Defense win: Circuit court erred in sua sponte vacating plea after state alleged breach of agreement
State v. Timothy Lester Troon, Jr., 2024AP110-CR, 2/19/26, District IV (not recommended for publication); case activity
Troon appeals his OWI 5th conviction and an order denying his postconviction motion, in which he argued that the circuit court erred in sua sponte vacating his first plea and judgment of conviction based on a disagreement between the parties about the joint sentencing recommendation that followed the court’s acceptance of his plea. COA agrees, vacating the conviction, reinstate Troon’s first plea and JOC, and remanding for resentencing.
Troon reached a plea agreement after he was charged with OWI 5th, PAC 5th, failure to install an ignition interlock device and OAR. (¶¶2-3). A substitute prosecutor filled in at the plea hearing, so defense counsel presented the joint agreement. When the court inquired whether the proposed sentence was concurrent or consecutive, defense counsel stated it was concurrent. The prosecutor relied on defense counsel’s representation. (¶3). The court adopted the parties’ joint sentencing recommendation, including making the sentence concurrent. (¶5). The assigned prosecutor later wrote to the court asserting that they had never discussed or agreed that the sentence would be concurrent and asking for a hearing. (¶6). After a hearing, the court concluded that there was no “meeting of the minds” because the concurrent/consecutive issue “is an extremely important part of a plea” and vacated Troon’s plea and judgment of conviction. (¶9).
Troon entered a new plea and was sentenced to a longer, but still concurrent, sentence. (¶11). The circuit court denied Troon’s subsequent postconviction motion. (¶¶12-13). COA identifies the issue as whether the circuit court violated Troon’s right to be free from double jeopardy when it vacated his first plea and judgment of conviction. The court applies State v. Comstock, 168 Wis. 2d 915, 953, 485 N.W.2d 354 (1992), to determine if Troon’s right to be free from double jeopardy was violated.
COA first determines that Troon’s first plea was validly entered and properly accepted by the circuit court. (¶19). Next, it considered whether the circuit court sua sponte vacated his plea. (¶23). Because the state never asked to vacate the plea, only raised issue with the sentence, COA concludes that the court acted sua sponte. (¶¶24-28). COA rejects all of the state’s arguments to the contrary. (¶¶29-36). Finally, COA concludes that no Comstock exception applies. The only pertinent exception is whether defense counsel “intentionally withheld from the circuit court material information which would have induced the court not to accept [Troon’s first] plea.” Comstock, 168 Wis. 2d at 953. (¶38). COA concludes the exception does not apply because the state initially argued, and the circuit court found, that there was no meeting of the minds, that the concurrent/consecutive issue was material, and a misapplication of the exception “pervade[d] the postconviction hearing.” (¶¶39-40). Essentially the circuit court answered a different question–whether the state would have accepted the plea. However, “the pertinent Comstock exception concerns whether the withholding from the court of the material information would have induced the court not to accept the plea, not whether the State would have offered the plea agreement in the first place. (¶41).
COA does not buy the argument that Troon’s plea was invalid absent an agreement on the consecutive/concurrent nature of the sentence, or that the court wouldn’t have accepted the plea had it known there was no agreement on that point. (¶¶42-43). As such, no Comstock exception applies. Thus, COA reverses the judgment of conviction and order denying Troon’s postconviction motion. It orders that Troon’s first plea and JOC be reinstated. As neither party disputes that Troon should be resentenced, COA orders that on remand, the parties shall offer the same portions of the first joint sentencing recommendation to which they both agreed, and may either argue concurrent or consecutive or negotiate further. (¶44).