Petition for Writ of Certiorari — Favion Lara, Petitioner v. Nebraska

No. 23-

In the

Supreme Court of the United States

_________________________

FAVION LARA,

Petitioner,

V.

NEBRASKA,

Respondent.

_________________________

On Petition for a Writ of Certiorari

to the Supreme Court of Nebraska

_________________________

PETITION FOR A WRIT OF CERTIORARI

_________________________

MARK PORTO

Wolf, McDermott, Depue,

Sabott, Butz & Porto

308 N. Locust, Ste. 501

Grand Island, NE 68801

STUART BANNER

Counsel of Record

UCLA School of Law

Supreme Court Clinic

405 Hilgard Ave.

Los Angeles, CA 90095

(310) 206-8506

banner@law.ucla.edu

i

QUESTION PRESENTED

Where a plea agreement includes the prosecutor’s

promise that the State will recommend a particular

sentence, does a police officer’s recommendation of a

longer sentence violate the Due Process Clause by

breaching the plea agreement?

ii

RELATED PROCEEDINGS

Supreme Court of Nebraska: State v. Lara, No. S23-167 (Feb. 2, 2024)

Hall County (Nebraska) District Court: State v.

Lara, No. CR 22-504 (Feb. 1, 2023)

iii

TABLE OF CONTENTS

QUESTION PRESENTED ......................................... i

RELATED PROCEEDINGS ...................................... ii

TABLE OF AUTHORITIES ...................................... v

OPINION BELOW ...................................................... 1

JURISDICTION .......................................................... 1

CONSTITUTIONAL PROVISION INVOLVED ........ 1

STATEMENT .............................................................. 1

REASONS FOR GRANTING THE WRIT ................. 6

I.

The lower courts are divided over

whether the government breaches a

plea agreement where a police officer

recommends a sentence longer than the

one the prosecutor promised that the

government would recommend. .......................... 7

A. Some courts hold that a promise in a

plea agreement to recommend a particular sentence binds the government as a whole, not merely the prosecutor. ............................................................ 8

B. Other courts hold that a promise in a

plea agreement to recommend a particular sentence is binding only on the

prosecutor, and not on police officers. ........ 11

C. The Nebraska Supreme Court has

adopted a third view. .................................. 12

D. Nebraska’s attempt to reconcile the

conflict is based on a misunderstanding of the cases. ........................................... 13

iv

II. The decision below is wrong. ............................. 16

III. This is an important issue, and this case

is an excellent vehicle for resolving it. ............. 20

CONCLUSION ......................................................... 22

APPENDIX ............................................................... 1a

A. State v. Lara (Supreme Court of

Nebraska, Feb. 2, 2024) ................................ 2a

v

TABLE OF AUTHORITIES

CASES

Allen v. Hadden, 57 F.3d 1529 (10th Cir.

1995) ...................................................................... 10

Florida v. Jardines, 569 U.S. 1 (2013) .................... 17

Giglio v. United States, 405 U.S. 150 (1972) ........... 17

Harris v. State, 671 N.E.2d 864 (Ind. Ct.

App. 1996) .............................................................. 21

Kernan v. Cuero, 583 U.S. 1 (2017) (per

curiam) ................................................................... 16

Lafler v. Cooper, 566 U.S. 156 (2012) ...................... 20

Lee v. State, 501 So. 2d 591 (Fla. 1987) .......... 9-10, 14

Mabry v. Johnson, 467 U.S. 504 (1984) ................... 16

Maine v. Moulton, 474 U.S. 159 (1985) ................... 17

Missouri v. Frye, 566 U.S. 134 (2012) ..................... 20

Puckett v. United States, 556 U.S. 129 (2009) ......... 16

S & E Contractors, Inc. v. United States, 406

U.S. 1 (1972) .......................................................... 18

Santobello v. New York, 404 US. 257 (1971) ... 4, 6, 16

State v. Chetwood, 170 P.3d 436 (Kan. Ct.

App. 2007) ........................................................ 15, 20

State v. Lampien, 223 P.3d 750 (Idaho

2009) ..................................................... 11-12, 14, 15

State v. Liskany, 964 N.E.2d 1073 (Ohio Ct.

App. 2011) .............................................................. 20

State v. Matson, 674 N.W.2d 51 (Wis. Ct.

App. 2003) .............................................................. 21

State v. MacDonald, 346 P.3d 748 (Wash.

2015) ............................................................... 8-9, 14

State v. Rogel, 568 P.2d 421 (Ariz. 1977) .......... 12, 14

State v. Thurston, 781 P.2d 1296 (Utah Ct.

App. 1989) ........................................................ 16, 21

United States v. Benchimol, 471 U.S. 453

(1985) (per curiam) ................................................ 18

vi

United States v. Gebbie, 294 F.3d 540 (3d

Cir. 2002) ............................................................... 11

United States v. Harvey, 791 F.2d 294 (4th

Cir. 1986) .......................................................... 10-11

STATUTE

28 U.S.C. § 1257(a) ..................................................... 1

OTHER AUTHORITIES

Jonathan Abel, Cops and Pleas: Police

Officers’ Influence on Plea Bargaining, 126

Yale L.J. 1730 (2017) ............................................. 15

Daniel Richman, Prosecutors and Their

Agents, Agents and Their Prosecutors, 103

Colum. L. Rev. 749 (2003) ..................................... 15

1

PETITION FOR A WRIT OF CERTIORARI

Favion Lara respectfully petitions for a writ of

certiorari to review the judgment of the Supreme

Court of Nebraska.

OPINION BELOW

The opinion of the Supreme Court of Nebraska is

published at 315 Neb. 856, 2 N.W.3d 1 (Neb. 2024).

JURISDICTION

The Supreme Court of Nebraska entered its

judgment on February 2, 2024. This Court has jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISION INVOLVED

The Fourteenth Amendment provides in relevant

part: “nor shall any State deprive any person of life,

liberty, or property, without due process of law.”

STATEMENT

Most criminal convictions result from plea agreements. One common provision in these agreements

is a promise by the prosecutor that the government

will recommend a particular sentence to the court.

The lower courts are divided over a recurring question: Is the prosecutor the only agent of the government who is bound by the government’s promise, or

does the promise bind police officers as well? In other

words, does the government breach the plea agreement if a police officer recommends a sentence longer than the one the prosecutor promised that the

government would recommend?

This case is an excellent vehicle in which to resolve the conflict.

2

1. As police officers prepared to search a house in

Grand Island, Nebraska, they heard two gunshots.

App. 7a-8a. The shots were fired in their direction

from a nearby corner by 17-year-old Favion Lara,

whose goal was not to shoot the officers but rather to

distract them, in the hope of allowing his friends,

who were inside the house, to evade apprehension.

Id. at 8a. Lara was charged as an adult with fourteen felonies and one misdemeanor. Id.

Under a plea agreement, Lara pled no contest to

five of the counts—two counts of attempted first degree assault on an officer, two counts of attempted

use of a firearm to commit a felony, and one count of

conspiracy to commit a felony. Id. at 8a-10a. The

state agreed to dismiss the remaining counts. Id. at

9a. As part of the plea agreement, the prosecutor

promised in court that “at the time of sentencing, the

State has agreed that the State will recommend a

total sentence of 15 to 20 years.” Id. The court accepted Lara’s plea and set the case for sentencing.

Id. at 10a.

At sentencing, however, the defense was in for a

surprise. The court received a letter from Ryan Sullivan, one of the police officers Lara had attempted

to distract with his gunshots, and one of the officers

who played a role in Lara’s arrest. Id. In the letter,

Officer Sullivan urged the court to impose a much

longer sentence than the one the state had promised

to recommend. “In 12 years of policing,” Sullivan told

the court,

I’ve never been shot at. I’ve had some very bad

people go as far as removing a gun from a holster, but they never made the choice to shoot at

me. This should illustrate Favion Lara’s men-

3

tality. Favion’s defense will likely say Favion is

“young and dumb”. They’re not wrong. He’s 18.

I think that is also his downfall. If Favion is

willing to shoot at two police officers at the age

of 18, what will he be willing to do when he has

more “street cred” and experience as a criminal

on the streets in the future[?]

....

Your Honor, you have a chance at this sentence hearing to put away a very dangerous

person for a significant amount of time. This is

also an opportunity to show the city of Grand

Island, we will not tolerate shooting at police

officers, and we are done with the ongoing gun

crime in this city. Favion can be made the example for this age group. I’m told the sentencing recommendation will be around 15 years. I

don’t think jamming out after 7-8 years is

enough punishment for shooting at police officers. I ask that you consider exceeding the recommendation, and sentence Favion to a more

appropriate number of years, closer to the max

sentence.

Id. at 11a. The signature line beneath Sullivan’s letter read “Investigator Ryan Sullivan #442.” Id. at

12a. Next to the signature line was a stamp of a

Grand Island Police Department badge. Id.

Defense counsel objected to and moved to strike

the portion of Officer Sullivan’s letter arguing in favor of a sentence greater than the one the state had

promised to recommend. Id. Counsel explained that

“it violates the plea agreement for the State to offer

an exhibit by another officer of the State, an agent of

the State, that specifically argues for something that

4

exceeds the recommendation that was made pursuant to the terms of the plea agreement.” Id. The

court overruled the objection. Id.

The prosecutor recommended a total sentence of

15 to 20 years, but the court followed Officer Sullivan’s advice, not the prosecutor’s, and imposed a

sentence far longer than the one the state had promised to recommend. Id. at 13a. Lara was sentenced to

a prison term of 30 to 50 years on the conspiracy

count, to be served consecutively with four concurrent terms of 15 to 30 years on the other counts, for a

total sentence of 45 to 80 years. Id. In the plea

agreement, the state had promised to recommend a

sentence of 15 to 20 years, but at sentencing the

state spoke with two voices, one of which broke the

state’s promise. As a result, Lara received a prison

term much longer than the one for which he bargained away his constitutional right to a jury trial.

2. The Nebraska Supreme Court affirmed. Id. at

2a-31a.

The court acknowledged that “both the U.S. Supreme Court and this court have held that ‘when a

plea rests in any significant degree on a promise or

agreement of the prosecutor, so that it can be said to

be part of the inducement or consideration, such

promise must be fulfilled.’” Id. at 18a-19a (quoting

Santobello v. New York, 404 US. 257, 262 (1971)).

The court explained that “[w]hen a defendant establishes that a plea agreement has been breached,

available remedies include (1) ordering specific performance of the agreement or (2) allowing withdrawal of the plea.” Id. at 20a (citing Santobello along

with the Nebraska Supreme Court’s own cases).

5

The court recognized that it had to decide a question it had “not previously considered[:] whether law

enforcement officers are agents of the prosecution for

purposes of binding them to the prosecution’s promises under a plea agreement.” Id. at 26a. The court

observed that courts in other jurisdictions have

reached conflicting views on this question. Id. at

24a-26a. It noted that some courts hold “that law enforcement officers are agents of the prosecution

bound to comply with the prosecution’s promises under a plea agreement.” Id. at 24a (citing cases from

Washington, Ohio, Wisconsin, and Florida). Other

courts, by contrast, “conclude law enforcement officers are not agents of the prosecution for purposes of

plea agreements.” Id. at 25a (citing cases from Utah,

Arizona, Wisconsin, Idaho, and Indiana).

The Nebraska Supreme Court decided to adopt

neither of these rules. “Even though we acknowledge

that other jurisdictions have adopted blanket rules

deciding as a matter of law whether prosecuting attorneys and law enforcement officers have a principal-agent relationship for purposes of binding officers to plea agreements,” the court concluded, “we are

not persuaded it is appropriate to decide the agency

issue as a matter of law when construing and enforcing plea agreements.” Id. at 27a. “[W]e decline to

adopt any blanket rule.” Id. Rather, “when construing and enforcing plea agreements, we treat the existence of any principal-agent relationship, and the

scope of authority under any such a relationship, as

questions of fact to be determined from the evidence

properly before the court.” Id.

The court then applied this framework. Although

the prosecutor had promised that “the State will rec-

6

ommend a total sentence of 15 to 20 years,” id. at 9a,

the court held: “we see nothing in the record suggesting that the parties to this plea agreement expressly

agreed to restrict the sentencing recommendations of

any party other than the prosecution.” Id. at 28a.

The court continued: “Nor do we see any evidence to

support a finding, under established contract principles, that Sullivan was acting as an agent of the

prosecution for purposes of the plea agreement.” Id.

The court accordingly concluded that “Lara has

failed to prove that Sullivan’s sentencing remarks

resulted in a breach of the plea agreement.” Id. at

29a.

REASONS FOR GRANTING THE WRIT

The Due Process Clause requires that “when a

plea rests in any significant degree on a promise or

agreement of the prosecutor, so that it can be said to

be part of the inducement or consideration, such

promise must be fulfilled.” Santobello v. New York,

404 U.S. 257, 262 (1971).

The lower courts are divided over how to apply

this rule in one recurring situation. A standard

promise in plea agreements is a promise by the prosecutor that the government will recommend a particular sentence to the court. Defendants often agree

to plead guilty in exchange for this promise. At sentencing, however, the prosecutor may not be the only

agent of the government who offers a sentencing recommendation. Police officers sometimes chime in as

well, and when they do, they often suggest sentences

longer than the one the prosecutor promised that the

government would recommend.

7

When the government speaks with more than one

voice at sentencing, does the government breach the

plea agreement if a police officer’s recommended sentence is longer than the one the prosecutor promised

that the government would recommend? The lower

courts have split three ways on this question. Some

courts have adopted a rule that the police officer is

an agent of the government for these purposes and

have accordingly held that the officer’s recommendation breaches the plea agreement. On the other side

of the split, some courts have adopted the opposite

rule; they have held that the police officer is an independent actor, not an agent of the government,

and that the officer’s recommendation does not

breach the plea agreement. Below, the Nebraska Supreme Court took a third approach. The court declined to adopt either rule. Instead, the court decided

to resolve the issue on a case-by-case basis as a question of fact.

Two of these three approaches must be wrong.

This case provides an excellent vehicle for resolving

the conflict.

I. The lower courts are divided over

whether the government breaches a

plea agreement where a police officer

recommends a sentence longer than

the one the prosecutor promised that

the government would recommend.

The lower courts are split nearly evenly on

whether the government breaches a plea agreement

when a police officer’s recommended sentence is

longer than the sentence that the prosecutor promised the government would recommend.

8

A. Some courts hold that a promise

in a plea agreement to recommend a particular sentence binds

the government as a whole, not

merely the prosecutor.

Two state supreme courts have held that where

the prosecutor promises in a plea agreement to recommend a particular sentence, that promise is binding on all agents of the government, including police

officers.

In State v. MacDonald, 346 P.3d 748, 751 (Wash.

2015), the prosecutor promised in a plea agreement

to recommend a five-year suspended sentence. At

sentencing, however, a police officer recommended

the maximum sentence of five years, not suspended.

Id. The Washington Supreme Court held that the

state had breached the plea agreement and remanded for the defendant to elect whether he would withdraw his plea or seek specific performance of the

plea agreement. Id. at 752. “[I]nvestigating officers

cannot make sentence recommendations contrary to

a plea agreement,” the court explained. Id. “[T]he

same due process concerns precluding an investigating officer from undermining a plea agreement bar

that officer from making unsolicited remarks on a

victim’s behalf to the court at sentencing that are

contrary to the plea agreement.” Id. The court observed that “the constitutional due process concerns

that adhere when the prosecutor undercuts a plea

bargain apply with equal force when the prosecution

undercuts that agreement by proxy.” Id. at 755.

The Washington Supreme Court explained that

the reason for this rule is that “defendants waive

significant rights when they agree to plead guilty.

9

This waiver of rights obligates the State to comply

with any promises that it makes.” Id. at 755-56. A

police officer’s recommendation of a sentence longer

than the one promised in a plea agreement “could

render the prosecution’s agreement meaningless,

and that could deter future plea agreements.” Id. at

756 (citation and internal quotation marks omitted).

When prosecutors promise to recommend sentences,

the court concluded, “prosecutors may not do indirectly through their investigating officers what they

are prohibited from doing directly.” Id. (citation,

brackets, and internal quotation marks omitted).

The Florida Supreme Court reached the same

holding in Lee v. State, 501 So. 2d 591 (Fla. 1987). In

Lee, the plea agreement provided that the state

would recommend probation, but at sentencing a police officer recommended incarceration. Id. at 591-92.

The Florida Supreme Court reversed on the ground

that “once a plea bargain based on a prosecutor’s

promise that the state will recommend a certain sentence is struck, basic fairness mandates that no

agent of the state make any utterance that would

tend to compromise the effectiveness of the state's

recommendation.” Id. at 593. The court explained

that “[t]he state’s failure to adhere to the terms of a

plea agreement even when the noncompliance is

purely inadvertent constitutes good cause for withdrawal of a plea under this provision.” Id. at 592 (citing Santobello, 404 U.S. at 262). Thus, “a promise

contained in a plea agreement that the state will

recommend a given sentence … precludes other state

agents, such as state law enforcement officers, from

making sentencing recommendations contrary to the

10

terms of the agreement[].” Id. (internal quotation

marks omitted).

Several of the federal courts of appeals have likewise held, in slightly different factual contexts, that

a prosecutor’s promise in a plea agreement binds the

government as a whole, not merely the prosecutor’s

office. For example, in Allen v. Hadden, 57 F.3d

1529, 1531 (10th Cir. 1995), the plea agreement

promised that certain counts would be dismissed and

that these counts would have no adverse effect on

the defendant. Later, however, information about

the dismissed counts was used in sentencing the defendant in an unrelated case, and the Bureau of

Prisons relied on the dismissed counts to justify adverse classification decisions. Id. at 1533. The Tenth

Circuit held that the prosecutor’s promise in the plea

agreement was binding on the government as a

whole, not merely on the U.S. Attorney’s office. Id. at

1535-36. “Whenever a United States Attorney negotiates and enters a plea agreement,” the court held,

“it is the Government that ‘agrees’ to whatever is

agreed to.” Id. at 1535 (citation omitted). The court

noted that while a U.S. Attorney may reach a plea

agreement explicitly obligating only certain parts of

the government, “[a]bsent an express limitation on

the government’s obligations, a plea agreement entered on behalf of the government binds the government as a whole.” Id.

Similarly, in United States v. Harvey, 791 F.2d

294 (4th Cir. 1986), the Fourth Circuit held that one

U.S. Attorney’s promise binds U.S. Attorneys in all

districts, not merely in the district where the promise was made. “[T]hough the Government negotiates

its plea agreements through the agency of specific

11

United States Attorneys,” the court held, “the

agreements reached are those of the Government. It

is the Government at large—not just specific United

States Attorneys or United States “Districts”—that

is bound by plea agreements negotiated by agents of

Government.” Id. at 302-03. See also United States v.

Gebbie, 294 F.3d 540, 550 (3d Cir. 2002) (same). In

these circuits, as in Washington and Florida, when a

prosecutor makes a promise on behalf of the government as part of a plea agreement, the promise

binds the government, not merely the prosecutor.

B. Other courts hold that a promise in

a plea agreement to recommend a

particular sentence is binding only

on the prosecutor, and not on police officers.

Two state supreme courts have adopted the opposite rule. These courts hold that the government

does not breach a plea agreement when a police officer recommends a sentence longer than the one the

prosecutor promised that the government would recommend, on the ground that the prosecutor’s promise binds only the prosecutor personally.

In State v. Lampien, 223 P.3d 750, 753 (Idaho

2009), the prosecutor promised in a plea agreement

that the government would recommend probation,

but at sentencing police officers urged incarceration

instead. The Idaho Supreme Court held that the

state did not breach the plea agreement, because the

officers were “not acting as agents of the State, and

therefore were not bound by the terms of the plea

agreement. There is nothing in the record to suggest

that the prosecutor improperly influenced the offic-

12

ers, called the officers to subvert the plea agreement,

or otherwise acted to undermine the State’s sentencing recommendation.” Id. at 760. The court concluded that the police officers were “acting in their individual capacities as victims,” not as representatives

of the government. Id.

Likewise, in State v. Rogel, 568 P.2d 421, 423

(Ariz. 1977), the prosecutor promised in a plea

agreement that the state would make no recommendation at sentencing, but at sentencing a police officer recommended a lengthy sentence. The Arizona

Supreme Court held that the state had not breached

the plea agreement. “Plea agreements are entered

into by the defendant, who is usually represented by

counsel, and the prosecution,” the court reasoned. Id.

“The police participate in neither negotiations nor

the agreement and have no voice in dictating what

terms should be considered, bargained for or included.” Id. The court found it “evident that in entering a

plea agreement containing provisions requiring certain conduct by ‘the State,’ it is the parties’ mutual

intent to use that term in referring only to the prosecutorial branch of the State.” Id. The court thus concluded that “[t]he provision requiring the State to

stand mute on sentencing here obviously refers to

and binds only the county prosecutor and was not

intended to prohibit police officers from airing their

opinions.” Id.

C. The Nebraska Supreme Court has

adopted a third view.

In our case, the Nebraska Supreme Court “carefully studied the reasoning of the opinions” on both

sides of the split and found both sides mistaken.

13

App. 26a. “[W]e are not persuaded it is appropriate

to judicially adopt a blanket rule either recognizing

or rejecting a principal-agent relationship between

prosecuting attorneys and law enforcement officers

for purposes of construing and enforcing plea agreements,” the court explained. Id. “Even though we

acknowledge that other jurisdictions have adopted

blanket rules,” the court continued, “we decline to

adopt any blanket rule.” Id. at 27a. “Instead, when

construing and enforcing plea agreements, we treat

the existence of any principal-agent relationship,

and the scope of authority under any such relationship, as questions of fact to be determined from the

evidence properly before the court.” Id. Although

“other jurisdictions appear to have approached the

agency issue as a matter of law rather than a question of fact,” the court concluded, it would adopt a

position different from these other jurisdictions. Id.

at 29a.

D. Nebraska’s attempt to reconcile the

conflict is based on a misunderstanding of the cases.

In its briefing below, Nebraska argued that these

conflicting cases can be reconciled, on the theory that

the cases distinguish between officers who speak as

officers (whose sentence recommendations can be attributed to the government) and officers who speak

in their personal capacities as crime victims (whose

sentence recommendations cannot be attributed to

the government). Neb. Sup. Ct. State Br. at 16-17.

Nebraska suggested that Officer Sullivan, who urged

the court to give Favion Lara a sentence much longer than the one the prosecutor had promised the

14

state would recommend, spoke only in his personal

capacity as a victim of the crime. Id.

Nebraska’s theory is incorrect for two reasons.

First, it misconceives the conflict among the lower

courts. Second, it fails to account for the facts of this

case.

First, with one exception (Lampien, 223 P.3d at

760), the cases constituting the conflict do not draw

the distinction Nebraska attempts to draw, between

officers-testifying-as-officers and officers-testifyingas-victims. These cases simply hold that police officers may (or may not) recommend sentences longer

than the one the prosecutor promised that the government would recommend, without regard to the

capacity in which the officer testifies. See MacDonald, 346 P.3d at 755-56; Lee, 501 So.2d at 593; Rogel,

568 P.2d at 423. These cases reason that police officers are (or are not) agents of the government, and

thus that they are (or are not) bound by the prosecutor’s promise as to what the government will recommend, without attempting to parse the situations in

which police officers should be deemed to speak for

the government.

Indeed, in MacDonald, the police officer who recommended the longer sentence did so “on behalf of

the victim.” MacDonald, 346 P.3d at 751. The Washington Supreme Court held that the officer’s recommendation breached the prosecutor’s promise, on the

ground that a police officer may not urge the court to

impose a sentence longer than the one the prosecutor

promised that the state would recommend, even

where the officer speaks on the victim’s behalf. Id. at

755-56. The conflict among the lower courts thus has

15

nothing to do with the distinction Nebraska attempts to draw.

Second, the facts of this case do not fit Nebraska’s

proposed distinction. Officer Sullivan was not just

any old crime victim. He was one of the police officers whose detective work led the police to arrest

Favion Lara. App. 10a (“Sullivan played a role in the

investigation that led to Lara’s charges.”). He expressly relied on his lengthy experience as a police

officer in urging the court to impose a lengthy sentence. Id. at 11a. When the prosecutor promised in

the plea agreement that “the State will recommend a

total sentence of 15 to 20 years,” id. at 9a (emphasis

added), the defense reasonably understood the prosecutor to promise that no agent of the state, including one of the police officers who had helped apprehend Lara, would recommend a sentence longer than

that.

The conflict among the lower courts is genuine.

We are not the first to notice it. See Jonathan Abel,

Cops and Pleas: Police Officers’ Influence on Plea

Bargaining, 126 Yale L.J. 1730, 1768 (2017) (“courts

are evenly split about whether the officer is bound by

the prosecutor’s plea offer”); Daniel Richman, Prosecutors and Their Agents, Agents and Their Prosecutors, 103 Colum. L. Rev. 749, 829 n.360 (2003) (citing

the cases constituting the split as of the date the article was published); Lampien, 223 P.3d at 760 (noting the “split of authority on the issue of whether a

law enforcement agency is bound by a prosecutor’s

plea agreement and, thus, whether the agency’s failure to adhere to the terms of the plea agreement

constitutes good cause for withdrawal of a guilty

plea”); State v. Chetwood, 170 P.3d 436, 441 (Kan.

16

Ct. App. 2007) (“jurisdictions are split on the issue of

who is bound by a plea agreement”); State v.

Thurston, 781 P.2d 1296, 1299 (Utah Ct. App. 1989)

(contrasting the conflicting views of the Florida and

Arizona Supreme Courts).

A conflict of this magnitude will never be resolved

without this Court’s intervention.

II. The decision below is wrong.

Certiorari is also warranted because the decision

below is wrong. When a prosecutor promises in a

plea agreement that “the state” will recommend a

particular sentence, the state breaches the plea

agreement when a police officer recommends a sentence longer than the one the prosecutor promised

that the state would recommend.

The Due Process Clause requires the government

to abide by the promises it makes in a plea agreement. Mabry v. Johnson, 467 U.S. 504, 509 (1984).

“[W]hen a plea rests in any significant degree on a

promise or agreement of the prosecutor, so that it

can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello v.

New York, 404 U.S. 257, 262 (1971). “It follows that

when the prosecution breaches its promise with respect to an executed plea agreement, the defendant

pleads guilty on a false premise, and hence his conviction cannot stand.” Mabry, 467 U.S. at 509. See

also Kernan v. Cuero, 583 U.S. 1, 7 (2017) (per curiam) (“a defendant may not be bound to a plea

agreement following a prosecutorial breach of an enforceable provision of such an agreement.”)

Because plea agreements are “essentially contracts,” Puckett v. United States, 556 U.S. 129, 137

17

(2009), they are interpreted according to the plain

meaning of their terms. A promise that “the state”

will recommend a sentence plainly means that

agents of the state will recommend that sentence,

because the state can act only through its agents.

And there can be no doubt that a police officer is an

agent of the state. Indeed, police officers are often

called “state agents,” precisely because they enforce

the law on behalf of the state. See, e.g., Florida v.

Jardines, 569 U.S. 1, 6 (2013); Maine v. Moulton, 474

U.S. 159, 176 (1985). Where, as here, a police officer

plays a role in the investigation and arrest of a defendant, the officer is unmistakably an agent of the

state during the prosecution of the defendant.

When a prosecutor promises that “the state” will

recommend a sentence, the promise binds the state,

not merely the prosecutor himself. “The prosecutor’s

office … is the spokesman for the Government. A

promise made by one attorney must be attributed,

for these purposes, to the Government.” Giglio v.

United States, 405 U.S. 150, 154 (1972). As the Court

has explained, “[w]hen a defendant agrees to a plea

bargain, the Government takes on certain obligations.” Puckett, 556 U.S. at 137 (emphasis added).

When the prosecutor promised, as part of Favion

Lara’s plea agreement, that “the State” would recommend a sentence, the only reasonable interpretation of the promise is that it bound all agents of the

state, not merely the prosecutor himself. After all,

the promise would have been nearly worthless if it

allowed other state agents—police officers, other

prosecutors, members of the prosecutor’s staff, and

so on—to undercut the prosecutor’s promise by showing up at sentencing and urging the court to impose

18

a sentence longer than the one the prosecutor promised that the state would recommend. “A citizen has

the right to expect fair dealing from his government,

and this entails in the present context treating the

government as a unit rather than as an amalgam of

separate entities.” S & E Contractors, Inc. v. United

States, 406 U.S. 1, 10 (1972) (citation omitted).

A prosecutor certainly can make a promise that

binds only himself, and that allows others to advocate for longer sentences, simply by saying so in the

plea agreement. Here, for example, instead of promising that “the State” would recommend a particular

sentence, the plea agreement could have promised

that the prosecutor personally would make that recommendation but that police officers might recommend longer sentences. Had the plea agreement

been so worded, Favion Lara would have had no

right to complain when Officer Sullivan indeed recommended a longer sentence. But the plea agreement was not worded that way. Cf. United States v.

Benchimol, 471 U.S. 453, 455 (1985) (per curiam)

(holding that plea agreements should be enforced “in

terms of what the parties in fact agree to”).

Below, the Nebraska Supreme Court got this

point exactly backwards. The court reasoned that

“[i]f the parties to a plea agreement want to negotiate terms that purport to bind third parties to promises made by the prosecution, they should do so in

express terms rather than relying on implied-in-law

terms.” App. 28a. But the express terms of the plea

agreement did bind “the State,” not merely “the

prosecution.” If the parties wanted to bind only the

prosecutor, they should have done that in express

terms. The agreement they signed bound the state.

19

The Nebraska Supreme Court also erred in framing the question as “whether law enforcement officers are agents of the prosecution.” Id. at 26a. The

relevant question is not whether law enforcement

officers are agents of the prosecution, but whether

they are agents of the state. The promise in the plea

agreement was that “the State” would recommend a

particular sentence, not that “the prosecution” would

recommend it. Prosecutors and police officers are

both agents of the state, so both are bound by a

promise made on the state’s behalf. It makes no difference whether police officers are also agents of “the

prosecution,” because the plea agreement included

no sentencing promises made by any such entity. It

only included a promise by “the State.”

Under the decision below, plea bargaining becomes a trap for the unwary. After their clients have

been burned once, experienced defense counsel will

know the true meaning of a promise in a plea

agreement that the state will recommend a particular sentence. They will understand that such a promise is scarcely worth the paper on which it is written,

because police officers may appear at sentencing to

advocate for sentences longer than the one the state

promised to recommend. But inexperienced defense

counsel will not be aware of this trick. And uncounseled defendants will certainly not be aware of it.

Like Favion Lara and his attorney, they will be

blindsided at sentencing by police officers who say

something very different from what the prosecutor

promised the state would recommend.

20

III. This is an important issue, and this

case is an excellent vehicle for resolving it.

The rules governing plea bargaining are extremely important because most criminal cases are resolved through plea bargaining. In Missouri v. Frye,

566 U.S. 134, 143 (2012), the Court cited Justice Department data indicating that 97% of federal convictions and 94% of state convictions are the result of

guilty pleas. As the Court has explained, “criminal

justice today is for the most part a system of pleas,

not a system of trials.” Lafler v. Cooper, 566 U.S.

156, 170 (2012).

The number of plea bargains dwarfs the number

of trials, yet the Court’s criminal procedure cases are

nearly all about the rules governing trials, not plea

bargains. The Court should devote more attention to

defendants’ constitutional rights during plea bargaining.

This issue is a sensible place to start. The issue

has already arisen in several jurisdictions. See (in

addition to the cases already cited that make up the

split) State v. Liskany, 964 N.E.2d 1073, 1088 (Ohio

Ct. App. 2011) (holding that where a police officer’s

letter to the sentencing court recommended a sentence longer than the one the state promised to recommend in the plea agreement, “because the letter

was issued by an agent of the state, it constitutes an

improper attempt to influence the sentencing by

breaching the state’s promise”); State v. Chetwood,

170 P.3d 436, 438 (Kan. Ct. App. 2007) (holding that

where a plea agreement provided that the state

would recommend probation, a police officer’s recommendation of incarceration “amounted to a viola-

21

tion of the terms of the plea bargain.”); State v. Matson, 674 N.W.2d 51, 57 (Wis. Ct. App. 2003) (“Because an investigative officer is the investigating

arm of the prosecutor’s office, principles of fairness

and agency require us to bind the investigating officer to the prosecutor’s bargain.”); Harris v. State,

671 N.E.2d 864, 871 (Ind. Ct. App. 1996) (“Detective

Kuzmik’s sentencing statement did not represent a

sentencing recommendation made by the State, but

rather was based on his own personal opinion. As

such, the State did not breach any portion of the

written plea agreement.”); State v. Thurston, 781

P.2d 1296, 1299 (Utah Ct. App. 1989) (noting the

conflict between the Florida and Arizona Supreme

Courts on this issue and concluding that “[w]e find

the reasoning of the Arizona court to be persuasive”).

Prosecutors and defense lawyers alike need to

know whether it is consistent with due process for

police officers to recommend sentences longer than

those the prosecutor has promised that the state

would recommend. The answer to this question will

determine the wording of countless plea agreements.

It will also have a profound effect on the most important decision defense lawyers must make in most

cases—whether to advise their clients to accept the

prosecutor’s offer of a plea agreement.

This case is the perfect vehicle in which to address

the question presented. The issue was squarely

raised and decided below. This case has the ideal

facts, because Officer Sullivan was simultaneously

an investigating officer and a victim of the crime, so

the Court will be able to decide whether an officer’s

status as a victim has any bearing on whether the

officer may constitutionally undermine the prosecu-

22

tor’s promise. And the Court’s decision will have

enormous consequences for Favion Lara. The Court’s

resolution of the question presented will decide

whether Lara, who at the age of 17 fired two shots in

a foolhardy attempt to distract the police, will grow

old in prison or whether he will be released with

much of his adult life still ahead.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

MARK PORTO

Wolf, McDermott, Depue,

Sabott, Butz & Porto

308 N. Locust, Ste. 501

Grand Island, NE 68801

STUART BANNER

Counsel of Record

UCLA School of Law

Supreme Court Clinic

405 Hilgard Ave.

Los Angeles, CA 90095

(310) 206-8506

banner@law.ucla.edu