Full Opinion

Commonwealth v. Duenas, 4 N.M.I. 377 (1996) Commonwealth of the Northern Mariana Islands, Plaintiff/Appellee, v. Lillian T. Duenas, Defendant/Appellant. Appeal No. 95-029 Criminal Case No. 94-0108 May 29, 1996 Subm itted on Briefs April 29, 1996 Counsel for appellant: Gregory Baka, Assistant Public Defender, Saipan. Counsel for appellee: Christine Zachares, Assistant Attorney General, Saipan. BEFORE: TAYLOR, Chief Justice, and VILLAGOM EZ and ATALIG, Justices. TAYLOR, Chief Justice: The appellant, Lillian T. Duenas, appeals the sentence im posed after she pled guilty to the offense of bribery. W e have jurisdiction pursuant to 1 CM C § 3102(a). Because the governm ent breached the term s of its plea agreem ent, we vacate the sentence and rem and for specific performance of the term s of the plea agreem ent. ISSUES AND STANDARDS OF REVIEW The parties present the following issues for our consideration: I. W hether the government’s oral recom m endation that M s. Duenas should receive a sentence based on a prior conviction breached a plea agreem ent that the governm ent’s recom m endation would depend on the extent of M s. Duenas’s cooperation with law enforcem ent authorities; II. W hether, if the governm ent’s conduct did constitute a breach of the plea agreem ent, the Superior Court “cured” the breach by imposing a sentence more lenient than that recom m ended by the governm ent. This Court has not addressed the proper standard of review for an alleged government breach of a plea agreem ent. The Ninth Circuit reviews such claim s de novo. United States v. Myers, 32 F.3d 411, 413 (9th Cir. 1994). The trial court’s interpretation of a plea agreem ent, in turn, is reviewed for clear error. United States v. Fernandez, 960 F.2d 771, 772 (9th Cir. 1991). FACTUAL AND PROCEDURAL HISTORY The government originally charged M s. Duenas with three counts each of bribery, in violation of 6 CM C § 3201, and misconduct in public office, in violation of 6 CM C § 3202. The charges stem m ed from allegations that she, while em ployed by the CNM I Departm ent of Com m erce and Labor, accepted paym ents in exchange for the issuance of certain work perm its for nonresident workers. According to the unsworn argum ent of counsel for M s. Duenas, the governm ent provided discovery to the defense on January 5, 1995, including “papers showing Defendant had a prior conviction before the United States District Court on Guam ” in which she pled guilty in 1990 to em bezzlem ent of governm ent monies. Appellant’s Brief at 3. The next day, the parties filed a plea agreem ent with the trial court in which M s. Duenas agreed to plead guilty to one count of bribery and the governm ent agreed to dismiss the rem aining charges. Paragraph 5 of the plea agreem ent provided: Pursuant to Rule 11(e)(1)(C) of the Comm onwealth Rules of Crim inal Procedure, the parties agree that the following is the appropriate disposition of the case, and the parties agree to jointly recom m end the following disposition. The Defendant shall be sentenced to five (5) years im prisonm ent with at least four (4) years suspended. . . . The Government’s recommendation with respect to the length of the suspended sentence (and jail time) shall depend on the extent of the Defendant’s cooperation under Paragraph 4. Excerpts of Record at 6 (em phasis added). The court accepted the plea, and on January 16, 1995, it entered a judgm ent of conviction. Id. at 9-10. On September 14, 1995, the Superior Court held M s. Duenas’s sentencing hearing. W hen the judge asked for a sentencing recom m endation, counsel for the governm ent made the following argum ent: Paragraph four [of the plea agreem ent] talks about cooperation with the Governm ent and its . . . it[’]s fairly vague, fairly general, and at this point the Governm ent’s contention is that per the technical terms of paragraph four M s. Duenas did cooperate, there was no hesitation on her part to meet and speak with the officers. However, in taking into account a jail sentence appropriate for Ms. Duenas, I looked at the charge in this plea agreement as well as to a past conviction in August of Nineteen Ninety in the U.S. District Court of Guam, the charges were relatively sim ilar em bezzlem ent of Governm ent m oney in an am ount well over three thousand dollars at the tim e the U.S. District Court gave quite a lenient sentence and allowed probation for M s. Duenas. Not a year [passed] after that probationary period expired and this charge was brought in the Com m onwealth sim ilar charge, bribery it involves moral turpitude. Because of her [past] conviction, the brief amount of time before such another conviction comes about in the Commonwealth, because of the leniency and yet no lesson seemed to be learned by that leniency as evidenced by the new charge here today the Government’s recommendation is jail sentence of nine months taking into the . . . reality that paroles are typically granted within a third of the tim e being served. . . . In this instance a m axim um of a year was agreed upon, the Governm ent doesn’t think a year is appropriate because she did com e to the office and speak with the officers when requested but because of the background and history and nature of the charges here today, the Government feels that jail tim e is appropriate, that nine m onths is a fair com promise based on all the history and what we have in front of the court today. Id. at 2-3 (emphasis added). Counsel for M s. Duenas im m ediately objected that this argum ent violated the plea agreement, stating that it was im proper for the trial court to base its recom m endation as to the unsuspended portion of the sentence on any factor other than the degree to which M s. Duenas had cooperated with the authorities. Counsel stated: “The point is that she has been fully one hundred percent cooperative since she’s given total cooperation she deserves total reduction. Therefore she deserves . . . is entitled to the benefit of the argum ent that was agreed upon in the sentencing Your Honor.” Id. at 5. After hearing further argum ent of counsel and hearing testim ony from witnesses regarding the extent of M s. Duenas’s cooperation with authorities, the trial court sentenced her to five years in prison, with four years and six m onths suspended. The trial judge’s sentencing rem arks indicate that he considered various factors in imposing this sentence, including M s. Duenas’s prior conviction, the fact that she had com m itted the offense while in a position of public trust, and her “cooperation with the government pursuant to the plea agreement.” Id. at 17. M s. Duenas tim ely appealed. ANALYSIS I. Government Breach of the Plea Agreement Commonwealth v. Duenas, 4 N.M.I. 377 (1996) Plea agreements are to be construed by ordinary contract standards. Fernandez, 960 F.2d at 772. In interpreting the language of a plea agreem ent, a reviewing court looks to what the defendant reasonably understood when he or she entered the plea. Id. M oreover, “when a plea rests in any significant degree upon a promise or agreement of the prosecutor, so that it can be said to be part of the inducem ent or consideration, such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 499, 30 L. Ed. 2d 420, 433 (1971); accord United States v. Camper, 66 F.3d 229, 232 (9th Cir. 1995). The failure to fulfill such a prom ise constitutes a breach of the plea agreem ent, requiring rem and for resentencing. Santobello, 404 U.S. at 262, 92 S. Ct. at 499, 30 L. Ed. 2d at 433; Camper, 66 F.2d at 232; Myers, 32 F.3d at 413 (stating that “the governm ent must be held to the literal terms of the agreem ent”). Here, we look to the plain language of paragraph four of the plea agreem ent, which says that “[t]he Governm ent’s recom m endation with respect to the length of the suspended sentence (and jail tim e) shall depend on the extent of the Defendant’s cooperation” with law enforcem ent authorities. This sentence cannot reasonably be read to constitute a prom ise to recom m end a total suspension of M s. Duenas’s sentence so long as she cooperated with the authorities. However, it does constitute a prom ise that the governm ent would base its recom m endation, whatever that might be, on the extent and nature of M s. Duenas’s cooperation, and not on her prior conviction. The fact that the governm ent was already aware of M s. Duenas’s prior conviction at the tim e it entered into the agreement bolsters this interpretation. However aggravating a factor the government considered this prior conviction to be, M s. Duenas could have reasonably assum ed that the governm ent had taken it into account in the plea offer as a whole. Furthermore, based on this plain language of the plea agreem ent, it is clear that the governm ent’s argum ent at the sentencing hearing breached its promise to Ms. Duenas. In the transcript passage set forth above, the governm ent very explicitly based its sentencing recom m endation prim arily upon her prior conviction, and only secondarily upon her cooperation with the authorities. The governm ent relies on United States v. Spillman, 924 F.2d 721, 722-23 (7th Cir. 1991), for the proposition that, so long as the government’s sentencing recom m endation is within the range specified by the plea agreem ent, it may base the recom m endation on other factors besides the extent of the defendant’s cooperation, regardless of the language of the plea agreem ent. Spillman’s rather flexible reasoning stands at odds with the more strict rules enunciated by the U.S. Suprem e Court in Santobello, 404 U.S. at 262, 92 S. Ct. at 499, 30 L. Ed. 2d at 433, and by the Ninth Circuit in Camper, 66 F.3d at 232. M oreover, Spillman is not on all fours with the facts here. In Spillman, the court found that the defendant had received the benefit of his bargain in cooperating with authorities, because the governm ent did not move for an upward departure from the applicable sentencing guideline based upon the defendant’s prior crim inal record. This finding appears to hinge on the fact that the plea agreem ent at issue allowed the governm ent to recom m end a sentence of up to the statutory maxim um . Spillman, 924 F.2d at 723. Here, in contrast, the agreement stipulated that four years out of M s. Duenas’s five-year sentence were to be suspended. In the plea agreem ent, the governm ent prom ised to base its recom m endation regarding further suspension of M s. Duenas’s sentence upon the extent of her cooperation with law enforcem ent officials. Having later opted to base its recom m endation instead on other factors, the governm ent cannot now claim that it gave M s. Duenas the benefit of her bargain. W e thus hold that the government’s conduct breached the plea agreem ent. II. The Trial Court’s Sentence The governm ent argues that even if it breached the plea agreem ent by its own conduct, the Superior Court “cured” the breach by sentencing M s. Duenas to a shorter term of unsuspended im prisonm ent than that recom m ended by the governm ent. Appellee’s Brief at 3, 8-9. This argum ent is m ade without citation to authority, and we located no cases standing for this proposition. Rather, there is strong authority to the contrary. In the Ninth Circuit, “the harm less error rule does not apply to the law of contractual plea agreements.” Myers, 32 F.3d at 413. In Santobello, the prosecutor violated a plea agreem ent by recom m ending a harsh sentence when the agreem ent stipulated that the governm ent would m ake no recom m endation. The defense im m ediately objected and requested an adjournm ent of the hearing. The sentencing judge denied the request, stating “‘I am not at all influenced by what the district attorney says, so there is no need to adjourn the sentence.’” Santobello, 404 U.S. at 259, 92 S. Ct. at 497, 30 L. Ed. 2d 431. The Supreme Court reversed, stating that while it did not doubt the judge’s statem ent, [n]evertheless, we conclude that the interests of justice and the appropriate recognition of the duties of the prosecution in relation to prom ises made in the negotiation of pleas of guilty will be best served by rem anding the case . . . . W e em phasize that this is in no sense to question the fairness of the sentencing judge; the fault here rests on the prosecutor, not the sentencing judge. Id., 404 U.S. at 262-63, 92 S. Ct. at 499, 30 L. Ed. 2d at 433. Indeed, the Court’s concern that the defendant receive the full benefit of his bargain was such that the m atter was rem anded for resentencing before a different judge. Id.; accord, Camper, 66 F.3d at 233 (em phasizing that rem and for resentencing before different judge “in no way im plies criticism of sentencing judge,” but rather is ordered “to insure compliance with the plea agreem ent”). Here, as in Santobello and Camper, the sentencing judge had no obligation to follow the governm ent’s sentencing recom m endation. He had before him a presentencing investigation which, judging from the transcript, clearly set forth inform ation regarding M s. Duenas’s prior conviction. However, by the standards of the cases discussed above, the governm ent’s recom m endation was a breach of the agreem ent which could be cured only by adjourning the sentencing hearing and forwarding the case to another judge for resentencing based on proper conduct by the government. That is what this Court orders now. CONCLUSION For the foregoing reasons, we VACATE the sentence im posed on M s. Duenas and REM AND the m atter for resentencing before a different judge, and specific performance of the literal terms of the plea agreem ent.