A “misunderstanding” about what sentence the state could recommend under the plea agreement did not entitle Fortes to plea withdrawal or resentencing because after the misunderstanding became evident at the sentencing hearing, Fortes elected to proceed rather than seek an adjournment with a possible eye toward plea withdrawal.
The state believed the plea deal left it free to argue the sentence, but Fortes and his trial lawyer believed the state was obliged to make no recommendation and leave the sentence up to the court. The misunderstanding became evident at the time of sentencing, so trial counsel discussed it with Fortes and told the court that “this is not something that he wants to withdraw his plea over and he’s prepared to proceed to sentencing.” Fortes confirmed that on the record and the judge proceeded to sentence him. (¶¶5-7).
Postconviction, Fortes sought resentencing or, in the alternative, plea withdrawal. Neither the plea colloquy nor the plea questionnaire laid out the terms of the deal, so the circuit court held a hearing at which it found there was a mutual misunderstanding about the plea agreement and therefore no plea agreement at all. (¶¶10-11). This finding is not clearly erroneous (¶22) and it dooms Fortes’s claim that the state breached the plea agreement by making a specific sentence recommendation and that trial counsel was ineffective for failing to object to the breach. (¶¶29-30). As for plea withdrawal, that claim is waived:
¶23 …. While a defendant may generally be able to wait until after sentencing to decide whether to allege a deficiency in the plea colloquy, see [State v.] Brown, [2006 WI 100,] 293 Wis. 2d 594, ¶38, [765 N.W.2d 794,] we are not convinced that proposition applies where a concern about the defendant’s understanding of the plea has been raised prior to sentencing and the defendant specifically elects to proceed with sentencing. Indeed, our supreme court has recognized that a defendant can waive his right to object if he “persist[s] in a plea strategy after the basis for the claim of error is known to [the] defendant.” See Farrar v. State, 52 Wis. 2d 651, 660, 191 N.W.2d 214 (1971). Here, Fortes explicitly elected to proceed with the sentencing, despite knowing that he had a different understanding of the plea agreement than the State and that the State intended to recommend a specific sentence. In doing so, Fortes waived his right to subsequently seek plea withdrawal based on his misunderstanding of the plea agreement, the trial court’s plea colloquy, or the State’s decision to recommend a specific sentence. See id.
The court likens Fortes’s case to State v. Paske, 121 Wis. 2d 471, 360 N.W.2d 695 (Ct. App. 1984), where, after the state sought to change its agreed-upon recommendation in light of the defendant’s post-plea criminal conduct, the defendant decided to agree to the new recommendation rather than withdraw his plea. (¶¶24-25). It distinguishes State v. Scott, 230 Wis. 2d 643, 602 N.W.2d 296 (Ct. App. 1999), where the prosecutor sought to change the recommendation unilaterally even though the defendant did nothing to violate the agreement: “the State did not seek to unilaterally modify what it previously agreed to recommend. Rather, the State believed that the agreement was that it was free to argue, while trial counsel and Fortes believed the State had agreed not to make a specific recommendation. Thus, there was a mutual misunderstanding.” (¶27).