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Plea Bargains — Breach: By Prosecutor — Negative Allocution

State v. Brian W. Sprang, 2004 WI App 121
For Sprang: Jefren E. Olsen, SPD, Madison Appellate

Issue: Whether the prosecutor breached the plea agreement, which called for recommendation of probation but left a free hand to argue terms and conditions, by expressly referring to the possibility of treatment in a prison setting and by implicitly endorsing PSI and sex offender report recommendations for prison.

Holding:

¶21 Turning back to Sprang’s claim, we conclude that this case is more akin to Williams than Naydihor. We begin our analysis by acknowledging, under Naydihor, that the terms of the plea agreement, which permitted the prosecutor to argue the length and terms of probation, provided the prosecutor with substantial latitude in his presentation of negative information about Sprang in an effort to persuade the sentencing court to impose a stayed sentence and to further impose a substantial period of confinement as a condition of probation. However, unlike the prosecutor in Naydihor who never mentioned prison time, the prosecutor in this case expressly referred to the possibility of a prison setting, even going so far as suggesting the term of confinement necessary to meet Sprang’s treatment needs. See Naydihor, 678 N.W.2d 220, ¶16.

¶22 Further distinguishing this case from Naydihor and likening it to Williams are the prosecutor’s observations that (1) both the PSI and sex offender assessment reports disagreed with the probation recommendation set out in the plea agreement; and (2) Sprang was “high risk” and had not previously done well on probation.

¶23 “[W]hat the prosecutor may not do is personalize the information, adopt the same negative impressions as [the author of the presentence investigation report] and then remind the court that the [author] had recommended a harsher sentence than recommended.” Williams, 249 Wis. 2d 492, ¶48 (citation and footnote omitted). While not expressly stating that he had changed his impression of Sprang, see id., ¶47, the prosecutor observed that he found it “troubling” that Sprang’s version of the offense in the PSI report contradicted his guilty plea, that he found it clear from the PSI report and sex offender evaluation that Sprang was “high risk,” and finally, that he was “concerned” that the PSI report and sex offender assessment did not agree with the plea agreement and made a recommendation of initial confinement in the three- to five-year range.

¶24 We conclude that the prosecutor’s comments, including a recitation of the PSI recommendation for confinement, constituted a breach of the plea agreement by “insinuat[ing] that [the State] was distancing itself from its recommendation,” see Naydihor, 678 N.W.2d 220, ¶28, and “cast[ing] doubt on … its own sentence recommendation.” See Williams, 249 Wis. 2d 492, ¶50. In doing so, we acknowledge the State’s contention that the prosecutor’s remarks were merely informative in nature. Such an argument begs the question. No doubt the prosecutor’s remarks were informative; however, the core inquiry is whether such “information” breached the terms of the plea agreement. Our inquiry does not turn on whether the prosecutor intended to breach the agreement, 6 see State v. Howland, 2003 WI App 104, ¶31, 264 Wis. 2d 279, 663 N.W.2d 340, but rather we look to the practical effect of the prosecutor’s statements. Here, that effect was to deprive Sprang of his constitutional right to the enforcement of the negotiated terms of his plea agreement. See Williams, 249 Wis. 2d 492, ¶37.


6 Nor does our inquiry turn on whether the sentencing court was influenced by the State’s breach. State v. Poole, 131 Wis. 2d 359, 363, 394 N.W.2d 909 (Ct. App. 1986). Therefore, we do not consider the trial court’s statement that it did not base its sentencing decision in this case on the State’s remarks.

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