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Illegal Plea Bargains – “Reopen and Amend”

State v. James Stoner, III, 2009AP2963, District 2, 9/22/10

court of appeals decision (1-judge, not for publication); for Stoner: Joshua Davis Uller; BiC; Resp.; Reply

“Reopen-and-amend” plea bargains, “referring to those plea bargains where the State and defendant agree that a judgment of conviction, once announced, will be amended by the State upon the happening of some future event. … are illegal because judgments, once announced, may not be amended by a prosecutor,” ¶1. State v. Hayes, 167 Wis. 2d 423, 481 N.W.2d 699 (Ct. App. 1992); State v. Dawson, 2004 WI App 173, 276 Wis. 2d 418, 688 N.W.2d 12. Thus, effect could not be given Stoner’s plea-bargained disposition which reduced felony charges to 3 misdemeanors with a term of probation and the proviso that if he committed another crime or his probation was revoked, the already-entered plea would be vacated and he would enter a guilty plea to one of the originally-charged felonies. The court holds that the remedy is to return the parties to the pre-plea stage, the court rejecting Stoner’s argument that his plea to reduced charges must be kept intact because it was knowing and voluntary, ¶8 (“because the reopen and amend provision was a legal impossibility from the get-go, Stoner could not have knowingly bargained for it. … Under Dawson, a legal impossibility renders the resulting plea “neither knowing nor voluntary.” Dawson, 276 Wis. 2d 418, ¶14.”)

The court also rejects a double argument, premised on the idea that once Stoner was placed on probation he suffered punishment and therefore can’t be made to run the gauntlet again:

¶10      He acknowledges that his double jeopardy argument only works if he had an expectation in the finality of the previous judgment. See State v. Jones, 2002 WI App 208, ¶10, 257 Wis. 2d 163, 650 N.W.2d 844 (noting that “the analytical touchstone for double jeopardy is the defendant’s legitimate expectation of finality in the sentence”). And he further acknowledges the State’s argument that a plea which is legally unenforceable is not a plea to which a defendant can legitimately argue is final and binding. See State v. Helm, 2002 WI App 154, ¶17, 256 Wis. 2d 285, 647 N.W.2d 405 (holding that where a court imposes an illegal or invalid sentence, a resentencing that increases the sentence did not violate the defendant’s double jeopardy protections)….

¶11      … As the State points out, Stoner is not being faced with “reimposition” of a sentence. Rather, the sentence is a nullity. It is as if it never existed. To the extent that Stoner may argue that the placement on probation really happened and thus a curtailment of his liberty likewise really happened and cannot be erased, the plain fact is that the probation came with all kinds of conditions that were never fulfilled. If he had successfully completed his probation, he would have gained the advantage of a permanent shield from exposure to the two felony counts that were reduced to misdemeanors. And because he did not successfully complete his probation, he would have had to plead to a felony but for the illegality of the reopen-and-amend provision. In other words, he cannot reasonably argue that he expected finality of a sentence where probation was only a facet of the totality of the bargain.

Also of potential interest, at least at a level of general principle, even if not couched in double jeopardy terms: State v. Sepulveda, 119 Wis. 2d 546, as clarified on reconsideration, 120 Wis. 2d 231 (1984) (“As stated in the concurring opinion, the imposition of probation was a nullity upon the impossibility for the condition of probation to be satisfied. The trial court, given the impossibility of fulfillment, was then free to modify its original sentence by imposing a new sentence of three years imprisonment.”). But Sepulveda hadn’t really begun serving probation, he demonstrated to the trial court that probation wouldn’t accomplish the court’s explicit aim, so the court modified to an active sentence what was really a probation try-out that hadn’t gone into effect. Stoner, contrastingly, served time on probation before misbehaving (the opinion doesn’t say how long; from the briefs and CCAP it appears that it was about 1 year). This contrast does highlight the conundrum acknowledged if not quite resolved by the court: Stoner was punished, in that he did serve time on probation. His punishment is as if it never existed only in an abstract, not a real-world, sense. Granted that the plea bargain was, under controlling caselaw, illegal, does it follow that the passage of time could never confer a reasonable (or legitimate) expectation of finality? What if a probationer had served years, and only transgressed near completion of the term? Had paid restitution, costs, fine? Served jail time as a condition? Performed hundreds of hours of community service? Would those activities be as if they never existed? Questions are easy. And answers? you ask. That is what the “Leave A Comment – Submit” button is for.

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