On Point blog, page 1 of 2
Bill Poss and Bill Tyroler on plea agreements as “constitutional contracts”
If you missed the recent post on plea agreements as “constitutional contracts,” you might want to take a look at it now. In the comment section you’ll find the Bills bantering about how such an argument would play out in the trial courts AND ALSO a comment by Colin Miller, the professor who wrote the law review article at issue, reacting to the Bills’ banter. Click here for the post and comments.
Are plea agreements constitutional contracts?
Attorneys litigating the breach of a plea agreement might want to take a look at this new paper, Plea Agreements as Constitutional Contracts, by Professor Colin Miller of the University of South Carolina Law School. It highlights some interesting issues to raise on behalf of our clients–issues that could well make their way to SCOTUS. It seems Bill Tyroler was ahead of Professor Miller though. Years ago he did two posts regarding Wisconsin cases,
State v. Patrick K. Tourville, Case Nos. 2014AP1248-CR thru 2014AP1251-CR, petition for review granted 9/9/15
Review of an unpublished per curiam court of appeals decision; affirmed 2016 WI 17; case activity (for 2014AP1248-CR, which links to the other consolidated cases)
Issues (composed by On Point from the PFR)
Where the State agreed to cap its sentence recommendation on four cases at the “high end” of the recommendation of the presentence investigation (PSI) and the PSI did not recommend whether the sentences in the cases should be served concurrently or consecutively, did the State breach the plea agreement by recommending consecutive sentences?
Was there a sufficient factual basis for a plea to party to the crime of felony theft for “taking and carrying away” property when the defendant had no knowledge of the theft, but only received the stolen property and then moved it to a different location?
Proceeding to sentencing despite misunderstanding about plea agreement defeats claims for plea withdrawal, resentencing
State v. Nelson Luis Fortes, 2015 WI App 25; case activity (including briefs)
A “misunderstanding” about what sentence the state could recommend under the plea agreement did not entitle Fortes to plea withdrawal or resentencing because after the misunderstanding became evident at the sentencing hearing, Fortes elected to proceed rather than seek an adjournment with a possible eye toward plea withdrawal.
Guilty plea — factual basis; value of stolen property; breach of the plea agreement
State v. Lisa A. Brabazon, 2012AP1171-CR, District 4, 3/28/13; court of appeals decision (not recommended for publication); case activity
Guilty plea — factual basis; value of stolen property
The victim’s statements as to the value of the stolen property (which were set forth in the complaint) provided a sufficient factual basis for concluding that the value exceeded the $5,000 threshold for felony theft:
¶19 ….
Guilty Pleas – Plea Bargains – Charge “Dismissed Outright”: Ambiguous as to Whether State Can Argue Facts Underlying Charge
State v. Richard L. Wesley, 2009 WI App 118, PFR filed 8/4/09
For Wesley: Alvin Ugent
Issue/Holding: A plea agreement under which the State dismissed one count “outright” and “(b)oth sides are free to argue” was ambiguous as to whether to State could argue the facts underlying the dismissed charge at sentencing:
¶17 We thus conclude that the plea bargain was ambiguous because the agreement could have meant the State would either (1) dismiss the charges outright,
Guilty Pleas – Plea Bargains – Construction of Terms
State v. Richard L. Wesley, 2009 WI App 118, PFR filed 8/4/09
For Wesley: Alvin Ugent
Issue/Holding:
¶12 The interpretation of plea agreements is rooted in contract law. See State v. Deilke, 2004 WI 104, ¶12, 274 Wis. 2d 595, 682 N.W.2d 945. Contractual language is ambiguous only when it is “reasonably or fairly susceptible of more than one construction.” State v.
Plea Bargains — Breach: By Prosecutor — Recommendation of Consecutive Terms Where Agreements Required Recommendation of Concurrent Terms
State v. Michael F. Howard, 2001 WI App 137, 630 N.W.2d 244
Issue: Whether the prosecutor breached a plea bargain calling for a maximum recommendation on multiple counts of concurrent terms of 25 years in prison, when the actual recommendation was for a total of 25 years but included consecutive terms.
Holding:
¶18 Undoubtedly, one of the most crucial issues in a plea agreement is the recommendation concerning length of time to be served on each count.
Plea Bargains — Breach: By Prosecutor — “End-run” of Allocution Restrictions
State v. Dalvell Richardson, 2001 WI App 152
For Richardson: Richard D. Martin, SPD, Milwaukee Appellate
Issue: Whether the prosecutor breached a plea agreement “to leave the length of the incarceration entirely up to the Court, [without] any specific numerical type of recommendation” with allocution that clearly implied a request for a lengthy term.
Holding: The prosecutor’s comments (to the effect that this was one of the most serious cases the prosecutor had handled) didn’t breach an agreement to recommend incarceration without specifying length:
¶11.
Plea Bargains — Breach: Limiting Defense Presentation at Sentencing
State v. Shomari L. Robinson, 2001 WI App 127, PFR filed 5/7/01
For Robinson: Joseph L. Sommers
Issue: Whether the plea bargain was breached when the defendant wasn’t allowed to present certain evidence at sentencing.
Holding:
¶16 … (T)he trial court did not clearly err in finding that the plea agreement called for argument by the parties, and at most, a very limited presentation of evidence at sentencing regarding the nature of the sexual assault.