On Point blog, page 1 of 2
COA reverses circuit court’s denial of state’s motion to revoke diversion agreement
State v. Jonathon Wayne Allen Beenken, 2024AP419-CR, 1/24/25, District IV (1-judge decision, ineligible for publication); case activity (including briefs)
COA holds that the clear and unambiguous terms of Beenken’s diversion agreement required the circuit court to grant the state’s motion to revoke the agreement.
Defense win! Jail time credited to sentence imposed after revocation of deferred-judgment agreement
State v. Amy Joan Zahurones, 2019 WI App 57; case activity (including briefs)
Zahurones was charged with several drug-related counts along with resisting an officer and physical abuse of a child. All the counts arose out of a single encounter with the police. She ultimately pleaded to four counts. On three of those counts she got probation, but on Count 2–the felony child-abuse count–she entered a deferred-judgment agreement with the state. The court put her on a signature bond with respect to that last count, since she wouldn’t otherwise be supervised. Over the next couple of years, Zahurones spent a total of about 9 months in jail on probation holds. Ultimately both the probation and the deferred-judgment agreement were revoked. So, does she get credit for those probation holds against her sentence on Count 2, even though she was technically on a signature bond for that count when she was in jail?
No violation of DPA; charged offense was supported by factual basis
State v. Brandon E. Jordan, 2015AP2062-CR, 10/6/16, District 4 (1-judge opinion; ineligible for publication); case activity (including briefs)
Jordan violated the terms of his Deferred Prosecution Agreement and received a warning letter which resulted in a 6-month extension of the agreement with new conditions. He then violated the conditions of the extension, and was terminated from the Deferred Prosecution Program. He argued that his termination violated the terms of the DPA.
Deferred Prosecution Agreement – Standard of Review
State v. Chase E. Kaczmarski, 2009 WI App 117
For Kaczmarski: Harold L. Harlowe, David M. Gorwitz
Issue/Holding:
¶10 Both the State and Kaczmarski agree that the deferred prosecution agreement is analogous to a contract and therefore we draw upon principles of contract law in determining the respective rights of the parties to the agreement. See State v. Roou, 2007 WI App 193,
Deferred Prosecution Agreement – Resumption of Prosecution after Agreement Has Expired
State v. Chase E. Kaczmarski, 2009 WI App 117
For Kaczmarski: Harold L. Harlowe, David M. Gorwitz
Issue: Whether commission of an offense during the period of the deferred prosecution agreement permitted resumption of the prosecution after that period expired, under the wording of the agreement.
Holding:
¶13 We conclude that the deferred prosecution agreement unambiguously provides that, in the event that Kaczmarski breaches the agreement,
Forfeited Issue: Deferred Prosecution Agreement Argument
State v. Chase E. Kaczmarski, 2009 WI App 117
For Kaczmarski: Harold L. Harlowe, David M. Gorwitz
Issue/Holding:
¶7 Forfeiture is a rule of judicial administration, and whether we apply the rule is a matter addressed to our discretion. [3] See Ford Motor Co. v. Lyons, 137 Wis. 2d 397, 417, 405 N.W.2d 354 (Ct. App. 1987).We generally do not consider arguments not raised in the circuit court.
Deferred Prosecution Agreement (Domestic Abuse), § 971.37 – Post-Revocation Withdrawal Comes within Test for Post-Sentencing Motion
State v. Sean M. Daley, 2006 WI App 81, on remand, PFR filed 5/10/06; prior history: 2005 WI App 260, decision vacated and remanded, 2006 WI 25
For Daley: Kirk B. Obear
Issue/Holding: Motion for plea-withdrawal following revocation of a deferred prosecution agreement but before sentencing has been imposed is gauged by the manifest injustice test for post-sentencing plea withdrawal,
Deferred Prosecution Agreement (Domestic Abuse), § 971.37 – Validity
State v. Sean M. Daley, 2006 WI App 81, on remand, PFR filed 5/10/06; prior history: 2005 WI App 260, decision vacated and remanded, 2006 WI 25
For Daley: Kirk B. Obear
Issue/Holding: A deferred prosecution agreement, whereby the defendant enters no contest pleas but entry of judgment of conviction is stayed,
Plea Agreements – Deferred Prosecution Agreement (§ 971.39) — Procedural Requirements
State v. Rex E. Wollenberg, 2004 WI App 20, PFR filed 1/8/04
For Wollenberg: Susan E. Alesia, SPD, Madison Appellate
Issue/Holding:
¶14. Wollenberg cites State v. Jankowski, 173 Wis. 2d 522, 528, 496 N.W.2d 215 (Ct. App. 1992), to support his claim that he cannot be convicted on the basis of a legal nullity. Jankowski, however, dealt with a different scenario.
Plea Agreements – Deferred Entry of Judgment, Contrasted with Deferred Prosecution Agreement (§ 971.39)
State v. Rex E. Wollenberg, 2004 WI App 20, PFR filed 1/8/04
For Wollenberg: Susan E. Alesia, SPD, Madison Appellate
Issue: Whether Wollenberg is entitled to withdraw his plea because the procedure for a deferred prosecution agreement (DPA), § 971.39, wasn’t followed.
Holding:
¶6. Wollenberg presents no evidence, other than his own arguments, that there was a DPA under Wis. Stat.