Can a prosecutor cure a breach of plea agreement by withdrawing an improper recommendation? State v. Smit Explained

In State v. Smit, the Utah Court of Appeals addressed whether a prosecutor can cure a breach of a plea agreement by withdrawing an improper sentencing recommendation and whether trial courts must inform defendants about jail time as a potential condition of probation.

Background and Facts

Jeffrey Smit pleaded guilty to criminal nonsupport under a plea agreement where the State promised to recommend that any sentence be suspended and that Smit receive probation. During the plea colloquy, Smit specifically stated that “the State is not seeking any jail time,” which the State did not contradict. At sentencing, however, the prosecutor recommended “at least three months, if not six months in jail.” After reviewing the plea agreement record, the State withdrew its jail recommendation. Nevertheless, the trial court sentenced Smit to probation with ninety days in jail as a condition.

Key Legal Issues

The court addressed two main issues: (1) whether the State’s initial recommendation for jail time constituted an uncurable breach of the plea agreement, and (2) whether the trial court committed plain error by failing to inform Smit that probation could include jail time as a condition under Utah Code Section 77-18-1(8)(a)(v).

Court’s Analysis and Holding

The Court of Appeals held that the State cured its initial breach by promptly withdrawing the jail recommendation. Following Santobello v. New York, the court noted that when a plea agreement is breached, the remedy can be either specific performance or withdrawal of the guilty plea, both at the trial court’s discretion. Here, the trial court stated it was not influenced by the State’s initial recommendation and considered all recommendations before imposing the ninety-day sentence.

Regarding the Rule 11 claim, the court concluded that any error in failing to inform Smit about jail as a condition of probation was not obvious error because the law is unclear whether such information constitutes a direct or collateral consequence of pleading guilty.

Practice Implications

This decision provides important guidance for plea negotiations. Prosecutors should be careful about sentencing recommendations that contradict plea agreements, but can cure breaches through timely withdrawal. Defense attorneys should explicitly address whether jail time as a condition of probation is contemplated in plea agreements to avoid confusion. The decision also suggests that Rule 11 compliance may not require courts to inform defendants about all potential conditions of probation, though the issue remains unsettled.