State Of Washington, Respondent V. Ryan Eugene Johnston, Appellant

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FILED
8/2/2021
Court of Appeals
Division |
State of Washington

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE

STATE OF WASHINGTON,
No. 81592-0-I
Respondent,

V.

UNPUBLISHED OPINION
RYAN EUGENE JOHNSTON,

Appellant.

PER CURIAM — Ryan Johnston was charged with assault in the first degree for an
attack on a sleeping homeless man. The parties entered into a plea agreement
whereby Johnston pleaded guilty to an amended charge of attempted assault in the first
degree and both parties agreed to recommend a low-end standard range sentence of
76.5 months in prison.

At the sentencing hearing, the State presented a video in which the detectives
and the victim’s social worker talk about what happened to the victim, the extent of his
severe injuries, and his inability to care for himself. The prosecutor then set out the
State’s low-end recommendation of 76.5 months in prison on the most serious charge.
The trial court directly asked the prosecutor, “And what was the police department’s

position on this?” The prosecutor answered, “I think the police department—the

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No. 81592-0-I/2
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detective’s position is they are in disagreement with our recommendation.” The
sentencing court imposed a mid-range sentence of 88.5 months in prison, 12 months
above the agreed recommendation.
Johnston appealed, arguing that the State breached the plea agreement by
presenting the video and by answering the sentencing court’s question about law
enforcement’s position on the State’s recommendation.
The State does not agree with Johnston’s contention that it breached the plea
agreement by answering a direct question from the sentencing court. See State v.
Talley, 134 Wn.2d 176, 183, 949 P.2d 358 (1998) (a prosecutor is obligated “to act in
good faith, participate in the sentencing proceedings, [and] answer the court’s questions
candidly in accordance with RPC 3.3”). However, the State concedes that the video
played at sentencing constituted a breach of the plea agreement because, viewed
objectively and in light of the parties’ agreement to jointly recommend a low-end
sentence, the investigating officers’ statements in the video implicitly advocated for a
higher sentence. “A breach occurs when the State offers unsolicited information by way
of report, testimony, or argument that undercuts the State’s obligations under the plea
agreement.” State v. Carreno-Maldonado, 135 Wn. App. 77, 83, 143 P.3d 343 (2006).
The State asks this court to accept its concession and remand to the trial court
for the defendant to select an appropriate remedy.
We accept the State’s concession and remand to the trial court for further
proceedings consistent with this opinion.

No. 81592-0-I/3
appelwick, J.
WE CONCUR:
Mann, C.D.
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