exception of at-will employment agreements, contain
implied covenants of good faith and fair dealing. Estate of Draper v. Bank of America,
288 Kan. 510, Syl. ¶ 13, 205 P.3d 698 (2009); see also Foster, 39 Kan. App. 2d at 388-89
(applying the implied covenants of good faith and fair dealing to a plea agreement).
Furthermore, "[t]he law implies that contractual provisions requiring the exercise of
judgment or discretion will be honestly exercised and faithfully performed." Lessley v.
Hardage, 240 Kan. 72, Syl. ¶ 7, 727 P.2d 440 (1986). Thus, parties to a plea agreement
must act fairly and in good faith in carrying out the promises they have made.

Obviously, the State can breach a plea agreement by explicitly failing to fulfill an
agreed-upon promise, such as failing to make a sentencing recommendation to the district
court that it promised it would make. See Santobello, 404 U.S. at 257-59 (State violated
plea agreement by recommending a 1-year sentence at sentencing; in the plea agreement,
State agreed not to make any sentencing recommendation); McDonald, 29 Kan. App. 2d
at 10 (State violated plea agreement by telling district court at sentencing that State did
not oppose granting defendant's downward dispositional departure motion but reminded
court of the factual findings it would have to make in order to grant motion; in plea
agreement, State promised to recommend 24 months' probation consecutive to the
defendant sentence for a parole violation). Cf. United States v. Benchimol, 471 U.S. 453,
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455-56, 105 S. Ct. 2103, 85 L. Ed. 2d 462 (1985) (government complied with plea
agreement by making sentencing recommendation it promised it would make at
sentencing and nothing more; plea agreement did not require the prosecutor to express
enthusiasm for the recommendation or to explain the reasons behind the recommendation
at sentencing); State v. Hill, 247 Kan. 377, 385-86, 799 P.2d 997 (1990) (plea agreement
required State to recommend controlling term of two consecutive life sentences; at
sentencing, prosecutor merely informed district court that PSI report contained parties'
recommended sentence; this court concluded that prosecutor's actions satisfied
requirement to make sentencing recommendation because same judge presided over plea
hearing and sentencing and was explicitly informed of recommended sentence at plea
hearing; furthermore, judge had copy of PSI report which contained recommended
sentence and judge made statements at sentencing which indicated he was aware of
recommended sentence).

But even when the State makes the sentencing recommendation that it promised it
would make, it can still breach the plea agreement by making additional comments at
sentencing that effectively undermine its sentencing recommendation. See State v.
Woodward, 288 Kan. 297, Syl. ¶ 3, 202 P.3d 15 (2009) ("The State can breach a plea
agreement by effectively arguing against the negotiated sentencing recommendation.
However, if the State actually makes the sentence recommendation that it promised, the
prosecutor's further comments in support of the recommended sentence do not breach the
plea agreement so long as the comments do not effectively undermine the
recommendation."); Hill, 247 Kan. at 378-79, 386 (plea agreement required State to
recommend controlling term of two consecutive life sentences; at sentencing, prosecutor
informed district court that PSI report contained not only recommended sentence, but
also victim impact statements, which prosecutor described as indicating victims believed
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no amount of time would be sufficient punishment; this court found that "[a]lthough the
additional comments by the prosecutor were questionable in light of the plea agreement,"
the materials in the PSI stated that victims accepted recommended sentence; accordingly,
this court concluded that "additional comments by the prosecutor were not tantamount to
making a recommendation contrary to the plea agreement"); Foster, 39 Kan. App. 2d at
387 ("A prosecutor does not need to be enthusiastic in making the recommendation
agreed upon in the plea bargain. [Citation omitted.] But the prosecutor must at least make
the recommendation, and the prosecutor may not so undermine the recommendation that
only lip service has been paid to it.").

Several factors are relevant for determining whether a prosecutor's additional
comments at sentencing undermine his or her sentencing recommendation, thereby
violating the plea agreement. Courts must consider how restrictive the terms of the plea
agreement are in preventing the prosecutor from making the comments at issue. For
example, in State v. Crawford, 246 Kan. 231, 787 P.2d 1180 (1990), the State agreed not
to oppose concurrent sentences or seek a controlling sentence of more than 20 years.
Notably, however, the State did reserve the right at sentencing to comment on sentencing
factors found in K.S.A. 21-4606 (criteria for fixing the minimum term of a sentence for a
crime committed prior to July 1, 1993). At sentencing, the prosecutor did not oppose
concurrent sentences or request more than a 20-year controlling term, but the prosecutor
did emphasize several sentencing factors in K.S.A. 21-4606 that were unfavorable to the
defendant. On appeal, this court held that the prosecutor's statements did not violate the
plea agreement because the State specifically reserved its right to comment on the K.S.A.
21-4606 factors and the State did, in fact, make the sentencing recommendations that it
promised. Furthermore, the court noted that unlike the comments at issue in United States
v. Grandinetti, 564 F.2d 723 (5th Cir. 1977) (prosecutor expressed reservations at
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sentencing about concurrent sentences being imposed pursuant to plea agreement), the
prosecutor's comments did not reach the level of effectively arguing against concurrent
sentences being imposed. Crawford, 246 Kan. at 236-37.

In State v. Johnson, 258 Kan. 100, 899 P.2d 484 (1995), the State agreed to take
no position at sentencing as to whether the district court should impose concurrent or
consecutive sentences. At sentencing, the prosecutor provided a detailed factual account
supporting the defendant's convictions for murder and aggravated kidnapping. After
doing so, the prosecutor began to comment on how the factors of K.S.A. 21-4606 applied
to the case. Before she could get into the merits of her argument, however, defense
counsel objected, and the district court sustained the objection. The prosecutor then
quickly wrapped up her statement. On appeal, this court rejected the defendant's
argument that the prosecutor's comments essentially advocated for consecutive sentences
in violation of the plea agreement. This court held that the prosecutor's statements did not
violate the plea agreement because the State did not negotiate away its right to speak at
the sentencing hearing. We stated:

"In speaking to the court, the State had the right to and did state the extent of defendant's
participation in the crimes. A less than truthful soft pedaling or whitewashing of the
extent of defendant's participation in stating the facts to the court would have been
inappropriate. On the other hand, editorializing on the facts could be considered as
urging consecutive over concurrent sentences, the only issue before the court at
sentencing as both offenses were class A felonies.
"In reviewing the prosecutor's comments themselves and also in their proper
context within the sentencing proceeding, we conclude the comments were not
tantamount to making a recommendation contrary to the plea agreement." (Emphasis
added.) Johnson, 258 Kan. at 107.

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See also Foster, 39 Kan. App. 2d 380, Syl. ¶ 3 ("A prosecutor may present information at
sentencing that is relevant to the decisions the judge is required to make.").

Additionally, in Antrim, the State agreed to recommend a life sentence with a
mandatory minimum term of 25 years' imprisonment on each count (three counts of
aggravated indecent liberties with a child) with the sentences to run concurrently. The
plea agreement specifically recognized that although the defendant was "'free to seek any
alternative sentence allowed by law,'" the State would oppose any such effort. Antrim,
294 Kan. at 633. At sentencing, the defendant moved for a departure sentence and
supported his motion by presenting testimony from a clinical psychologist. As expected,
the prosecutor cross-examined the clinical psychologist. Following the clinical
psychologist's testimony, the district court proceeded directly to sentencing. The court
expressly requested that the State incorporate its argument against the motion for
departure into its recommendation for disposition. The defendant did not object to this
procedure, and the prosecutor stated:

"'Judge, I'm asking the Court to follow the plea agreement. This is a situation
where the defendant has had some concessions. We dismissed some counts for this plea,
three counts of aggravated indecent liberties. I'm asking the Court to run the counts
concurrently. In the end it's one life sentence with a minimum of 25 years' incarceration.
. . . .
"'He has now perpetuated through his own daughter exactly what [the clinical
psychologist] has diagnosed the defendant with, which is she's going to have difficulty in
her future. This has changed her life by his act. The defendant can say all he wants. He
didn't force her. He asked and she gave in. She was 7. A 7-year-old does not give in to
sexual requests.
"'I'm asking the Court to follow this plea agreement, Judge.'" Antrim, 294 Kan. at
633.
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The district court denied the defendant's motion to depart and decided not to
follow the parties' plea agreement, ultimately imposing consecutive life sentences with a
mandatory minimum term of 25 years' imprisonment on each count. On appeal, the
defendant argued that the State violated the plea agreement by effectively arguing against
concurrent sentences. As support for his argument, the defendant focused on the
prosecutor's cross-examination of the clinical psychologist and the prosecutor's
subsequent comment that the defendant "'perpetuated through his own daughter exactly
what [the clinical psychologist] has diagnosed the defendant with, which is she's going to
have difficulty in her future.'" Antrim, 294 Kan. at 634. We rejected the defendant's
argument based in part on the fact that the plea agreement specifically allowed the State
to oppose the defendant's request for a departure sentence. We stated:

"Consistent with the plea agreement, the prosecutor cross-examined the expert and
argued against the expert's conclusions. Moreover, the court specifically requested that
the prosecutor combine his argument against the motion for departure with the State's
recommended disposition, and the defendant did not object to this procedure.
. . . .
"[T]he plea agreement at issue here required the State to recommend concurrent
sentences, and the prosecutor explicitly twice made that recommendation. But the
agreement also indicated that the State would oppose any attempt by [the defendant] to
seek an alternative sentence, and the prosecutor acted in accordance with that agreement
by opposing [the defendant's] motion for a departure from the mandatory minimum
sentence of Jessica's Law. Under these circumstances, we conclude the State did not
breach the plea agreement." Antrim, 294 Kan. at 635-36.

Crawford, Johnson, and Antrim establish that when the terms of a plea agreement
require a prosecutor to make a sentencing recommendation but otherwise allow the
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prosecutor to discuss relevant information at sentencing (e.g., facts regarding the
convictions or application of sentencing factors) or to argue against the defendant's
request to receive a lesser sentence than what was agreed to in the plea agreement, then
the prosecutor's statements at sentencing addressing the relevant information or opposing
the lesser sentence will likely be viewed as proper comments and not as effectively
undermining the sentencing recommendation.

Similarly, prior cases indicate that comments will likely not be construed as
undermining the recommended sentence if they are made in response to defense counsel's
attempt at sentencing to portray the defendant in a favorable light. In Woodward, the
defendant agreed to plead guilty to kidnapping, two counts of sexual exploitation of a
child, rape, indecent liberties with a minor, and felony murder. In exchange, the State
agreed to recommend that concurrent sentences be imposed for all the convictions, other
than felony murder, resulting in a controlling sentence of life. For the felony-murder
conviction, the State would recommend a consecutive sentence of 10 years to life.
Woodward, 288 Kan. at 298-301.

At sentencing, defense counsel spoke first, describing her client in a favorable
manner and indicating that the victims' families had been consulted about the sentence
recommendation and had agreed to it. Defense counsel asked the district court to follow
the plea agreement but also asked that the court make provisions so the defendant could
get treatment. After defense counsel finished, the defendant's wife spoke, also describing
the defendant in a favorable manner. The prosecutor then made her statement to the court,
asking that the court impose the parties' recommended sentence. Notably, the prosecutor
also made comments in response to defense counsel's statements. This court provided a
summary of the prosecutor's comments:
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"The prosecutor commenced by clarifying that the sentencing recommendation was that
of the district attorney's office, not that of the victims. The prosecutor then reminded the
judge, who had also presided at trial, of the heinous nature of the offenses and the losses
suffered by the victims' families. She referenced the [defendant's] diagnosis of pedophilia
and opined that 'the help that can be best afforded to [the defendant] is to make him not
dangerous to the community and not dangerous to himself by incarcerating him.' The
prosecutor pointed to facts that called into question the defense statements that [the
defendant] was a 'good father.' She described circumstances that refuted the assertion that
the killing was accidental, such as [the defendant's] failing to call for emergency help,
throwing the child's body in a ditch, and hiding the homicide for 5 years. She argued that
[the defendant's position as] a law enforcement officer actually made the circumstances
more egregious because of the trust that position should engender." Woodward, 288 Kan.
at 302.

Ultimately, the district court declined to impose the recommended sentence and instead
imposed a controlling sentence of life plus a consecutive sentence of 30 years to life.

On appeal, the defendant argued that the prosecutor, by making the negative
comments described above, effectively undermined the sentencing recommendation. This
court rejected the defendant's argument, noting that when the context of the entire
sentencing hearing was considered, it was clear that the prosecutor's arguments were

"directly tailored to address the defense's attempt to cast [the defendant] in a favorable
light. The plea-bargained recommended sentence was not the minimum which the court
could impose. If the sentencing court had found the defense's proffered mitigation to be
compelling, it was not precluded from doing something less than recommended, such as
running all of the convictions concurrently. [Citation omitted.] In that context, the State
was free to argue why the recommended sentence was also the most appropriate sentence
19



to impose under the circumstances. The plea agreement did not require the prosecutor to
ignore the defense's attempts to minimize [the defendant's] culpability.
"Accordingly, we find that the prosecutor made an unequivocal recommendation
that the sentencing court impose a sentence of life plus 10 years to life, as provided in the
plea agreement. Nothing the prosecutor said at the sentencing hearing was intended to
undermine the State's recommendation or to suggest that the sentencing court impose a
harsher sentence." Woodward, 288 Kan. at 302-03.

Notably, Woodward's reasoning (i.e., statements made in response to defense
counsel's attempt to cast the defendant in a favorable light will not be construed as
undermining the recommended sentence) provided an additional basis in Antrim for this
court to conclude that the statements at issue in that case were proper. See Antrim, 294
Kan. at 635 (based on Woodward and the language of the plea agreement allowing State
to oppose any attempt by the defendant to seek a lesser sentence than what was agreed to
by the parties, prosecutor acted appropriately when he made statements at sentencing in
response to defense counsel's argument in support of granting departure motion).

Further, based on the Court of Appeals decision in Foster and this court's decision
in Antrim, the level of discretion the district court has to impose the recommended
sentence is a factor to consider when deciding whether a prosecutor effectively argued
against the recommended sentence at sentencing. In Foster, the defendant pleaded guilty
to aggravated assault, a severity level 7 person felony, in exchange for the State's promise
to recommend probation if the defendant's criminal history score was, at the most, a C.
Ultimately, it was determined that the defendant had a criminal history score of C,
placing him in a presumptive probation box. But, because the defendant used a handgun
to commit the aggravated assault, K.S.A. 21-4704(h) provided that the defendant could
only receive probation if the district court specifically found that probation would serve
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community safety interests by promoting the defendant's reformation. State v. Foster, 39
Kan. App. 2d 380, 380-82, 180 P.3d 1074, rev. denied 286 Kan. 1182 (2008).

At sentencing, the prosecutor commented first. Although the prosecutor
recommended probation, she provided generally negative information about the
defendant, and she never suggested that the district court could make the findings
required to grant probation. Ultimately, the district court declined to place the defendant
on probation and instead imposed a prison sentence of 27 months.

On appeal, the Court of Appeals concluded that the prosecutor's comments
undermined her sentencing recommendation and, thus, violated the plea agreement. The
court stated:

"[The] prosecutor said that she recommended probation, but the words she used
[at sentencing] do not meet the minimum requirements for a recommendation.
Recommend means 'to praise or commend (one) to another as being worthy or desirable,'
or 'to make (the possessor, as of an attribute) attractive or acceptable.' American Heritage
Dictionary 1460 (4th ed. 2000). The prosecutor here did not state anything that would
cause an objective person to conclude that probation was worthy, desirable, attractive, or
even acceptable.
"A prosecutor does not need to be enthusiastic in making the recommendation
agreed upon in the plea bargain. [Citation omitted.] But the prosecutor must at least make
the recommendation, and the prosecutor may not so undermine the recommendation that
only lip service has been paid to it. In our case, the recommendation of probation was
meaningless unless the trial court could make the finding required by statute that
community safety interests would be promoted through offender reformation if [the
defendant] were placed on probation. The prosecutor never said that such a finding would
be proper in [the defendant's] case and provided information that appears to the contrary.
That breaches the plea agreement." Foster, 39 Kan. App. 2d at 386-87.
21




The Foster panel made clear that its decision should not be construed as
precluding a prosecutor from presenting negative information about a defendant at
sentencing even if the prosecutor promised to make a sentencing recommendation
pursuant to a plea agreement. If the information is relevant to decisions the district court
must make, then the information should be presented at sentencing. To illustrate this
point, the panel noted that the prosecutor in its case properly requested a no-contact order
at sentencing and presented information to support granting that order. But the panel
noted that because this information could indicate that placing the defendant on probation
would not serve community safety interests (leading the court to reject the recommended
sentence), the prosecutor had a duty to provide the district court with some rationale to
support placing the defendant on probation. Because the prosecutor did not even attempt
to do this at sentencing, the Foster panel concluded that her statements at sentencing
undermined her sentencing recommendation and, thus, violated the plea agreement.
Foster, 39 Kan. App. 2d at 389-90.

In State v. Antrim, 294 Kan. 632, 279 P.3d 110 (2012), the defendant relied on
Foster to argue that the prosecutor's statements at sentencing effectively undermined the
recommended sentence. This court, however, found that Foster was distinguishable
because the district court in that case could not impose the sentence recommended in the
plea agreement without making an additional factual finding. In contrast, the district court
in Antrim could have imposed the parties' recommended sentence (concurrent sentences)
based solely upon their recommendations at sentencing. By making this distinction
between the two cases, we suggested in Antrim that if a district court has limited
discretion to impose the recommended sentence (e.g., it must make specific factual
findings before it can impose the recommended sentence), then the possibility increases
22



that improper comments by the prosecutor at sentencing will be construed as effectively
undermining the recommended sentence. See Antrim, 294 Kan. at 635.

Analysis

Under the plea agreement in this case, the prosecutor agreed to recommend at
sentencing that the district court impose a standard sentence for the base offense
(aggravated robbery) and impose concurrent sentences for Urista's other crimes, resulting
in a controlling sentence of 102 months' imprisonment. Furthermore, both parties agreed
not to seek a disposition and/or durational departure sentence.

Clearly, the terms of the plea agreement show that the State did not negotiate away
its right to speak at the sentencing hearing. Contra State v. Peterson, 296 Kan. ___ (No.
102,198, filed this day), slip op. at 3 (State agreed to stand silent at sentencing except to
correct misstatements of fact). Pursuant to Johnson and Foster, the prosecutor, in
addition to making the sentencing recommendation, could also present relevant
information (a factual account of the crimes and statements from the victims regarding
the crimes) at sentencing to aid the district court in making its decision regarding what
sentence to impose. See Johnson, 258 Kan. at 107 ("In speaking to the court, the State
had the right to and did state the extent of defendant's participation in the crimes. A less
than truthful soft pedaling or whitewashing of the extent of defendant's participation in
stating the facts to the court would have been inappropriate."); Foster, 39 Kan. App. 2d
380, Syl. ¶ 3 ("A prosecutor may present information at sentencing that is relevant to the
decisions the judge is required to make.").

23



But the comments at issue in this case do not constitute a mere factual description
of the crimes or a summary of the victims' statements. Instead, the comments at issue
here were an example of the prosecutor giving her personal opinion regarding Urista
based upon her prior involvement with him, her review of the facts, and the victims'
statements. In other words, the prosecutor not only engaged in providing a negative
editorial, but a particularly grave summation regarding Urista based on these
observations. Such comments can be viewed as effectively arguing against the parties'
recommended sentence. See Johnson, 258 Kan. at 107 (noting that in its case,
"editorializing on the facts could be considered as urging consecutive over concurrent
sentences" in violation of the plea agreement). Based on the terms of the plea agreement,
we find the comments at issue here were improper under the agreement.

Furthermore, the prosecutor's statements were not made in response to arguments
presented by the defense; the prosecutor spoke first at sentencing. Thus, this case is
distinguishable from Antrim and State v. Woodward, 288 Kan. 297, 202 P.3d 15 (2009),
where we found that the comments at issue in those cases did not violate the plea
agreement because they were made in response to defense counsel's arguments.
Additionally, Urista, in compliance with the plea agreement, did not file a departure
motion prior to sentencing or ask for a sentence less than the recommended sentence of
102 months' imprisonment. Although the district court had discretion to impose a
mitigated sentence of 96 months, the comments here cannot be construed as the
prosecutor's attempt to preemptively argue against imposing a sentence less than the
recommended sentence. Consequently, there is nothing in the record to explain why the
prosecutor thought it was necessary to make the comments at issue.

24



Though the district court had the discretion to impose the recommended sentence
based purely on the parties' recommendations at sentencing, see K.S.A. 21-4720(b), we
find that the prosecutor's comments about Urista effectively undermined the sentencing
recommendation. The prosecutor's comments certainly did not provide any support for
imposing concurrent sentences. In fact, they implicitly convey to an objective person that
the recommended sentence may not be adequate punishment for Urista's crimes.
Furthermore, we cannot imagine any substantive difference between the comments the
prosecutor made here (supposedly in support of the recommended sentence) and
comments that would be explicitly made in support of imposing a sentence greater than
the recommended sentence. Because the prosecutor's comments were unprovoked and
unnecessary, one would have to assume that her intention for making the comments was
to convince the district court to impose a sentence greater than the recommended
sentence. Thus, we are convinced that the prosecutor did not act in good faith at
sentencing. Though she made the sentencing recommendation, her additional comments
at sentencing indicate that she merely paid lip service to the recommendation.
Accordingly, we hold that the prosecutor violated the plea agreement by making the
statements at issue.

As mentioned above, when a plea agreement is breached, the defendant is denied
due process. McDonald, 29 Kan. App. 2d 6, Syl. ¶ 1. This is true even if the sentencing
judge was not influenced by the State's presentation at sentencing. See Foster, 39 Kan.
App. 2d at 390. Accordingly, if the State breaches its plea agreement promise—and the
defendant raises a timely objection to the breach—such a breach will constitute harmless
error only if a court can say beyond a reasonable doubt that the State's promise had little,
if any, influence on the defendant's decision to enter into the plea agreement. State v.
Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). See
25



Puckett v. United States, 556 U.S. 129, 140, 129 S. Ct. 1423, 173 L. Ed. 2d 266 (2009)
(suggesting that harmless-error analysis applies to government's breach of plea agreement
when defendant raised contemporaneous objection before district court regarding
breach); McDonald, 29 Kan. App. 2d at 10-11 (explaining application of harmless-error
standard to breach of plea agreement); State v. McDaniel, 20 Kan. App. 2d 883, 888-89,
893 P.2d 290 (1995) (same).

The only consideration that the State offered in exchange for Urista's agreement to
enter no contest pleas to 15 crimes (including three counts of aggravated robbery) was its
promise to recommend concurrent sentences, resulting in a controlling term of 102
months' imprisonment. Needless to say, the State's promise to recommend concurrent
sentences played a significant role in Urista's decision to enter into the plea agreement.
Because this central promise of the plea agreement was breached by the prosecutor's
comments at sentencing—and Urista raised a timely objection at sentencing regarding the
comments—we find that the breach cannot be declared harmless. The appropriate
remedy—specific performance, as requested by Urista—is to vacate the sentence and
remand for a new sentencing hearing before a different district court judge with
directions that the State comply with the provisions of plea agreement at sentencing. See
Peterson, 296 Kan. ___, slip op. at 14-15; Foster, 39 Kan. App. 2d at 390; McDonald, 29
Kan. App. 2d at 11; McDaniel, 20 Kan. App. 2d at 889. Our decision to direct a new
sentencing hearing before a different judge in no way reflects on the district court judge
who originally sentenced Urista. The error here rests squarely with the State. The
appearance of judicial neutrality will be best served if the new sentencing hearing is
conducted by a different judge. See United States v. Melton, No. 11-5023, 2012 WL
5383294, at *1 n.1 (4th Cir. 2012 (unpublished opinion).

26



Because we vacate Urista's sentence and remand for a new sentencing hearing, we
do not address the other issues (related to sentencing) that he raises on appeal. See, e.g.,
State v. Montgomery, 295 Kan. 837, Syl. ¶ 2, 286 P.3d 866 (2012) (courts generally do
not decide moot questions or render advisory opinions).

We reverse the judgments of the Court of Appeals and the district court. The
sentence entered is vacated, and the case is remanded for a new sentencing hearing before
a different judge with directions that the State comply with the provisions of the plea
agreement.