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.
¶13 We conclude that the deferred prosecution agreement unambiguously provides that, in the event that Kaczmarski breaches the agreement, the district attorney may resume prosecuting Kaczmarski only during the deferral period. The agreement plainly states that, if Kaczmarski violates the agreement, “the District Attorney may, during the period of deferred prosecution … prosecute you for this offense.” (Emphasis added.) As Kaczmarski argues, resumption of the prosecution after the deferred prosecution period expired is not a remedy provided by the agreement. The agreement provides the State with two potential remedies in the event of a breach: revocation/modification of the agreement or prosecution on the charged offense, neither of which is permitted after the deferred prosecution period has expired. We conclude that the only reasonable construction of the deferred prosecution agreement is that the district attorney may resume prosecuting Kaczmarski for breach of the agreement only before the agreement expires.
Deferred prosecution agreements are regulated by statute, § 971.37; K. argues that the statute compels relief, but the court holds that argument forfeited, ¶8. In theory, then, the opinion only interprets the language of this particular agreement, and observes by way of dicta:
¶19 It may be that the prosecutor here should have included a provision that permitted a resumption of prosecution for a breach after the deferral period. But we may no more write such a term into this agreement than we may write such a term into the statute.
But is that right? It is not so easy, after all, to ignore the statutory scheme, notwithstanding K.’s failed invocation of it. For starters, § 971.37(2) clearly seems to condition termination of the agreement (and thus resumption of the prosecution) on written notice “prior to completion of the period of the agreement.” On top of that, subs. (3) clearly seems to mandate dismissal with prejudice “(u)pon completion of the period of the agreement, if the agreement has not been terminated under sub. (2).” And compare § 971.39(1)(f) (at once broader, in that it applies to almost all crimes, and narrower, in that it applies only to smaller counties—dismiss with prejudice “upon the completion of the period of the agreement”). Can an agreement provide, in seeming contravention of the statutory scheme, for resumed prosecution after the period of the agreement? Maybe, according to ¶19, but the possibility is far from self-evident, as the court itself suggests:
¶18 Moreover, the State’s policy argument is undercut by the plain language of the deferred prosecution agreement statute, Wis. Stat. § 971.37(1m)(b).  As the prosecutor did here, the legislature plainly limits the time period in which prosecutions may be resumed. Section 971.37(2) provides that the “written [deferred prosecution] agreement shall be terminated and the prosecution may resume upon written notice by either the person or the district attorney to the other prior to completion of the period of the agreement.” (Emphasis added.) It is unreasonable to argue that an individual deferred prosecution agreement is against public policy when the legislature has adopted by statute the very provision being objected to.
It is hardly unreasonable to argue that an agreement is against public policy when it contravenes the very legislation that authorizes it.