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Plea bargain breach by prosecutor — negative allocution

State v. Aaron L. Wood, 2013 WI App 88; case activity

The state did not breach the plea agreement where the prosecutor, after making the agreed-upon recommendation, expressed alarm and concern at what he discovered in the PSI after the plea agreement was made and referred in his sentencing argument to the negative portions of the PSI. State v. Williams, 2002 WI 1, 249 Wis. 2d 492, 637 N.W.2d 733, distinguished:

¶11      While the prosecutor in this case did express “alarm[]” and “concern[]” regarding information he “learned” in reading the PSI, he highlighted for the court relevant factual information from the PSI without suggesting he was adopting any impression of the PSI author as his own or interjecting his own negative personal opinion of Wood to create the impression the State was backing away from the plea agreement.  Significantly, at no time did the prosecutor mention the harsher sentence recommended by the PSI author.  See [State v.Naydihor, [2004 WI 43,] 270 Wis. 2d 585, ¶29[, 678 N.W.2d 220] (distinguishing Williams in part due to the fact the prosecutor in Naydihor made no mention of the PSI’s sentence recommendation).  And when the prosecutor articulated the State’s recommendation, he did so without equivocation, clearly explaining why the recommendation was appropriate in light of the record before the court. We do not read the prosecutor’s comments as sending or attempting to send a covert message that the court should disregard the plea agreement and sentence Wood in a more severe manner than the State was actually recommending.

The court also rejects Wood’s claim that the prosecutor undercut the recommendation by “highlighting” the negative information in the PSI, saying Wood doesn’t identify positive portions the prosecutor should have highlighted and “has identified no case holding that, to avoid breaching a plea agreement, the State is required to make positive comments about the defendant.” (¶12). In any event, the court concludes, “the prosecutor appears to have been fair and measured in his comments[,]” citing statements by the prosecutor that are somewhat mitigating. (Id.).

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