On Point: 8. Plea bargain breach

State v. Lisa A. Brabazon, 2012AP1171-CR, District 4, 3/28/13; court of appeals decision (not recommended for publication); case activity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      ….

State v. Laurence W. Tucker, 2012 WI App 67 (recommended for publication); for Tucker: Robert T. Ruth; case activity

Tucker pleaded guilty pursuant to plea bargain, which terms included continuation of his release on bond and compliance with same. After Tucker failed to appear at sentencing, necessitating his arrest on a bench warrant and issuance of a new charge of bail jumping, the State informed counsel it was no longer bound by the agreement,

State v. Christina L. Contizano, 2011AP477-CR, District 4, 10/27/11

court of appeals decision (1-judge, not for publication); for Contizano: Robert C. Howard III; case activity

At Contizano’s sentencing for obstructing, based on lying to the police about her daughter’s location, the trial court didn’t erroneously exercise discretion in allowing Contizano’s ex-husband to advocate as a “victim” of the offense, in favor of a term of incarceration.

¶7        We conclude the court did not erroneously exercise its discretion when it considered the Walworths’ statements at sentencing.  

State v. Mark Allan Campbell, 2011 WI App 18; for Campbell: Steven D. Phillips, SPD, Madison Appellate; Campbell BiC; State Resp.; Reply

(Sentencing issue in the case discussed separately, here.)

Plea Bargain – Breach

The plea agreement required the prosecutor to recommend a 20-year sentence, comprised of 5-7 years’ confinement and the balance on extended supervision,

State v. Christopher Jones, 2009AP2761-CR, District 1, 9/28/10

court of appeals decision (3-judge, not recommended for publication); for Jones: Jeremy C. Perri, SPD, Milwaukee Appellate; BiC; Resp.; Reply

The court rejects a claim of an “end-run” around the plea bargain, which limited the State’s recommendation to 10 years imprisonment while leaving the “configuration” of confinement and supervision to judicial discretion, based on prosecutorial comments:

• the “whole matter was “aggravated by the defendant’s record,”

court of appeals decision; for Duckett: Michael K. Gould, SPD, Milwaukee Appellate; BiC; Resp. Br.; Reply Br.

Guilty Pleas – Breach – Lack of Contemporaneous Objection
Failure to object contemporaneously forfeits right of review of subsequently-asserted plea bargain breach. The issue therefore is reviewable only “in the context of a claim for ineffective assistance of counsel,” ¶6.

The court is fond of making this pronouncement,

State v. David C. Quarzenski, 2007 WI APP 212, PFR filed 9/21/07
For Quarzenski: Martin E. Kohler, Christopher M. Eippert

Issue: Whether counsel was ineffective for failing to object to the State’s sentencing recommendation where: under the plea bargain the State agreed to and in fact “capped” its recommendation on several counts to a total of “7 years in prison” but “additionally asked for an extensive period of extended supervision and consecutive long-term probation.”

Holding: The State did not materially and substantially breach the agreement,

State v. Lawrencia Ann Bembenek, 2006 WI App 198, PFR filed 10/3/06
For Bembenek: Joseph F. Owens, Mary L. Woehrer

Issue/Holding: Bembenek breached her plea agreement (which contained a no-attack or appeal clause) by filing a motion for DNA testing to establish her innocence; the remedy for this breach is dismissal of her appeal of the denial of the motion:

¶17      By filing motions to reexamine the evidence in 2002,

State v. Steven A. Harvey, 2006 WI App 26
For Harvey: Christopher William Rose

Issue/Holding: Plea bargain, which permitted State to comment on facts but not to make specific sentencing recommendation was not violated by State’s presentation of victim and others who themselves asked for maximum penalty:

¶40      We first disagree that the State breached the plea agreement by going beyond factual argument with its comments about evidence it would have introduced had there been a trial.

State v. Richard L. Bowers, 2005 WI App 72
For Bowers: George Tauscheck

Issue/Holding: The State’s immediate correction of recommended disposition in excess of the plea bargain’s limit rendered the breach insubstantial and therefore not actionable; State v. Knox, 213 Wis. 2d 318, 321, 570 N.W.2d 599 (Ct. App. 1997), followed:

¶12. We reach the same conclusion here. While the State did not correct itself with tremendous enthusiasm and zeal and while the trial court did not reflect upon the State’s “earnest”