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Post-Sentencing Plea-Withdrawal – Grounds: Misapprehension re: Plea Bargain Term (State’s Authority to Argue Facts Underlying Dismissed Charge)

State v. Richard L. Wesley, 2009 WI App 118, PFR filed 8/4/09

For Wesley: Alvin Ugent

Issue/Holding:

¶24      Here, as we said, Wesley claims that he understood the term “dismissed outright” to mean that the State could never use the underlying facts against him. He claims that his trial counsel was ineffective for failing to object. He also claims that, if the plea agreement was ambiguous, he should have known about it and lays the blame at counsel’s feet. These are all facts, which if true, would entitle him to relief. The trial court rejected the call for a hearing by deciding that the agreement was not ambiguous. We have already held otherwise. This leaves many facts to be parceled out and they can come out at a Machner hearing only. We reverse and remand with directions that the trial court conduct a Machner hearing. At this hearing, should Wesley decide to testify about whether he knowingly and intelligently understood the terms of the plea agreement, the court shall make findings of fact regarding this issue as well as any ineffective assistance of counsel claims before the court.¶25      We also point out that there is another question that the parties must flesh out on remand. The law in Wisconsin is that “[a]greements by … prosecutors … not to reveal relevant and pertinent information to the trial judge charged with the duty of imposing an appropriate sentence upon one convicted of a criminal offense, are clearly against public policy and cannot be respected by the courts.” Grant v. State, 73 Wis. 2d 441, 448, 243 N.W.2d 186 (1976). Whether the State was merely providing pertinent and relevant information or went beyond it by using it to augment its argument in favor of incarceration is a question to be decided on remand. This question will come into play with respect to the ineffective assistance of counsel claims. It is up to the parties, and ultimately the trial court, to measure the extent by which the policy impacts the result.

This is an exceptionally readable opinion, a genuine pleasure to read, but the court inexplicably stumbles a bit just before the finish line. Most significantly: the court acknowledges that Wesley may well be entitled “to relief,” but simply does not say explicitly what form of relief he’s eligible for. Presumably, it’s like this: notwithstanding ambiguity in the provision, if Wesley reasonably thought it meant no-allocution, then his reasonable assumption will be enforceable at a resentencing; nonetheless, if the provision is deemed, per Grant, violative of public policy, then the court may not enforce it and the remedy necessarily would be limited to plea-withdrawal. To be sure, the court doesn’t spell any of this out, but that seems to be what the court is driving at. Grant is, as the quote indicates, clear enough about unenforceability, but it expressly avoided the question of plea-withdrawal, 73 Wis. 2d at 447. However, a federal habeas court subsequently ordered plea-withdrawal, Grant v. Wisconsin, 450 F. Supp. 575 (E.D. Wis. 1978).

One last thing, totally tangential: spell-check can be your best friend or your worst enemy (“The State then explained that the witness lost site of the vehicle,” ¶5).

 

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