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FILED
JUNE 18, 2013

In the Office of the Clerk of Court
W A State Court of Appeals, Division III

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

STATE OF WASHINGTON,  )  No. 30699-2-111  
)  
Respondent,  )  
)  
v.  )  UNPUBLISHED OPINION  
)  

CLIFFORD ELTON CHEW, )
)
Appellant. )

KULIK, J. Clifford Elton Chew pleaded guilty to possession of methamphetamine with intent to manufacture within 1,000 feet ofa school bus zone pursuant to a plea agreement in which the State agreed to recommend a low-end standard range sentence of 84 months. On appeal, he contends the State breached its plea agreement by citing aggravating factors at sentencing that resulted in the imposition ofa high-end sentence based on those factors. We agree that the State breached the plea agreement and remand to allow Mr. Chew to withdraw his plea or seek enforcement of the agreement. FACTS Clifford Chew was charged by amended information with three violations ofthe
Uniform Controlled Substances Act, chapter 69.50 RCW. After consulting with the lead detective in the case, the prosecutor agreed to dismiss two of the charges and recommend a low-end standard range sentence of 84 months (60 months plus a 24-month school zone enhancement).
Mr. Chew accepted the offer and entered an Alfori plea to possession of methamphetamine with intent to manufacture within 1,000 feet of a school bus. In the written guilty plea statement, the State's sentencing recommendation provided: "The prosecuting attorney will make the following recommendation to the judge: asking 84 months agreed all sides." Clerk's Papers (CP) at 133.
Before accepting the plea, the trial court confirmed that Mr. Chew was entering the plea to "take advantage ofthe plea bargain" and that he understood that the "prosecuting attorney is going to recommend asking for the low side; as agreed to by all sides." Report ofProceedings (RP) at 208,205. The court then asked Mr. Chew if"anybody made any threats or promises to you to get you to sign [the guilty plea]." RP at 208. Mr. Chew responded that he was "must ... hoping to get the 84-month range." RP at 208.
At sentencing, Mr. Chew's defense counsel asked the court to consider allowing Mr. Chew access to drug treatment in prison, including a drug offender sentencing
1 North Carolina v. Alford, 400 U.S. 25,91 S. Ct. 160,27 L. Ed. 2d 162 (1970).
alternative (DOSA), ifhe qualified under the statute. The prosecutor responded:
[P]ursuant to [a] plea negotiation the State agreed to recommend 84 months and a day and agree to dismiss two of the three counts. We don't believe that he should be given a DOSA treatment program. His criminal history is probably about as long as I've ever seen in my years of doing this. I think I counted about 19 felonies starting back in the mid-seventies [including] Attempted Murder and Assault 1st, which then put him away for 10 years. And then after that, 2010, he was back atit.
But be that as it may, knowing what we know about meth labs and the hazardous, the hazards that they give, the State believes the 84-month range recommendation is reasonable.
RP at 214-15.
The prosecutor then asked the lead detective to speak, who stated:
I don't have to educate the Court on the destruction ofMethamphetamine or Methamphetamine laboratories. As we know, it is effecting [sic] our community, our society, and actually globally.
What I want the Court to understand is we as law enforcement officers take an inherent risk to investigate these types of crimes in order to give a better quality of life to everybody here, and the citizens within the community.
The people at that hotel that day ... probably would never know the inherent danger or risk associated with what was going on in room 106; the contamination, the exposure levels of the chemicals within the room.
Again, we as law enforcement take that risk so that people have a safe place to live. I don't feel it's right that we give any sort ofleniency towards people who take advantage of our community in this way and bring their dirt here, ifyou will.
Our position is that we would hope that Mr. Chew takes advantage
of some sort of treatment program within the Institutions. We would not
agree or be in favor of granting [a] DOSA in any way .... This is not his
first encounter with Methamphetamine[;] I just ask that you recognize the
dangers and inherent danger that this posed not only to him, to us and the No.30699-2-III
State v. Chew
community, which is just about everybody as a whole. RP at 215-16.
After these remarks, defense counsel reminded the court that all parties agreed on an 84-month sentence. However, the court announced it was "not sentencing toward the low end. It will be quite the opposite." RP at 218. It then imposed a sentence of 108 months, citing three reasons: (1) the "horrendous" nature of methamphetamine and its "tremendous" impact on our community, (2) the risk of exposing "innocent people" at the motel room to hazardous materials, and (3) Mr. Chew's high offender score. RP at 217

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