¶46. We must examine the entire sentencing proceeding to evaluate the prosecutor’s remarks. Upon reviewing the State’s comments in the context of the sentencing hearing, we conclude, as a matter of law, that the State stepped over the fine line between relaying information to the circuit court on the one hand and undercutting the plea agreement on the other hand. The State substantially and materially breached the plea agreement because it undercut the essence of the plea agreement.
¶47. In this case the State’s recitation of the plea agreement was less than neutral. In her statements to the sentencing court, the prosecutor implied that had the State known more about the defendant, it would not have entered into the plea agreement. For example, the prosecutor stated, ‘After reading through the presentence, it appears that I think I can best describe my impression of this defendant as manipulative and unwilling to take any responsibility. I have had an occasion to speak with [the defendant’s ex- wife]. And she has indicated things that she will be presenting to the Court. But it was quite a contrast, speaking with her and reading and learning about [the defendant].’ (Emphasis added.)
¶48. The State adopted the information acquired from the presentence investigation report after the plea agreement had been reached as its own opinion of the defendant. The prosecutor’s declaration of her personal opinion created the impression that the prosecutor was arguing against the negotiated terms of the plea agreement. We agree with the court of appeals that ‘what 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. That is what happened here.’”
¶49. The impression that the State was backing away from the plea agreement was furthered by the fact that the prosecutor began her comments to the sentencing court by stating, ‘When Mr. Williams entered his plea . . . we had told the Court that we would be recommending . . . that he be placed on probation, that he pay arrearages and pay current child support.’ (Emphasis added.) The words ‘would be’ intimate that a change of the State’s plans would be revealed.
And: The fact that the prosecutor reiterated an intent to abide by the agreement was overshadowed by having “adopted as its own opinion the negative information regarding the defendant that was otherwise available to the court.” ¶51.
Court reviews and discusses various other “end-run” cases. ¶¶54-58.
See also U.S. v. Gonczy, 1st Cir. No. 02-2399, 2/2/04 (government’s “initial recommendation,” which was as nominally required by the agreement, nonetheless “was undercut, if not eviscerated, by the AUSA’s substantive argument to the district court”); U.S. v. Rivera, 3rd Cir. No. 02-3067, 2/9/04 (government breached agreement to recommend offense level of 35 when it stated, “we stand by the probation officer’s conclusion,” which included recommendation of level 39 — government thereby “in efect” endorsed level 39), rehearing denied, 4/15/04; U.S. v. Vaval, 2nd Cir No. 04-0121-cr, 4/12/05 (government’s statement that it was not seeking upward departure — which the agreement prohibited — didn’t insulate against finding of breach if comments indeed amount to such request; and, highly negative characterization of defendnat amounted to such request, hence was breach).