State v. Whitehawk

JOHNSON, Justice. This case was appealed from the trial court’s judgment sentencing Whitehawk to imprisonment for an indeterminate term not to exceed sixteen years for the crime of lewd conduct with a minor child under the age of sixteen years. We assigned the case to the Court of Appeals, which issued an opinion affirming the sentence. State v. Whitehawk, 116 Idaho 827, 780 P.2d 149 (Ct.App.1989). We granted review based on Whitehawk’s petition. We have reviewed and considered the briefs, the record, the transcript, the exhibits, and the opinion of the Court of Appeals. We have also listened to and considered the oral arguments of the parties that were presented to us. Based on this review and consideration, we concur with the opinion of the Court of Appeals, but offer a further explanation as to the basis of the decision to affirm the sentence. Because of its significance, we set forth below a copy of the plea bargain agreement. The handwritten additions to the agreement were added in open court before the agreement was signed by the prosecutor, the defense attorney and Whitehawk on the day Whitehawk pled guilty. [[Image here]] [1024] [[Image here]] [1025] [[Image here]] The agreement was stated to be made pursuant to I.C.R. 11(d)(1)(C) (a (C) agreement). In a (C) agreement the prosecuting attorney and the attorney for the defendant agree to a plea bargain by which the defendant will plead guilty and the prosecuting attorney will “agree that a specific sentence is the appropriate disposition of the case.” I.C.R. 11(d) (1987). Sections 4, 5 and 6 of the agreement state the elements of the specific sentence to which the parties agreed: a fine, a withheld judgment and probation. Section 8 of the agreement authprizes the trial court to refuse to accept the agreement and sentence Whitehawk the same as if the agreement had been entered into pursuant to I.C.R. 11(d)(1)(A), (C) or (D). Subdivision (A) of I.C.R. 11(d)(1) contemplates the prosecuting attorney agreeing to dismiss other charges in exchange for a guilty plea; subdivision (D) contemplates the prosecuting attorney agreeing “to any other disposition of the case.” [1026] To fill out the picture here, we need to inject subdivision (B) of I.C.R. 11(d)(1). In a (B) agreement the prosecuting attorney agrees to make a recommendation for sentencing or not to oppose the defendant’s request for a particular sentence, “with the understanding that such recommendation or request shall not be binding upon the court.” As we view the facts of this case, in light of these rules and of the colloquy between the trial court and Whitehawk at the time Whitehawk pled guilty, the trial court and the parties, in effect, treated sections 4, 5 and 6 of the agreement as a (B) agreement instead of a (C) agreement. This is the only meaning we can give to the statements of the trial court at the time the plea was tendered that Whitehawk would not be allowed to withdraw his plea after it was accepted. Not only did Whitehawk agree that he would not be allowed to withdraw his pleas, but both the prosecutor and the defense attorney confirmed this understanding. The Court of Appeals recited this colloquy. 116 Idaho at 828-29, 780 P.2d at 150-51. We reach this conclusion because I.C.R. 11(d)(2) includes these provisions: If the agreement is of the type specified in subdivision (d)(1)(A), (C) or (D), the court may accept or reject the agreement, or may defer its decision as to the acceptance or rejection until there has been an opportunity to consider the presentence report. If the agreement is of the type specified in subdivision (d)(1)(B), the court shall advise the defendant that if the court does not accept the recommendation or request the defendant nevertheless has no right to withdraw his plea. I.C.R. 11(d)(2) (1987). Only if the agreement is treated as a (B) agreement was it proper for the trial court to advise Whitehawk that he had no right to withdraw his plea if the trial court did not accept the sentence specified'in sections 4, 5 and 6 of the agreement. Since the parties acquiesced in this treatment, we are unwilling to treat the agreement as a (C) agreement. The trial court was not bound by the sentencing recommendations of the (B) agreement and was not required to give Whitehawk an opportunity to withdraw his guilty plea. With this explanation, we affirm the sentence based on the opinion of the Court of Appeals. BAKES, C.J., and BOYLE and McDEVITT, JJ., concur.