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State v. Blackwell12/7/1999
rt. In that light, we find the following language from the California Supreme Court instructive in helping the trial court make its determination:
Factors to be considered include who broke the bargain and whether the violation was deliberate or inadvertent, whether circumstances have changed between entry of the plea and the [present time], and whether additional information has been obtained that, if not considered, would constrain the court to a Disposition that it determines to be inappropriate.
People v. Mancheno, 654 P.2d 211, 214 (Cal. 1982). To these, we would also add a fifth factor: the particular wishes of the defendant. See Santobello, 404 U.S. at 267, 30 L. Ed. 2d at 436 (Douglas, J., Concurring) ("In choosing a remedy, however, a court ought to accord a defendant's preference considerable, if not controlling, weight inasmuch as the fundamental rights flouted by a prosecutor's breach of a plea bargain are those of the defendant, not of the State."). We therefore remand case number 97 CRS 6391 to the trial court to determine whether specific performance or rescission is the appropriate remedy.
We now turn to the Disposition of case numbers 97 CRS 6390 and 97 CRS 6421, dealing with felony murder and the assaults. Whichever remedy the trial court deems appropriate in case number 97 CRS 6391, the effect is necessarily the same as to these cases: defendant is entitled to a new trial. This is so because the violated plea agreement in 97 CRS 6391 was not only introduced as substantive evidence at defendant's trial, but became the backbone of the State's theory of prosecution. Thus, its violation amounted to prejudicial error, entitling defendant to a new trial.
In sum, then, if the trial court grants defendant specific performance of the plea agreement, defendant is still deemed guilty of felonious impaired driving and the misdemeanors, but the State must prosecute defendant again for felony murder and the assaults according to the terms and the spirit of the plea agreement. If the trial court grants defendant rescission, then the defendant is not only entitled to a new trial for felony murder and the assaults, but is also entitled to enter pleas of not guilty or otherwise as to felonious impaired driving and the misdemeanors.
In light of our holding as to the violation of the plea agreement, we need not address defendant's remaining assignments of error.
The defendant's record is despicable and his alleged acts here, monstrous. Bad facts should not make worse law and, above all, the State should not perpetrate the wrong. Judges, prosecutors, and attorneys should be held to higher standards of accountability and fairness.
Vacated and remanded.
Judge HUNTER concurs.
Judge WALKER Dissents.
WALKER, Judge, Dissenting.
I respectfully Dissent from the majority opinion which grants the defendant a new trial in case numbers 97 CRS 6390 and 97 CRS 6421, dealing with felony murder and felony assault.
The majority concludes that the State violated the plea agreement in 97 CRS 6391, which was introduced at defendant's trial, by allowing the State to use felonious impaired driving to prove felony assault, resulting in prejudicial error. I disagree.
Independent of the plea agreement and the charge of felonious impaired driving, the record contains overwhelming evidence, properly admitted, which showed that on this occasion the defendant was operating his vehicle in a reckless manner and drove his vehicle across the center line, striking the victim's vehicle. While operating his vehicle, the defendant was under the influence of alcohol, heroin and
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