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No violation of DPA; charged offense was supported by factual basis

State v. Brandon E. Jordan, 2015AP2062-CR, 10/6/16, District 4 (1-judge opinion; ineligible for publication); case activity (including briefs)

Jordan violated the terms of his Deferred Prosecution Agreement and received a warning letter which resulted in a 6-month extension of the agreement with new conditions. He then violated the conditions of the extension, and was terminated from the Deferred Prosecution Program. He argued that his termination violated the terms of the DPA.

Applying principles of contract law, the court of appeals held the opposite:

¶13 . . . Jordan takes the position that because he reached an agreement with the Program to extend the time he had to complete his agreed upon conditions, the Program was obligated to send him an additional warning letter when he still failed to comply with the conditions. However, Jordan does not direct this court to language in the deferred prosecution agreement or in the grievance procedure requiring an additional warning letter, and this court’s review of those documents reveals none.

¶14 Jordan argues that “the only reasonable interpretation of” the deferred prosecution agreement and grievance procedure is that a new warning letter was required because “there was never a chance to” appeal his termination from the Program to the district attorney. However, Jordan does not argue that the documents are ambiguous. When the terms of a contract are unambiguous, this court construes the contract as it stands. Id. Nothing in the plain language of the agreement imposes an obligation on the Program to send Jordan a second warning of noncompliance.

The court further held that even if Jordan should have received a second warning letter, the error was harmless because he failed to prove that he would have received a 2nd extension of the DPA or any other opportunity to complete the conditions that he had utterly failed to comply with. ¶15.

Jordan also argued that he was entitled to withdraw his guilty plea to violation of a harassment injunction because there was no factual basis to support the charge. The court of appeals rejected this argument too because his lawyer stipulated to the facts alleged in the complaint, and those facts showed each element of the charged offense.

¶21 Jordan, through his trial counsel, agreed at the plea hearing that the criminal complaint could be relied on as the factual basis for his plea. Where the facts set forth in the complaint meet the elements of the crime charged, those facts may form the factual basis for a plea, and the circuit court need not look any further to establish a factual basis. Black, 242 Wis. 2d 126, ¶14. In Thomas, the supreme court stated that when counsel stipulates on the record to facts in the criminal complaint, a factual basis is established. Thomas, 232 Wis. 2d 714, ¶21. Properly understood, this is a reference to defense counsel’s agreement that the circuit court may look to facts in a criminal complaint and that such facts, if true, constitute the crime.

¶24 To prove that a harassment injunction issued under WIS. STAT. § 813.125(4) was violated, the State had to prove: (1) an injunction was issued against Jordan in favor of another individual; (2) Jordan committed an act that violated the terms of the injunction; and (3) Jordan knew that the injunction had been entered and that his act violated its terms. See WIS. STAT. § 813.125(7); WIS JI—CRIMINAL 2040. The complaint alleged that J.H. has an active restraining order against Jordan, that Jordan, who was at the same bar as J.H., made eye contact with J.H. and got within five feet of J.H. three times, that Jordan was in violation of the restraining order, and that Jordan knew that J.H. had taken out a retraining order against him. The complaint thus shows that each element of the offense is met.

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