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Plea Bargains — Breach: By Prosecutor — “End-run” of Allocution Restrictions

State v. Dalvell Richardson, 2001 WI App 152
For Richardson: Richard D. Martin, SPD, Milwaukee Appellate

Issue: Whether the prosecutor breached a plea agreement “to leave the length of the incarceration entirely up to the Court, [without] any specific numerical type of recommendation” with allocution that clearly implied a request for a lengthy term.

Holding: The prosecutor’s comments (to the effect that this was one of the most serious cases the prosecutor had handled) didn’t breach an agreement to recommend incarceration without specifying length:

¶11. Without full context, a review of the prosecutor’s introductory sentencing remarks might very well lead one to conclude that the prosecutor was attempting an ‘end-run’ around the intent of the plea agreement. This first blush reaction, however, is not warranted when we consider the remarks in their full context. A complete review of the sentencing transcript reveals that Richardson’s defensive ploy was to divert attention to his unknown accomplice, and to deflect responsibility onto the accomplice as the mastermind because the accomplice knew the home was a drug house used by individuals with prior drug convictions and an easy mark. Viewed in this light, it is not unreasonable to conclude that the prosecutor’s comments were intended only to keep the factors for sentencing in their proper perspective. A fundamental element of due process is the right of each party to present evidence to rebut an opponent. Washington v. Texas, 388 U.S. 14, 19 (1967). When a party opens the door on a subject, he cannot complain if the opposing party offers evidence on the same subject to explain, counteract, or disprove the evidence. United State v. Touloumis, 771 F.2d 235, 241 (7th Cir. 1985).

¶12. Further, the court found that the plea agreement did not prohibit the prosecutor from ‘setting forth its honest opinion of the nature of the offense, i.e. that it was one of the most serious armed robberies it had dealt with.’ The plea agreement indicated the State would not make a specific recommendation. The State did not. The comments that Richardson refers to as attempting an ‘end-run’ around the agreement, taken in context, provided the trial court with relevant information, which cannot be immunized by a plea agreement or bargained away. Elias, 93 Wis. 2d at 285; McQuay, 154 Wis. 2d at 125-26.”

Compare with State v. John D. Williams, 2002 WI 1 (breach discerned, because the state “undercut the essence of the plea agreement”).

The principle that the prosecutor can’t withhold relevant information from the sentencing court sometimes offers an irresistable temptation — see, e.g., U.S. v. Vaval, 2nd Cir No. 04-0121-cr, 4/12/05 (government’s “highly negative characterizations” of defendant, such as “appalling” and “disingenuous” can’t be considered “information relevant to sentencing”).

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