723320MAJ

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Supreme Court of the State of Washington

Opinion Information Sheet

Docket Number: 72332-0
Title of Case: State of Washington
v.
Richard Harrison
File Date: 01/23/2003
Oral Argument Date: 11/21/2002


SOURCE OF APPEAL
----------------
Appeal from Superior Court,
King County;
98-1-03049-2
Honorable Michael C. Hayden, Judge.


JUSTICES
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Authored by Barbara A. Madsen
Concurring: Gerry L. Alexander
Charles Z. Smith
Charles W. Johnson
Richard B. Sanders
Bobbe J. Bridge
Tom Chambers
Susan J. Owens
Visiting Judge


COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
Sharon J. Blackford
Washington Appellate Project
Cobb Bldg
1305 4th Ave Ste 802
Seattle, WA 98101

Counsel for Respondent(s)
Prosecuting Atty King County
King County Prosecutor/Appellate Unit
1850 Key Tower
700 Fifth Avenue
Seattle, WA 98104

Andrea R. Vitalich
W554
516 Third Avenue
Seattle, WA 98104

James M. Whisman
King County Pros Office--Appellate Unit 1850 Key Tower
700 5th Ave #1850
Seattle, WA 98104

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE of WASHINGTON, )
)
Respondent, ) No. 72332-0
)
v. ) En Banc
)
RICHARD HARRISON, )
)
Petitioner. ) Filed January 23, 2003
)

MADSEN, J. -- We granted review of this case to determine whether, when
the State breaches a plea agreement and the defendant is granted the remedy
of specific performance, the sentencing court on remand is bound by the
original sentencing court's determination to impose an exceptional
sentence.
Petitioner Harrison pleade guilty after reaching an agreement with the
State to treat two of Harrison's prior convictions as the same criminal
conduct, resulting in an offender score of seven. At sentencing, the State
breached its agreement by recommending a sentence based on an offender
score of eight rather than a score of seven. The trial court accepted the
State's characterization of Harrison's history and imposed what amounted to
an exceptional sentence. The Court of Appeals reversed the original
sentence and granted Harrison the remedy of specific performance.
Accordingly, the case was remanded for a new sentencing hearing. State v.
Harrison, noted at 100 Wn. App. 1049 (2000) (Harrison I). At the second
sentencing hearing, the trial court agreed with the State's recommendation
that Harrison's prior convictions constituted the same criminal conduct and
that his offender score was seven. The trial court declined, however, to
consider Harrison's argument against an exceptional sentence, holding that
it was bound by either the 'law of the case' doctrine or collateral
estoppel from reconsidering that issue. Harrison appealed, and the Court
of Appeals affirmed. State v. Harrison, noted at 110 Wn. App. 1017 (2002)
(Harrison II).
We hold that the remedy of specific performance entitles the defendant
to a reversal of the original sentence and a de novo sentencing hearing in
which the State will abide by its plea agreement. The trial court,
furthermore, is free to exercise its discretion regarding imposition of an
exceptional sentence. We reverse the Court of Appeals and remand for
resentencing.

PROCEDURAL HISTORY
The State charged Harrison with two counts of custodial assault.1 In
exchange for a guilty plea, the State agreed to recommend two consecutive
terms of 43 months based on an offender score of seven. An offender score
of seven yields a standard sentencing range of 33-43 months for each
offense.
At Harrison's first sentencing hearing, the State did not abide by the
plea agreement. The State had counted two of Harrison's prior convictions
as the same criminal conduct, but the Department of Corrections (DOC)
counted them separately to arrive at an offender score of eight rather than
seven. An offender score of eight raises the standard sentencing range for
each crime to 43-57 months. The State adopted the DOC's calculation,
abandoning its plea agreement, and recommended an exceptional sentence
consisting of two consecutive terms of 57 months rather than 43 months.
The trial court agreed with the State's offender score calculation and
additionally found that the facts warranted the imposition of an
exceptional sentence of consecutive 57-month terms for each count of
custodial assault.2
Harrison appealed, arguing that the State breached its plea bargain.
In an unpublished opinion, Division I of the Court of Appeals reversed.
Harrison I, slip op. at 7. Harrison requested the remedy of 'specific
performance' which required the State on remand to make its promised
recommendation. Id. at 3 (citing State v. Miller, 110 Wn.2d 528, 536, 756
P.2d 122 (1988)). He argued that such remedy required a new sentencing
hearing where the State would abide by its agreement to recommend a
sentence based upon an offender score of seven. The State disagreed,
contending that 'specific performance' required it to recommend sentences
of 43 months under a 'correct' offender score of eight. The Court of
Appeals responded that '{t}he State's arguments overlook the fact that
there is nothing 'incorrect' about . . . an offender score of 7.' Id. at
4.
At the second sentencing hearing the State made its promised
recommendation. Harrison did not present any new facts but argued against
the imposition of an exceptional sentence. The trial court declined to
consider Harrison's argument, holding that the judge's findings with
respect to the exceptional sentence imposed in the first sentencing hearing
were the 'law of the case.' The judge explained:
In my view, those are law of the case for me.
The only thing that has changed now is the difference in the offender
score, and it's being sent back to me on remand to correct that mistake, so
I'm abiding by what {the judge} did.
I will not change anything that she did in terms of what she stated as the
bases for the exceptional sentence.
I'm not saying I agree with them, but I'll let them stand, and the Court of
Appeals can decide whether or not they're appropriate or not.

Verbatim Report of Proceedings (Nov. 9, 2000) at 28-29. The judge then
imposed an exceptional sentence of consecutive 43-month terms based on an
offender score of seven, clarifying in a motion for reconsideration that
the theory underlying his refusal to rule on the exceptional sentence was
either the doctrine of the 'law of the case' or collateral estoppel.
Harrison once again appealed, and the Court of Appeals affirmed the
trial court in an unpublished opinion. Harrison II, slip op. at 1. The
court ruled that on remand the trial court was estopped from deciding the
issue of whether an exceptional sentence was appropriate. Relying on State
v. Collicott, 118 Wn.2d 649, 827 P.2d 263 (1992), the court ruled that
'{o}nce the trial court has considered the propriety of an exceptional
sentence, it is estopped from revisiting the issue at a later sentencing
hearing.' Harrison 11, slip op. at 3. The Court of Appeals also held that
the 'breach of a plea agreement does not mean that Harrison is entitled to
relitigate every issue already decided by the court, particularly where the
issue he wants to revisit is unrelated to the breach.' Id. at 6.
This court granted Harrison's petition for review at 147 Wn.2d 1002
(2002).
ANALYSIS
Plea agreements are contracts, and the law imposes upon the State an
implied promise to act in good faith. State v. Sledge, 133 Wn.2d 828, 839,
947 P.2d 1199 (1997). Because plea agreements concern fundamental rights
of the accused, they also implicate due process considerations that require
a prosecutor to adhere to the terms of the agreement. Id. (citing
Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427
(1971)); United States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986) (the
defendant's underlying contract right is constitutionally based and
therefore reflects concerns that differ fundamentally from and run wider
than those of commercial contract law).
This court has recognized two possible remedies where the State breaches a
plea agreement. Miller, 110 Wn.2d at 531. The defendant has the choice to
either withdraw his plea and be tried anew on the original charges or
receive specific performance of the agreement. Id. Because a plea
agreement is analogous to a contract, the defendant is entitled to a remedy
which restores him to the position he occupied before the State breached.
State v. James, 35 Wn. App. 351, 355, 666 P.2d 943 (1983). Furthermore,
'the defendant's choice of remedy controls, unless there are compelling
reasons not to allow that remedy.' Miller, 110 Wn.2d at 535.
In this case, the Court of Appeals granted Harrison's request for
specific performance. Harrison I, slip op. at 7. That remedy requires the
State to make its promised recommendation at a new sentencing hearing. In
re Pers. Restraint of Powell, 117 Wn.2d 175, 199, 814 P.2d 635 (1991)
(addressing the definition of specific performance of plea agreement where
the Indeterminate Sentence Review Board would decide appropriate minimum
sentence); see also State v. Van Buren, 101 Wn. App. 206, 218, 2 P.3d 991
(2000); State v. Henderson, 99 Wn. App. 369, 379, 993 P.2d 928 (2000).
While the State must uphold its end of the plea agreement on remand, the
court retains the ultimate decision on sentencing. Powell, 117 Wn.2d at
200.
Washington cases generally follow the United States Supreme Court's
recommendation that the petitioner should be resentenced by a different
judge when specific performance is the elected remedy for the State's
breach. Santobello, 404 U.S. at 263; see Sledge, 133 Wn.2d 828; State v.
Van Buren, 112 Wn. App. 585, 49 P.3d 966 (2002); State v. Williams, 103 Wn.
App. 231, 239, 11 P.3d 878 (2000); James, 35 Wn. App. at 356.
The question in this case is whether the remedy of specific
performance is limited by collateral estoppel or the 'law of the case'
doctrine. In Harrison I, the court granted the remedy of specific
performance which required a reversal of Harrison's prior sentence and
remand for resentencing in which the State would recommend a sentence based
on an offender score of 7. Harrison I, slip op. at 7. Harrison claims
that such a remedy entitles him to a de novo sentencing hearing, placing
him in the same position that he occupied before the State breached the
plea agreement. James, 35 Wn. App. at 355. He argues that the trial court
erred in holding that it was bound by decisions made at the first
sentencing hearing and that he has yet to have the one fair sentencing
hearing to which he is entitled.
Relying on State v. Mannhalt, 68 Wn. App. 757, 760, 845 P.2d 1023 (1992),
the State contends that the breach of a plea agreement does not mean
Harrison is entitled to relitigate every issue already decided,
particularly where the issue he wants to revisit is unrelated to the beach.
In Mannhalt, the defendant was convicted of conspiracy, six counts of
robbery, one count of attempted robbery, one count of possession of stolen
property in the first degree, and three counts of possession of stolen
property in the second degree. Id. at 759. The defendant appealed the
trial court's denial of his motion to suppress evidence, and the Court of
Appeals affirmed. Id; see also State v. Mannhalt, 33 Wn. App. 696, 658
P.2d 15 (1983). Mannhalt subsequently sought and was denied habeas corpus
relief in federal district court. Mannhalt, 68 Wn. App. at 759. On
appeal, the Ninth Circuit overturned Mannhalt's conviction based on an
attorney conflict of interest that occurred during the trial. Id. at 761-
62; see also Mannhalt v. Reed, 847 F.2d 576 (9th Cir. 1988). The court,
however, specifically found that the conflict did not affect the litigation
of pretrial suppression issues. Mannhalt, 68 Wn. App. at 761-62.
The State recharged Mannhalt. During pretrial hearings, the superior court
ruled that Mannhalt could not relitigate his motion to suppress evidence
because it had been adequately litigated before the first trial and was res
judicata as to the second. Id. Mannhalt was convicted and appealed,
arguing that he was entitled to relitigate all pretrial issues since the
Ninth Circuit had vacated his conviction. Id. at 760-61. The Court of
Appeals disagreed, reasoning first that the pretrial issues had been
decided and affirmed on appeal making those rulings the 'law of the case.'
Id. at 763. The court also explained that because the Ninth Circuit
specifically held that the pretrial litigation was not tainted by the
conflict that occurred during trial, the defendant was not entitled to
relitigate the pretrial issues. Id. at 763-64.
The State urges Mannhalt as authority for limiting the issues that can
be considered on remand in this case. The State's reliance on Mannhalt is
misplaced. Initially, in Mannhalt the pretrial issues were raised and
affirmed on appeal. Thus, on remand the pretrial rulings were the 'law of
the case.' Here, the trial court's imposition of an exceptional sentence
was never challenged or decided on appeal. Additionally, Mannhalt actually
supports Harrison's position that he is entitled to relitigate the portion
of his trial that was tainted by the State's breach. Just as Mannhalt
received the remedy of a new trial because his original trial was tainted
by an attorney conflict of interest, Harrison is entitled to the remedy of
a completely new sentencing hearing because the original sentencing was
tainted by the State's breach.
As noted, the purpose of a remedy when the State breaches a plea agreement
is to restore the defendant to the position he held before the breach,
James, 35 Wn. App. at 355, and before the breach, Harrison had been
convicted but not sentenced. Specific performance requires a reversal of
the original sentence and remand for a new sentencing, preferably before a
different judge, where the State will make its promised recommendation and
the judge will exercise its sentencing discretion.
The State argues, though, that this court's decision in State v. Collicott,
118 Wn.2d 649, 827 P.2d 263 (1992) (Collicott II) is to the contrary and
holds that once the trial court has considered the propriety of an
exceptional sentence, it is estopped from revisiting the issue at a later
sentencing hearing. We disagree.
In State v. Collicott, 112 Wn.2d 399, 771 P.2d 1137 (1989) (Collicott I),
the defendant originally pleaded guilty to burglary, rape, and kidnapping.
Collicott II, 118 Wn.2d at 650. At sentencing, the trial court concluded
that the crimes constituted the same criminal conduct and specifically
declined to impose an exceptional sentence. Id. at 661. The Court of
Appeals reversed and held that the crimes did not encompass the same
criminal conduct. Id. at 651. This court disagreed and reversed. Id.
However, this court also found that the trial court had miscalculated the
offender score and remanded for the trial court ''to redetermine the
petitioner's offender score.'' Id. at 651-52 (quoting Collicott I, 112
Wn.2d at 412).
Following resentencing, the case once again came before this court for
review. Collicott II, 118 Wn.2d 649. This time the court held that
Collicott I was incorrect and that the crimes did not encompass the same
criminal conduct. Id. at 657-58. The lead opinion went on to conclude
that because the first trial court had specifically declined to impose an
exceptional sentence, collateral estoppel barred the second court from
imposing an exceptional sentence. Id. at 661-64.
The lead opinion in Collicott II did not command a majority of the court on
the collateral estoppel issue. Five justices concurred in the analysis of
'same criminal conduct' but specifically disavowed the discussion of
collateral estoppel as unnecessary to the decision. Id. at 670 (concurring
opinion of Durham, J.). Accordingly, the discussion of collateral estoppel
is dicta and does not prevent the trial court in this case from considering
the imposition of an exceptional sentence on remand. In any event,
Collicott II is distinguishable because it did not deal with the breach of
a plea agreement by the State.
The State next argues that this court's collateral estoppel cases support
its position. Collateral estoppel, or issue preclusion, does apply in
criminal cases, and it precludes the same parties from relitigating issues
actually raised and resolved by a former verdict and judgment. State v.
Bryant, 146 Wn.2d 90, 98, 42 P.3d 1278 (2002); State v. Williams, 132 Wn.2d
248, 253-54, 937 P.2d 1052 (1997); State v. Peele, 75 Wn.2d 28, 30, 448
P.2d 923 (1968). The policy behind collateral estoppel is to 'prevent{}
relitigation of an issue after the party against whom the doctrine is
applied has had a full and fair opportunity to litigate his or her case.'
Nielson v. Spanaway Gen. Med. Clinic, Inc., 135 Wn.2d 255, 262, 956 P.2d
312 (1998). Nonetheless, Washington courts follow federal precedent that
in criminal cases, collateral estoppel is not to be applied with a
'hypertechnical' approach but rather, 'with realism and rationality.' Ashe
v. Swenson, 397 U.S. 436, 444, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970)
(cited with approval in State v. Harris, 78 Wn.2d 894, 896-97, 480 P.2d 484
(1971)); see also State v. Kassahun, 78 Wn. App. 938, 948-49, 900 P.2d 1109
(1995).
Before collateral estoppel will apply to preclude the relitigation of an
issue, all of the following requirements must be met: (1) the issue in the
prior adjudication must be identical to the issue currently presented for
review; (2) the prior adjudication must be a final judgment on the merits;
(3) the party against whom the doctrine is asserted must have been a party
to or in privity with a party to the prior adjudication; and (4) barring
the relitigation of the issue will not work an injustice on the party
against whom the doctrine is applied. Nielson, 135 Wn.2d at 262-63.
The State contends that all four requirements of collateral estoppel are
satisfied in this case. We disagree. As Harrison correctly observes,
collateral estoppel does not apply because the original sentence no longer
exists as a final judgment on the merits. Nielson, 135 Wn.2d at 262-63.
As we have stated, the act of 'an appeal does not suspend or negate . . .
collateral estoppel aspects of a judgment entered after trial in the
superior courts,' but collateral estoppel can be defeated by later rulings
on appeal. Id. at 264 (citing Riblet v. Ideal Cement Co., 57 Wn.2d 619,
621, 358 P.2d 975 (1961); Lejeune v. Clallam County, 64 Wn. App. 257, 265-
66, 823 P.2d 1144 (1992)). On Harrison's first appeal, the court
'reverse{d} Harrison's sentences and remand{ed} for resentencing with the
State's recommendation of an offender score of 7.' Harrison I, No. 43731-
3, slip op. at 7. His entire sentence was reversed, or vacated, since
'reverse' and 'vacate' have the same definition and effect in this context-
-the finality of the judgment is destroyed. Accordingly, Harrison's prior
sentence ceased to be a final judgment on the merits, and collateral
estoppel does not apply. Nielson, 135 Wn.2d at 262-63.
Finally, the State argues that the first sentencing court's decision
to impose an exceptional sentence became the 'law of the case.' The 'law
of the case' doctrine generally 'refers to 'the binding effect of
determinations made by the appellate court on further proceedings in the
trial court on remand'' or to 'the principle that an appellate court will
generally not make a redetermination of the rules of law which it has
announced in a prior determination in the same case.' Lutheran Day Care v.
Snohomish County, 119 Wn.2d 91, 113, 829 P.2d 746 (1992) (quoting 15 Lewis
H. Orland & Karl B. Tegland, Washington Practice, Judgments sec. 380, at 55
(4th ed. 1986) (footnote omitted)).
The doctrine serves to 'promote{} the finality and efficiency of the
judicial process by 'protecting against the agitation of settled issues.''
Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816, 108 S. Ct.
2166, 100 L. Ed. 2d 811 (1988) (quoting 1B J. Moore, J. Lucas, & T.
Currier, Moore's Federal Practice 0.404{1}, at 118 (1984)). The courts
apply the doctrine in order 'to avoid indefinite relitigation of the same
issue, to obtain consistent results in the same litigation, to afford one
opportunity for argument and decision of the matter at issue, and to assure
the obedience of lower courts to the decisions of appellate courts.' 5 Am.
Jur. 2d Appellate Review sec. 605 (2d ed. 1995) (footnote omitted).
In this case, neither Harrison I nor II decided the merits of the
exceptional sentence. Accordingly, the concerns addressed by the doctrine
simply are not present in Harrison's case. Additionally, to apply the 'law
of the case' doctrine here to require the second sentencing court to impose
an exceptional sentence results in manifest injustice. Folsom v. County of
Spokane, 111 Wn.2d 256, 264, 759 P.2d 1196 (1988) (citing Greene v.
Rothschild, 68 Wn.2d 1, 10, 402 P.2d 356, 414 P.2d 1013 (1965)). In
Harrison I, the court's remedy sought to place Harrison in the position he
occupied prior to the State's breach. Harrison I, slip op. at 7; James, 35
Wn. App. at 355. Applying the 'law of the case' doctrine to deny Harrison
a de novo sentencing hearing prevents Harrison from receiving the remedy
granted by the Court of Appeals. To deny Harrison his rightful remedy
would not serve the ends of justice.

CONCLUSION
The trial court erred in holding that either collateral estoppel or
the 'law of the case' doctrine prevented the court from independently
determining whether an exceptional sentence was warranted. Neither
doctrine applies because the State breached its plea agreement with
Harrison and he was granted the remedy of specific performance. Specific
performance requires a reversal of the prior sentence and a remand for de
novo sentencing with the State to abide by its plea agreement.
Accordingly, we reverse the Court of Appeals and remand for a new
sentencing hearing.

1 The facts underlying the crimes are not relevant to this court's review;
thus, they need not be related.
2 Generally, when the court sentences an offender for two or more offenses,
the sentences are to be served concurrently pursuant to RCW
9.94A.589(1)(a). The court, however, may impose consecutive sentences
under the exceptional sentence provisions of RCW 9.94A.535 which provide
the court with authority to impose a sentence outside the standard
sentencing range if it finds 'substantial and compelling reasons justifying
an exceptional sentence.' In this case, the State's recommendation for
consecutive terms amounted to an exceptional sentence.
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