State Of Washington, Respondent V. Ronald Macdonald, Appellant

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
RONALD WAYNE MACDONALD,
Appellant.
No. 69415-4-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	January 21, 2014
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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.
Because the plea agreement did not bind the investigating officer, we affirm.
Background
On June 11, 2012, the State charged MacDonald by amended information
with murder in the first degree for killing Arlene Roberts in 1978.1 	After the trial
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
MacDonald entered an Alford2 plea.
According to the plea, the parties agreed to recommend that MacDonald
serve 	16 	months 	of 	confinement. 	The 	State 	would 	recommend 	a 	5-year
suspended sentence, and MacDonald would recommend a 1-year suspension.3
At the sentencing hearing, the prosecutor requested a 5-year sentence
suspended on the condition that MacDonald serve 16 months of confinement.
The prosecutor then 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 clear to him that I don't want to know what he's going to
say. 	I have no idea what it will be. 	It doesn't do anything to affect
my recommendation. 	My recommendation 	is still solidly for 16
months because that's what the agreement was.[4]
The court permitted Tompkins to speak on behalf of the victim.
In his address to the court, Tompkins stated,
I feel obligated to ask for the 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[,] I know that you heard a
lot in the 3.5 hearing about what happened in Reno in our interview
of the defendant, but I also would like to introduce what happened
to the victim. 	And 	I don't think you saw those, and 	I'd like to
present those to you.
2 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162
(1970).
3 The parties recommended these sentences based upon former RCW
9.92.060 	(1967). 	Because the 	crime 	here 	took 	place 	in 1978, 	before 	the
enactment of the Sentencing Reform Act of 1981, chapter 9.94A RCW, the court
applied the sentencing rules in effect at that time.
4 Detective 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 that does breach the plea agreement." 	In overruling this objection, the court
explained, "In many cases, if not 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 I think Detective
Tompkins may take that role."
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 clear that I allowed Detective Tompkins to speak insofar as he is speaking
on behalf of the victim since there's not a victim advocate here today. . . .So I'll
take his comments as they pertain to his advocacy on behalf of the 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
seriously deprecate the nature of that crime, and would be an affront to justice as
well as the 	memory of Mrs. 	Roberts." 	The court noted that it would 	have
imposed the same sentence regardless of Tompkins'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
Court of Appeals.
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 of the 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's recommendation for a standard range sentence."8 	A prosecutor's breach
5 State v. Carreno-Maldonado. 135 Wn. App. 77, 83, 143 P.3d 343 (2006)
(citing State v. Sledge. 133 Wn.2d 828, 838, 947 P.2d 1199 (1997)).
6 Carreno-Maldonado, 135 Wn. App. at 83 (citing Sledge, 133 Wn.2d at
839).
7 Carreno-Maldonado, 135 Wn. App. at 83 (citing Sledge, 133 Wn.2d at
840; State v. 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 a plea agreement at sentencing violates due process.9 	Good motivations or a
reasonable justification do not excuse a breach.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, if any, including any victim impact
9 State v. Sanchez, 146 Wn.2d 339, 346, 46 P.3d 774 (2002).
10 Halsev, 140 Wn. App. at 320 (citing State v. Van Buren, 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" about the appropriate sentence to 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 in Sanchez did not purport to address the court on the victim's behalf.
Here, the prosecutor twice recommended a sentence in accordance 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 know what he would say and that
his statements would not affect the 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, 146 Wn.2d at 343.
13 Sanchez, 146 Wn.2d at 343.
14 Sanchez, 146 Wn.2d at 343.
15 Sanchez, 146 Wn.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 of the 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 of the Washington Constitution.
Conclusion
Because Tompkins addressed the court as an advocate of the victim and
not as an agent of the State, his statements did not constitute a breach of the
plea agreement. 	We affirm.
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WE CONCUR:
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