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COA: Defendant showed fair and just reason to withdraw pleas on all counts, not just one

State v. Devon Maurice Bowser, 2018AP313, 1/8/19, District 3 (not recommended for publication); case activity (including briefs)

Bowser was charged with several offenses in two cases; the two cases involved alleged drug sales on two different dates (one in 2015, one in 2016) to two different CIs. He and the state struck a deal in which he pleaded to some counts in each file with the rest dismissed. But before he could be sentenced, Bowser learned that the CI from the 2015 sale was recanting his claims that Bowser had sold him the drugs. Bowser moved to withdraw all his pleas in both cases.

The circuit court permitted plea withdrawal on the single count Bowser had pleaded to for the 2015 sale, but denied it as to the two counts arising from the 2016 sale, on the ground that those counts involved “separate incidents” and a “separate informant.” The court of appeals now holds this an erroneous exercise of discretion, and goes on to decide that, applying the correct standard, Bowser should have been granted withdrawal on all counts.

The court begins by observing that “Wisconsin case law clearly holds that a defendant’s repudiation of a portion of the plea agreement constitutes a repudiation of the entire plea agreement.” State v. Lange, 2003 WI App 2, ¶32, 259 Wis. 2d 774, 656 N.W.2d 480 (2002). Thus, the typical remedy is vacation of the entire plea agreement and the reinstatement of all charges, though this is not invariable: the court must “examine all of the circumstances of a case to determine an appropriate remedy for that case, considering both the defendant’s and the State’s interests.” (¶10 (citing State v. Robinson, 2002 WI 9, ¶48, 249 Wis. 2d 553, 638 N.W.2d 564)). The court of appeals says the circuit court didn’t cite or apply either of the above-cited cases, and that its failure to consider the correct law renders its discretionary call erroneous. (¶12).

The court goes on to hold that the circumstances here dictated full plea withdrawal as the remedy. The plea offer was “global.” (¶13). And deciding whether to accept it

necessarily required Bowser to weigh the pros and cons of going to trial in each case, and, in particular, the strength of the State’s evidence against him in each file. Thus, Bowser may not have agreed to plead guilty to the two counts in case No. 2016CF189 without the incentive of the State’s plea offer in case No. 2016CF11. This circumstance weighs in favor of permitting Bowser to withdraw his pleas in case No. 2016CF189, in light of his plea withdrawal in case No. 2016CF11.

(¶13).

And, the court says, the trial court’s remedy radically shifted the balance of what Bowser and the state had each given up; it wasn’t fair to keep only part of the bargain while discarding the rest:

At that point, the State had secured two felony convictions against Bowser, and Bowser was also facing four additional felony charges, three of which had previously been dismissed. The only benefit of the plea agreement that Bowser retained was the State’s agreement to cap its sentence recommendation on the two charges in case No. 2016CF189. The circuit court’s actions therefore placed Bowser in a significantly worse position than he had bargained for when he entered into the plea agreement. The State, in contrast, was placed in a better position than it had bargained for. It retained the benefit of Bowser’s two convictions in case No. 2016CF189, without the need for a trial, and it gained the opportunity to convict Bowser of three additional felony counts that had previously been dismissed. As Bowser aptly observes, by permitting plea withdrawal in case No. 2016CF11, but not case No. 2016CF189, and then granting the State’s motion to reinstate the additional charges in case No. 2016CF11, the circuit court allowed the State to “retain[] the benefit of the plea agreement without the cost.”

The court goes on to distinguish State v. Roou, 2007 WI App 193, ¶13, 305 Wis. 2d 164, 738 N.W.2d 173, which upheld a plea withdrawal on only one of two counts. In that case, unlike this one, the state had committed not to prosecute the withdrawn count, so the defendant, unlike the defendant here, retained the benefit of his bargain. (¶19).

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