On Point: 8. Plea bargain breach

State v. Patrick K. Tourville, 2016 WI 17, 3/15/2016, affirming an unpublished court of appeals decision; case activity (including briefs)

Patrick Tourville pled to four crimes in a deal that called on the state to recommend a sentence no higher than the one recommended by the PSI. The PSI recommended a prison term for each count; the state recommended that these terms be run consecutively. So when the state asked for consecutive time even though the PSI didn’t, did it honor its commitment to follow the PSI? If you answered “no,” the one thing we know about you is that you’re not a member of the Wisconsin Supreme Court.

Review of an unpublished per curiam court of appeals decision; affirmed 2016 WI 17; case activity (for 2014AP1248-CR, which links to the other consolidated cases)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?

State v. Warren E. Schabow, 2014AP1254-CR, District 3, 7/7/15 (not recommended for publication); case activity (including briefs)

Based on the entire sentencing proceeding, the state didn’t breach the plea agreement because the prosecutor’s remarks did not insinuate the state was distancing itself from, or casting doubt on, its own sentencing recommendation.

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.

State v. Johnny E. Miller, 2014AP1392-CR, 2/18/05, District 2 (1-judge opinion, ineligible for publication); case activity

Miller argued that the State breached its plea agreement with him when, at sentencing, it recommended that he be eligible for the Earned Release Program only after he served a specified period of prison time. The State, he claimed, impermissibly advocated a harsher sentence than recommended. The court of appeals rejected Miller’s argument because he and the State simply “did not have any agreement as to ERP eligibility.”

State v. William F. Bokenyi, 2014 WI 61, 7/11/14, reversing an unpublished per curiam court of appeals decision; majority opinion by Justice Ziegler; case activity

In a decision that plows no new legal ground, a divided supreme court holds that a prosecutor’s remarks at sentencing did not breach the plea agreement, but were instead within the proper bounds of argument in support of a permitted recommendation for imprisonment. Because the prosecutor didn’t breach the plea agreement, the court doesn’t decide the primary issue presented for review: Whether the court should overrule State v. Sprang, 2004 WI App 121, ¶29, 274 Wis. 2d 784, 683 N.W.2d 522, which held that if defense counsel does not consult with the defendant when foregoing an objection to a breach of the plea agreement, counsel performs deficiently because that is “tantamount to entering a renegotiated plea agreement without [the defendant’s] knowledge or consent.”

Review of an unpublished, per curiam court of appeals decision; case activity; State’s petition for review

Issues (from the State’s petition):

State v. Carl A. Reed, 2013 WI App 132; case activity

Reed pled no contest to substantial battery in exchange for the State’s agreement to dismiss 3 other counts and to refrain from making a sentencing recommendation.  The State also received the right to withdraw from the agreement if  Reed “commits any new or additional crimes.”  Reed was later charged with new crimes.  So, the State presented a recommendation at sentencing.

State v. Aaron L. Wood, 2013 WI App 88; case activity

The state did not breach the plea agreement where the prosecutor, after making the agreed-upon recommendation, expressed alarm and concern at what he discovered in the PSI after the plea agreement was made and referred in his sentencing argument to the negative portions of the PSI. State v. Williams, 2002 WI 1,

State v. London Mack Stewart, 2013 WI App 86; case activity

Stewart was convicted of reckless injury, reckless endangerment, and felon in possession after he shot at and injured a police officer executing a warrant at a home where Stewart was staying. (¶2). Under the plea agreement the state agreed to recommend a “global” 25-year sentence (15 in, 10 out); the state did so, but the injured officer,