NAJAM, J.
Here, Valenzuela’s plea agreement required the State to “make the following recommendation as [to] the sentence to be imposed: Cap of Thirty Five Years (35).” . . . The State asserts that that language is ambiguous because it is not reasonably clear whether the thirty-five-year cap is a limit on only the executed portion of Valenzuela’s sentence, as the State maintains, or is a cap on Valenzuela’s total term, as he asserts on appeal. [Footnote omitted.] We cannot agree. “Cap” means just that-it is a cap on the sentence the trial court could impose on Valenzuela. And the cap here was thirty-five years. Having exceeded that cap by imposing a forty-five-year sentence, the trial court improperly exceeded the plain terms of Valenzuela’s plea agreement.
Nonetheless, even if the plea agreement were ambiguous, we could not agree with the State’s proposal to “look to extrinsic evidence to discern the intentions of the parties.” . . . Specifically, the State asserts that the four jointly filed memoranda, in which Valenzuela acknowledged that he was considering the State’s offers to plead guilty, along with Valenzuela’s lack of objection at the sentencing hearing, demonstrates Valenzuela’s intent to have the thirty-five-year cap apply only to the executed portion of his sentence. But that evidence is inconclusive. The references in the memoranda to an executed-sentence cap is not consistent with the language Valenzuela eventually accepted, and that difference may well have been material to inducing Valenzuela to plead guilty. And, in any event, the actual agreement supersedes previous negotiations.
Rather than relying on extrinsic evidence, as the State would have us do, the better rule is to strictly construe the plea agreement against its drafter, the State. See, e.g., Time Warner, 802 N.E.2d at 894 (“we construe any contract ambiguity against the party who drafted it.”). As the United States Court of Appeals for the Third Circuit succinctly and persuasively stated: “in view of the government’s tremendous bargaining power, we will strictly construe the text against it as the drafter of plea agreements to the extent the agreement is ambiguous.” United States v. Rivera, 357 F.3d 290, 295 (3d Cir. 2004). Thus, if we are to assume that Valenzuela’s plea agreement is ambiguous we must construe the term “Cap of Thirty Five Years” to be a cap on the total term of his sentence.
BAKER, C.J., and KIRSCH, J., concur.