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Guilty Pleas – Plea Bargains – Breach: By Prosecutor – End-Run (“Negative Allocution”)

State v. Rudolph L. Jackson, 2004 WI App 132, PFR filed 6/15/04
For Jackson: Andrea Cornwall, SPD, Milwaukee Appellate

Issue: Whether the prosecutor violated an agreement not to make a specific sentencing recommendation by expressing outrage at recommendations proffered on Jackson’s behalf and by urging the court to take into account the deterrent effect of its sentence.

Holding:

¶14. Jackson contends that the prosecutor breached the plea negotiation as his statements constituted an “end-run” around the prosecutor’s agreement not to recommend a specific sentence. He claims that the prosecutor’s comments were designed to influence the severity of the sentence. A similar complaint was made in State v. Ferguson, 166 Wis. 2d 317, 479 N.W.2d 241 (Ct. App. 1991). There, the prosecutor agreed to recommend imposed and stayed sentences, the length of which was to be determined by the trial court, followed by twenty years’ probation. Id. at 319. The trial court declined to follow the State’s recommendation and, instead, sentenced Ferguson to six years’ imprisonment on one charge and stayed a ten-year prison sentence on the other, and placed Ferguson on probation for fifteen years. Id. at 320. Ferguson claimed that the prosecutor’s comments “amounted to an `explicit and outrageous character assault.'” Id. at 324. In concluding that the prosecutor’s comments were appropriate, we observed: “At sentencing, pertinent factors relating to the defendant’s character and behavioral pattern cannot be `immunized by a plea agreement between the defendant and the [S]tate.'” Id. at 324 (citation omitted). “A plea agreement which does not allow the sentencing court to be apprised of relevant information is void as against public policy.” Id.

¶15. That is exactly what occurred here. The prosecutor wanted the trial court to know all of the relevant information concerning Jackson and to consider the impact of the sentence before it sentenced Jackson. The plea agreement permitted the prosecutor to supply this information. The fact that the prosecutor’s comments were compelling and delivered by “strong words” did not transform the commentary into a plea bargain violation.

Increasing number of Wisconsin cases on this point make it less necessary to consult foreign authority. Nonetheless, there’s a good discussion worth reviewing, in U.S. v. Hodge, 3rd Cir No. 02-1817, 6/27/05 (government’s comments implied that defendant should not be released and therefore amounted to request for life sentence, thus violating agreement not to recommend specific sentence); State v. Foster, KS App No. 97,407, 4/11/08 (“Foster’s prosecutor said that she recommended probation, but the words she used do not meet the minimum requirements for a recommendation. Recommend means ‘to praise or commend (one) to another as being worthy or desirable,’ or ‘to make (the possessor, as of an attribute) attractive or acceptable.’ American Heritage Dictionary 1460 (4th ed. 2000). The prosecutor here did not state anything that would cause an objective person to conclude that probation was worthy, desirable, attractive, or even acceptable.”) Some good language, too, albeit with unfavorable result, in U.S. v. Salazar, 7th Cir No. 05-1673, 7/13/06.

 

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