Defense win: In decision recommended for publication, COA clarifies significance of “read ins,” rejects attempt to rewrite plea breach law
State v. Lemar C. Newell, Jr., 2024AP1549-CR, 10/27/26, District I (recommended for publication); case activity
In a significant decision, COA finds that the State breached the plea agreement when it asked for charges to be read-in, instead of dismissed outright, at sentencing.
Newell was charged with two counts and accepted a plea deal under which one count was ultimately dismissed outright. (¶6). At sentencing, however, the State informed the Court that the dismissed charge would be read in. (¶7). On appeal, he argues that his lawyer was ineffective for not objecting to a material and substantial breach of the plea agreement. (¶8).
The facts here are a little sticky. According to the plea questionnaire, the other charge was being dismissed and read in. (¶5). However, at the plea hearing (and after accepting the plea), the State corrected the record and told the Court, “I never understood the difference, but I had said that Count 2, in the State’s view, should be dismissed outright.” (¶6). The Court said this “made a difference” and therefore stated that Count 2, the dismissed charge, would be read in. Id. However, by the time the parties appeared for sentencing, it seems no one could recall the status of the dismissed charge, with the State telling the Court it “did not recall” whether that charge was being read in. (¶7). Relying on the plea form, the State told the Court the charge was being read in. (Id). When asked if it was his understanding that the charge was being “dismissed,” both Newell and his lawyer answered, unhelpfully, “yes.” (Id.).
Obviously, it would have probably been a lot more helpful if: (a) the Court clearly included a discussion of whether the charge was being read in within the colloquy itself (as this surely seems like a necessary component when verifying the defendant’s understanding of the agreement) and (b) the Court asked for correction of the plea paperwork apparently stating an incorrect version of the offer.
In any case, COA ducks some of the murkier issues arising from this statement of facts by concluding that the State has forfeited an argument that the plea appearing on the plea form was the “real” plea agreement governing this case. (¶10 n.3).
Here, COA agrees with Newell that the prosecutor’s statement that the charge was being read in is a material and substantial breach of the plea agreement. (¶14). It therefore rejects the State’s argument there is “effectively no difference” between a charge being read in and a charge being dismissed outright. (¶16). It relies on SCOW’s decision in Frey, which holds that read-in “charges are expected to be considered at sentencing, with the understanding that the read-in charges could increase the sentence up to the maximum that the defendant could receive for the conviction in exchange for the promise not to prosecute those additional offenses.” (¶17).”To put it another way, in exchange for the State’s promise not to prosecute the read-in charge in the future, ‘the defendant exposes himself [or herself] to the likelihood of a higher sentence within the sentencing range and the additional possibility of restitution for offenses that are read-in.'” (Id.) Likewise, COA has previously held that read-in charges “carry more weight” than other conduct that may be considered at sentencing. (¶18).
The State’s opinion that read-in charges are no different than dismissed charges is not an uncommon perspective among judges and practitioners. But that ignores the directive of the legislature, which has stated this is a meaningful distinction for sentencing purposes. Moreover, at times our Wisconsin Supreme Court has used strong language to describe this unique entity. For example, in Sulla, the Court stated that a defendant who is having charges read in is agreeing that those charges ““will” be used against the defendant at a sentencing hearing. Yet, Wisconsin law is also clear that a defendant is not “admitting” the charges by having them read in.
Perhaps the best way to think about it is the following: A defendant who is charged with both disorderly conduct and battery and who pleads guilty to a clear-cut disorderly conduct (a loud argument) to avoid admitting responsibility for a disputed battery may well proceed to sentencing and ask the Court not to consider the dismissed allegation of battery. It seems like a defendant who has agreed to read that battery in, however, should have the “expectation” that the battery will be considered and that this allegation will have some weight on the scale. Thus, while perhaps academic in many circumstances, it appears there are at least some situations where the difference may be meaningful and have an impact on the sentencing exposure.
COA then swats away the State’s reliance on Knox in arguing that this breach was not material and substantial. (¶19). COA holds that its determination that the breach (recommending a consecutive as opposed to concurrent sentence) was not material and substantial in that case because the error was subject to an “immediate and earnest correction, such that the misstatement did not taint the sentencing process.” (¶22).
Trial counsel did not object to this breach, so COA next analyzes whether Newell has proven ineffective assistance of counsel. (¶23). Although there was no evidentiary hearing below, COA determines that a remand is not necessary to assess deficient performance (an apparent exception to the otherwise categorical Machner rule). Here, the State has conceded that, if the breach is material and substantial, deficient performance occurred. (¶42). COA therefore finds that failure to abide by Newell’s “informed strategic choice” as embodied by the plea agreement constitutes deficient performance. (¶¶43-44).
The issue, however, is prejudice, which requires COA to confront and reject a line of argument that the State has been advancing in other plea breach cases. Under controlling Wisconsin law, failure to object to a material and substantial breach of the plea agreement is per se prejudicial. (¶25). While one would think that Cook v. Cook would make this an easy case for Newell, the State argues that this is one of the few circumstances where that rule doesn’t apply: where an intervening decision of the US Supreme Court directly conflicts with Wisconsin precedent, such that the Supremacy Clause compels adherence to SCOTUS rather than SCOW. (¶28). The argument is somewhat convoluted, but essentially the State argues: (1) Smith, the controlling SCOW case, relied on SCOTUS’s decision in Santobello, (2) Puckett, a decision from SCOTUs post-dating Smith rejects the Smith reading of Santobello; (3) thus, Smith does not control. The analysis at this point is a little hard to follow unless one is well-versed with the multiple cases at issue; ultimately, COA decides that Puckett does not “directly” conflict with Smith, which (in COA’s view) stands for the proposition that “that under federal plain error review, prejudice should not be presumed when analyzing unpreserved claims of plea agreement breaches.” (¶28). “However, Puckett contains no language suggesting that states cannot provide broader protection by presuming prejudice under their own procedures for reviewing unpreserved errors.” (Id.). Likewise, COA finds that Smith sourced its holding from a broader body of law. (Id.). It likewise rejects the State’s reliance on a Seventh Circuit case to contrive a conflict between these authorities. (¶39).
COA therefore remands for resentencing, rejecting Newell’s late-in-the-game request for the alternative remedy of plea withdrawal. (¶44).
Just two concluding notes from the soapbox.
First, the State’s complex argument for rejecting Smith will obviously be front and center in its petition for review. Here, COA reiterates throughout that, because there’s no “direct” conflict, its hands are tied under Cook. We’ve tried not to get too far into the weeds since those arguments are (for now) conclusively rejected under Wisconsin law, but we’ll revisit these topics should the case continue to live on in the Wisconsin courts.
Second, we note that this case contains a fairly strong statement as to the significance of read in charges. This leads naturally to another question: does a defendant need to have the consequences of a read-in charge explained during a plea colloquy? In other words, is the difference between a dismissed and a dismissed and read-in charge significant enough that this information needs to be communicated to ensure a knowing and intelligent plea? The issue has flitted around for years but, as of yet, has not conclusively resulted in binding precedent resolving the issue. With this decision in hand, we expect that case to come soon.