Appeal from the District Court of Laramie County The Honorable Michael K. Davis, Judge.
The opinion of the court was delivered by: Voigt, Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT*fn1, and BURKE, JJ.
[¶1] In this appeal, Rodney Gene Christensen (Christensen) claims that the State breached a plea agreement that would have allowed him to enter the Wyoming Substance Abuse Treatment & Recovery Centers (WySTAR) before being sentenced. Finding that Christensen failed to show plain error, we will affirm.
[¶2] Did plain error occur in the form of the State breaching its plea agreement with Christensen?
[¶3] On July 7, 2008, Christensen was charged with nine counts of burglary and seven counts of larceny. On July 24, 2008, he entered into a plea agreement with the State whereby he would plead guilty to four of the nine burglary counts and, in return, the State would dismiss the remaining counts. The State also agreed that Christensen could be released on his own recognizance to attend WySTAR, a substance abuse and recovery program, during the time between his plea hearing and sentencing hearing, if a bed became available at WySTAR. The plea agreement, which was set forth orally by defense counsel at the change-of-plea hearing, did not contain any specific sentencing recommendations.*fn2 The district court accepted the request that Christensen be allowed to enter WySTAR if and when a bed became available, but instructed Christensen‟s attorney to "come back to court either by stipulation or a subsequent hearing" at that time in order to modify Christensen‟s bond to allow him to enter WySTAR.
[¶4] Following the plea hearing, a bed apparently did become available at WySTAR. Christensen‟s attorney contacted the prosecutor and requested that Christensen be released and allowed to enter WySTAR. The prosecutor refused the request. The record is not clear as to when a bed became available or when Christensen‟s attorney contacted the prosecutor. The record does reflect, however, that Christensen never contacted the district court about the WySTAR opening prior to the sentencing hearing. The record also reflects that Christensen never entered WySTAR.
[¶5] Sentencing occurred on June 25, 2009. While arguing in favor of mitigation, defense counsel mentioned Christensen‟s need for substance abuse treatment, and mentioned that Christensen was accepted into the WySTAR program "weeks, if not months, ago." Christensen‟s attorney also indicated that he contacted the prosecutor and requested that Christensen "be released to go to the treatment program, and [the prosecutor] said, no." No mention was made of a plea agreement, and there was no request to continue the sentencing hearing to allow Christensen to attend the program. The district court sentenced Christensen to "not less than six nor more than eight years confinement" on each of the four counts, to run concurrently. Christensen now appeals the written judgment and sentence claiming a breach of the plea agreement.
[¶6] We generally review alleged breaches of plea agreements de novo. E.g. Frederick v. State, 2007 WY 27, ¶ 13, 151 P.3d 1136, 1141 (Wyo. 2007); Spencer v. State, 2005 WY 105, ¶ 12, 118 P.3d 978, 982-83 (Wyo. 2005). However, when a party fails to raise the issue of breach of a plea agreement with the district court, we review the alleged breach for plain error. See Rutti v. State, 2004 WY 133, ¶¶ 40-41, 100 P.3d 394, 410 (Wyo. 2004). We have repeatedly held that "[p]lain error exists when 1) the record is clear about the incident alleged as error; 2) there was a transgression of a clear and unequivocal rule of law; and 3) the party claiming the error was denied a substantial right which materially prejudiced him." Id. at ¶ 33, at 408 (quoting Sandy v. State, 870 P.2d 352, 358 (Wyo. 1994)). The appellant bears the burden of proving plain error. Id.
[¶7] Christensen argues that the State breached the plea agreement because the agreement was that "Christensen would be released on his own recognizance to immediately go and participate in the WySTAR program... when a bed becomes available," but when a bed did in fact become available, the prosecutor did not agree to release Christensen. Under plain error analysis, our first task is to determine whether the record is clear regarding the alleged error. Rutti, 2004 WY 133, ¶¶ 40-41, 100 P.3d at 410. Christensen claims the breach occurred during a conversation between defense counsel and the prosecutor wherein the prosecutor indicated that he would refuse to release Christensen so that he could enter WySTAR. As noted above, Christensen mentioned this conversation during the sentencing hearing, which the record reflects, and the State, in its brief, acknowledges that this conversation occurred. Consequently, we find that the record clearly reflects the alleged breach.
[¶8] The second prong of the plain error test requires us to determine whether "there was a transgression of a clear and unequivocal rule of law." Id. at ¶ 33, at 408 (quoting Sandy, 870 P.2d at 358). ...