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Plea Bargains — Breach: By Prosecutor — Recommendation of Consecutive Terms Where Agreements Required Recommendation of Concurrent Terms

State v. Michael F. Howard, 2001 WI App 137, 630 N.W.2d 244

Issue: Whether the prosecutor breached a plea bargain calling for a maximum recommendation on multiple counts of concurrent terms of 25 years in prison, when the actual recommendation was for a total of 25 years but included consecutive terms.

Holding:

¶18 Undoubtedly, one of the most crucial issues in a plea agreement is the recommendation concerning length of time to be served on each count. However, whether sentences are to be concurrent or consecutive is also extremely important. The designation of concurrent or consecutive time can affect the actual amount of time served, the application of pre-sentence credit, parole eligibility dates, the date a defendant is allowed access to rehabilitative services, and other factors. See, e.g., State v. Tuescher, 226 Wis. 2d 465, 469, 595 N.W.2d 443 (Ct. App. 1999) (If the sentences are concurrent, time spent in pre-sentence custody is credited toward each sentence, but if the sentences are consecutive, time in pre-sentence custody is credited toward only one sentence.). A recommendation of concurrent sentences can also send a signal to the trial court that the agreement contemplates a lesser sentence than one where consecutive sentences are recommended.

¶19 Thus, there are a variety of important reasons why a defendant may choose to negotiate for a promise to recommend concurrent time. We conclude that where a plea agreement undisputedly indicates that a recommendation is to be for concurrent sentences, an undisputed recommendation of consecutive sentences that is not corrected at the sentencing hearing constitutes a material and substantial breach of the plea agreement as a matter of law.

 

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