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Sentencing – Discretion – Victim Allocution

State v. Christina L. Contizano, 2011AP477-CR, District 4, 10/27/11

court of appeals decision (1-judge, not for publication); for Contizano: Robert C. Howard III; case activity

At Contizano’s sentencing for obstructing, based on lying to the police about her daughter’s location, the trial court didn’t erroneously exercise discretion in allowing Contizano’s ex-husband to advocate as a “victim” of the offense, in favor of a term of incarceration.

¶7        We conclude the court did not erroneously exercise its discretion when it considered the Walworths’ statements at sentencing.  Wisconsin Stat. § 972.14(3)(a) requires that the sentencing court allow a victim to make a statement to the court prior to sentencing if the victim wants to make a statement.  Wisconsin Stat. § 950.02(4) defines the term “victim” as that term is used in § 972.14(3)(a).  Specifically, it provides that the term “victim” includes: (1) “A person against whom a crime has been committed”; and (2) “If the person specified in subd. 1. is a child, a parent, guardian or legal custodian of the child.”  § 950.02(4)(a)-(b).  In addition to mandating that the court permit a victim to make a statement at sentencing, Wis. Stat. § 972.14(3)(a) also provides that the court may allow “any other person” to make or submit a statement.

¶8        Contizano provides no persuasive reason why the Walworths cannot be considered victims under that statute.  Instead, Contizano notes that “[m]any crimes define intentional acts done to or directed at a certain victim.  The crime of obstruction does not refer to an act done to a specific victim.”  However, Wis. Stat.§ 972.14(3)(a) does not limit the “victims” that may make a statement at sentencing to those that are identified in the statute defining the crime.

Nor, even if the challenged statements were made by “any person” other than a victim, as authorized by § 972.14(3)(a), did the sentencing court give them undue weight; accordingly, the sentence wasn’t an erroneous exercise of discretion no matter how authorization for the statements, ¶¶10.

Plea Bargain – Victim’s Allocution 

¶11      We next address Contizano’s contention that the prosecutor’s statement to the court referring to the Walworths as “victims” violated the plea agreement. When we review an alleged breach of a plea agreement where the facts are undisputed on appeal, the question is one of law to be reviewed de novo.  See Harvey, 289 Wis. 2d 222, ¶31.  An “end-run” around a plea agreement constitutes a breach, just as an explicit repudiation does.  Id., ¶32.

¶12      We conclude the State did not breach the plea agreement by referring to the Walworths as “victims.”  Contizano concedes that the prosecutor never mentioned the charges that the State had agreed not to discuss pursuant to the plea agreement.  The prosecutor merely responded to the court’s question as to whether any victims wished to make a statement at the hearing.  Contizano has not presented a developed argument explaining why this response was either an explicit repudiation or an “end-run” around the terms of the plea agreement.  To the extent Contizano may be suggesting that the prosecutor was involved in bringing the Walworths to court so that they or their attorney could make comments that the State was not permitted to make under the plea agreement, there are no facts of record that support this conclusion.

The victims (to use the court’s label) asked for 9 months in jail, ¶4. Not clear, from the opinion, just how or whether the plea bargain restricted the prosecutor’s allocution. Assuming that the prosecutor couldn’t have urged the same result as the victims, then as the court suggests, the question would be the level of State involvement in the victims’ allocution. SeeState v. Clement, 153 Wis. 2d 287, 302, 450 N.W.2d 789 (Ct. App. 1989) (“The plea agreement applied to the prosecutor’s recommendation alone. There is no evidence that the prosecutor advised or encouraged the victim and her fiance to recommend the maximum sentence.”).

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