State v. Miguel E. Marinez, Jr., 2008 WI App 105, (AG’s) PFR filed 7/15/08; prior history: certification, denied 4/3/08
For Marinez: Eileen A. Hirsch, SPD, Madison Appellate
¶1 At issue here is whether a trial judge is prohibited from informing a defendant that the judge intends to exceed a sentencing recommendation in a plea agreement and offering the opportunity of plea withdrawal. In State v. Williams, 2000 WI 78, 236 Wis. 2d 293, 613 N.W.2d 132, the supreme court declined to adopt a new rule mandating that judges follow this practice. Here, the State argues that the reasoning employed in Williams dictates that a judge may not tell a defendant that the judge intends to exceed a sentencing recommendation. We disagree, and conclude that trial judges may employ this practice. Accordingly, we affirm. 
This decision has the potential to affect day-to-day practice throughout the state. A judge is not required to announce his or her intent to refuse to follow a plea-bargained sentencing recommendation, as the supreme court has repeatedly said, not just in Williams but in State v. Betts, 129 Wis. 2d 1, 2 (1986) and In re Amendment of Rules of Civil & Criminal Procedure: Sections 971.07 & 971.08, Stats., 128 Wis. 2d 422, 425 (1986). Now, for the first time (in this state anyway), an appellate court says that a judge can follow exactly that practice. As the court noted in its certification request, “we believe this is a widespread practice”; widespread already, and perhaps bound to proliferate even more after this green light.
Marinez’s judge accepted his plea, turned to sentencing and then said after hearing some of the background that she wasn’t going to follow the recommendation but that Marinez could withdraw the plea. The state objected, appealed, and the court now authorizes plea-withdrawal. Does it matter that all this occurred in a post-plea setting? Not according to a tantalizingly vague footnote dropped by the court, ¶8 n. 2: “whatever is permissible or required in the post-plea context should seemingly apply in the pre-plea context.” Undertaking this is in a pre-plea setting will require that one eye be fixed simultaneously on the well-settled rule against judicial participation in plea bargaining, State v. Antoine T. Hunter, 2005 WI App 5, a rule that remains in place. The net effect may well be to bring, via caselaw, Wisconsin practice under the same procedure followed in federal court under FRCrP 11(c) (very roughly, and subject to certain exceptions: district court may reject plea agreement but then must allow defendant opportunity to withdraw plea; nonetheless, the district court is absolutely barred from participating in plea bargaining). In other words, Rule 11 caselaw may very well become relevant to Wisconsin practice. Compare, for example, United States v. Bradley, 455 F.3d 453, 460 (4th Cir. 2006) (judge’s encouragement to accept government’s plea offer amounted to proscribed judicial participation in process) with, United States v. Frank, 36 F.2d 898 (9th Cir. 1994) (parties revealed just-concluded negotiation to judge in his chambers during recess in on-going jury trial; held non-coercive: judge had to know if he was going to follow agreement so he’d know whether to discharge jury).