Friday, April 11, 2008

Enthusiasm Not Required

The Kansas Supreme Court held that a prosecutor breached a plea agreement to recommended probation if the defendant met a sentencing criteria that the defendant was able to satisfy. Although the prosecutor did recommended a probationary sentence, the court concluded that the half-hearted endorsement was insufficient to fulfill the plea bargain:

"[The defendant's] prosecutor said that she recommended probation, but the words she used do not meet the minimum requirements for a recommendation. Recommend means 'to praise or commend (one) to another as being worthy or desirable,' or 'to make (the possessor, as of an attribute) attractive or acceptable.' American Heritage Dictionary 1460 (4th ed. 2000). The prosecutor here did not state anything that would cause an objective person to conclude that probation was worthy, desirable, attractive, or even acceptable.

A prosecutor does not need to be enthusiastic in making the recommendation agreed upon in the plea bargain. United States v. Benchimol, 471 U.S. 453, 455, 85 L. Ed. 2d 462, 105 S. Ct. 2103 (1985). But the prosecutor must at least make the recommendation, and the prosecutor may not so undermine the recommendation that only lip service has been paid to it. In our case, the recommendation of probation was meaningless unless the trial court could make the finding required by statute that community safety interests would be promoted through offender reformation if Foster were placed on probation. The prosecutor never said that such a finding would be proper in Foster's case and provided information that appears to the contrary. That breaches the plea agreement."

The defendant is entitled to resentencing with the benefit of the bargain bestowed. (Mike Frisch)

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