Issue1: The terms of the plea agreement and the relevant state’s conduct are questions of fact, reviewed deferentially; whether that conduct amounts to a material and substantial breach is a question of law, reviewed independently. ¶4. The court clarifies, in the face of prior conflicting lower court opinions, the viability of this approach, ¶9, rejecting in the process two “tangential” claims. First, the state argues that, because the defendant must show a breach by clear and convincing evidence, he or she must similarly persuade the appellate court. ¶13. The court doesn’t buy it: the burden of persuasion is directed to the fact-finder, not the appellate court. ¶12; “we do not graft the clear and convincing evidence burden of persuasion to the standard of review applied to questions of law in breach of plea agreement cases.” ¶15. Second, the defendant invokes the “close case” rule — where it is difficult to discern whether the state undermined the plea agreement, the operative principle is that plea agreements are construed in favor of the defendant; thus, in the event of uncertainty as to a breach, the defendant nonetheless prevails. ¶17. The court rejects this argument, for much the same reasons as it rejected the state’s mirror-image claim. ¶19. In sum:
¶20. For the reasons set forth, we review the circuit court’s determination of historical facts, such as the terms of the plea agreement and the State’s conduct that allegedly constitutes a breach, under the clearly erroneous standard of review and then determine whether the State’s conduct constitutes a substantial and material breach of the plea agreement as a question of law. Consequently, we reject the clear and convincing evidence rule and the close case rule.
¶34. The circuit court in the present case did not, however, base its interpretation of the prosecutor’s comments on its recollection of the sentencing hearing, which would have included memories of voice inflections, observed facial expressions, and pauses in the testimony. The post- conviction hearing was held seven months after the sentencing proceeding, and it is obvious from the record that the circuit court did not recollect the sentencing proceedings. Rather, the circuit court interpreted the prosecutor’s comments by reading the written record of the plea and sentencing hearings.¶35. The meaning of words in a document that is not dependent on a fact-finder’s appraisal of the demeanor or credibility of a witness is a question of law to be determined independently by the reviewing court. Thus, the interpretation of the written transcript of the prosecutor’s comments in the present case is a question of law to be determined independently by this court, not a question of fact to be given deference as the State asserts.