Prosecutor must do more than refer to agreement to uphold plea bargain

Peter Maharry and Theresa Barr won in State v. Jones, No. 104,516 (Kan. June 12, 2015), obtaining a resentencing order in a Sedgwick County aggravated robbery prosecution. In particular, Ms. Jones argued that the state had failed to join in a recommendation for a downward dispositional departure, as promised in the plea agreement. A majority of the KSC agreed:

Since the plea agreement was referenced at the hearing, one could give the sentencing judge the benefit of the doubt that he would have inquired further if he did not know the agreement's terms.  But the Hill court relied on more than the sentencing court's statements demonstrating awareness of the agreement's terms, which is important because the State has the contractual duty here—not the court.

The prosecutor's conduct in Jones' case more closely resembles what we would expect of a prosecutor who agreed to stand silent as part of a plea agreement. And while the State's burden set by Hill is not high, the failure to openly express the State's agreed-to recommendation or direct the sentencing judge to the plea agreement's specific provisions that the State was bound to and ensure it was in the court's possession is the tipping point.

The prosecutor had an affirmative duty arising from the plea agreement to recommend a particular sentence, which is what Jones bargained for when she agreed to plead guilty as charged. And the only consideration she received in exchange for the plea was the State's promise to join in her efforts to be sentenced to probation rather than imprisonment.

Because the state failed to uphold its part of the agreement, the KSC remanded for resentencing.