Echeverria v. State

¶1dissenting:

¶2I dissent. I would affirm the judgment of conviction and sentence imposed against Echeverría.

¶3*45In vacating Echeverria’s sentence, the majority has adopted two rules that are broader than what is required to decide this case. In so doing, the majority oversimplifies the problems which arise by the State’s breach of a plea agreement.

¶4First, the majority holds that every breach of a plea bargain requires reversal without any analysis as to whether the defendant has suffered prejudice. The State’s breach of the plea bargain struck in this case was substantial. Not every breach, however, is substantial. As is sometimes the case, the State might inadvertently misstate the plea bargain or the State’s breach might be innocuous or minor. The presentence report, which also recites the plea negotiations, sometimes inaccurately recounts the details of an agreement. The State might be guilty of a substantial breach but the trial court might deviate only minimally from the true plea bargain, imposing a sentence against the defendant which is close, though not identical, to the plea bargain. The State might violate the plea bargain but, as occurred here, the court might promptly notice the breach and immediately require the State to remedy the violation. Under any of these circumstances I find it difficult to justify vacating a defendant’s sentence and remanding for an entirely new sentencing hearing.

¶5I prefer an approach which first evaluates the magnitude of the breach and the prejudice, if any, suffered by a defendant before determining the necessity of a new sentencing hearing. Utilizing this approach, this case need not be remanded for a new sentencing hearing since the trial court here promptly noted the breach, ordered specific performance of the plea bargain and explicitly stated that the breach did not influence its sentencing decision.

¶6Second, the majority holds that whenever a plea bargain is breached to the defendant’s detriment, the case must be reassigned to a different judge for resentencing. I disagree. Once again, the holding is in excess of what might be called for in this case. Even if I agreed that the sentence ought to be vacated and the case remanded, I do not believe every such case requires reassignment upon remand. The reassignment of a case to a different court is not the “usual remedy,” and reassignment is reserved for “ ‘unusual circumstances.’ ”1

¶7I prefer the approach employed in United States v. Arnett.2 There, the court decided that, absent evidence of personal bias on the part of the sentencing judge, the factors to be considered in deciding whether reassignment is necessary include:

“(1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his *46or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.’ ’3

¶8This weighing process was followed by the Ninth Circuit in United States v. Travis4 under circumstances where the breach was more grievous than in this case because the prosecution not only failed to stand mute, as promised, but when challenged for its failure, persisted in the breach. The mentioned factors were also applied by the United States Court of Appeals for the District of Columbia Circuit in United States v. Wolff.5 Wolff also considered the question of whether reassignment was required under Santobello v. New York.6 I agree with its analysis and conclusion that Santobello is not binding precedent on this issue.

¶9In applying the factors to this case, I conclude that no reason exists to reassign the case to another judge. Reassignment would involve waste and duplication because a judge unfamiliar with the case would be required to review the entire record. In addition, allowing the judge who originally sentenced Echeverría to continue on with the case would not subvert the appearance of justice since the record clearly indicates that the judge was not influenced by the State’s breach. Finally, this is not a case where there was evidence originally presented that the trial judge must now put out of his mind. Nor did the trial judge express views which would be difficult to set aside at a new sentencing. The judge did sentence the defendant more harshly than was called for in the plea bargain, but that was his prerogative. The judge imposed a sentence which is reasonably supported by the circumstances of this case.

¶10Finally, I dissent to reassignment because I fear strategic breaches of plea bargains. It is conceivable and yet ironic that the State might abuse the automatic reversal to take advantage of the rule of automatic reassignment. The State might use breach as a matter of strategy to disqualify a judge it perceives as lenient in the hope of having the case reassigned to a forum less likely to follow the agreement. Thus, the State could breach the agreement in order to enhance the chances that the agreement is later rejected by a different sentencing judge.

¶11Based upon all of the above, I respectfully dissent.