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Plea Bargains — Breach: By Prosecutor — Negative Allocution

State v. Jesse Liukonen, 2004 WI App 157
For Liukonen: Russell L. Hanson

Issue:Whether the State breached the plea agreement to cap its sentencing recommendation at a total of 17 years’ incarceration, by asserting: “the more I looked at this case, the more I heard from the victims, the more I argue today, I realize that Mr. Liukonen I think got an extreme break by the system here”; that Liukonen was facing “a phenomenal amount” of time, but “even if the Court goes along with the proposed sentence recommendation, I think he will be getting a tremendous break from the system, but it has been agreed to,” ¶4.

Holding:

¶10. The plea agreement breach topic we address today involves a “fine line.” Plea agreements in which a prosecutor agrees to cap his or her sentencing recommendation and hopes the court will impose the full recommendation “represent a fine line for the State to walk.” …

¶11. Prosecutors may provide relevant negative information and, in particular, may provide negative information that has come to light after a plea agreement has been reached. However, prosecutors may not make comments that suggest the prosecutor now believes the disposition he or she is recommending pursuant to the agreement is insufficient. …

¶13. We acknowledge the challenge faced by prosecutors, but conclude that the prosecutor in this case crossed the “fine line.” …

¶14. For the most part, the prosecutor’s remarks constituted fair comment on the seriousness of Liukonen’s conduct, criminal history, and character, even when the prosecutor employed strong language. However, the prosecutor also talked about information he had learned and testimony he had heard after he entered into the plea agreement, and then used language suggesting he now thought the agreement was too lenient. …

¶15 … These comments communicated to the circuit court that the prosecutor was making the plea agreement recommendation because he was bound to do so, not because he thought it constituted an appropriate prison term. …

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