Stewart was convicted of reckless injury, reckless endangerment, and felon in possession after he shot at and injured a police officer executing a warrant at a home where Stewart was staying. (¶2). Under the plea agreement the state agreed to recommend a “global” 25-year sentence (15 in, 10 out); the state did so, but the injured officer, along with another officer who narrowly missed being injured, submitted victim impact statements asking for the maximum sentence on each count. (¶3). Stewart claimed the officers’ sentencing requests constituted a breach of the plea agreement under State v. Matson, 2003 WI App 253, 268 Wis. 2d 725, 674 N.W.2d 51.
In Matson, the defendant pled guilty to abduction of a child and burglary and the parties agreed to make a joint sentence recommendation. 268 Wis. 2d 725, ¶2. After the plea hearing, but prior to the sentencing hearing, the investigating detective in the case wrote a five-page letter to the sentencing judge, on police department stationery, explaining why he disagreed with the plea agreement, and asking for the maximum sentencing on all charges. Id., ¶3. The court of appeals held that “[t]he law enforcement officer’s letter, written as the chief investigative officer of this criminal matter and on police department letterhead,” constituted a breach of the plea agreement; “[b]ecause an investigative officer is the investigating arm of the prosecutor’s office, principles of fairness and agency require us to bind the investigating officer to the prosecutor’s bargain.” Id., ¶¶23, 26.
The court of appeals rejects Stewart’s reliance on Matson:
¶15 Here, … the police officers were not speaking to the court as investigating officers, but as victims of a crime, which they have a right to do. In Wisconsin, every crime victim has the right “to make a statement to the court at disposition.” Wis. Const. art. I, § 9m; see also Wis. Stat. § 972.14(3)(a) (“If a victim wants to make a statement, the court shall allow the victim to make a statement in court or to submit a written statement to be read in court.”); Wis. Stat. § 950.04(1v)(m) (“Victims of crimes have the following rights: … To provide statements concerning sentencing, disposition, or parole[.]”). So important is that right that the legislature has permitted a $1000 forfeiture to be imposed on prosecutors who refuse to allow victims to present statements if they so desire. See Wis. Stat. § 950.11. A victim’s right to provide a statement at sentencing expressing his or her view as to disposition is to be “honored and protected … in a manner no less vigorous than the protections afforded criminal defendants. Wis. Stat. § 950.01. Neither § 950.01 nor the Wisconsin Constitution except police officer crime victims from the right to provide an impact statement at sentencing. Because the officers here were speaking in their capacity as victims, and not as agents of the State, the State did not breach the plea agreement, and Stewart’s constitutional right to the enforcement of the agreement was not violated. …
The court also rejects Stewart’s claim that under State v. Harvey, 2006 WI App 26, 289 Wis. 2d 222, 279 N.W.2d 482, the prosecutor breached the agreement because rather than disavowing the victims’ recommendation, he “ratified” it, referring to them in their official capacity as “officers” and stating “I like the way Officer Justus [the uninjured officer] puts it.” (¶16). In addition to the prosecutor’s comments being consistent with the power to advise the court of aggravating sentencing factors (¶¶17-18), “Harvey does not stand for the proposition that a prosecutor must disavow a victim’s sentencing recommendations when they differ from the plea agreement…. Nor do we impose such a requirement now.” (¶19).
As noted in our post on Harvey, the relatively few decisions on the issue suggest a near absolute right of victim allocution. Keep that in mind when you are negotiating sentencing recommendations in cases in which a victim is also an officer involved in the case in an official capacity.