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Plea Bargain Breach: Prosecutorial Failure to Make Agreed IC-Recommendation not Material Breach

State v. Mark Allan Campbell, 2011 WI App 18; for Campbell: Steven D. Phillips, SPD, Madison Appellate; Campbell BiC; State Resp.; Reply

(Sentencing issue in the case discussed separately, here.)

Plea Bargain – Breach

The plea agreement required the prosecutor to recommend a 20-year sentence, comprised of 5-7 years’ confinement and the balance on extended supervision, out of a potential maximum of 60 years (40 confinement, 20 supervision). In the event, the prosecutor recommended a 20-year sentence, but failed to make the 5-7 years’ initial-confinement recommendation. This failure to discharge the bargained-for prosecutorial allocution didn’t work a substantial and material breach of the agreement, given the combined effect of several factors, ¶¶9-13:

  • “First, the prosecutor’s recitation of the plea agreement at resentencing involved a mere omission of one of the agreement’s terms.”
  • “Second, Campbell’s counsel clarified the prosecutor’s omission.”
  • “Third, the prosecutor did not dispute Campbell’s counsel’s clarification of the plea agreement.”
  • “Fourth, the court was fully aware of the plea agreement’s terms before it resentenced Campbell.”

The court’s analysis ignores fundamental principles, starting with the idea that a plea bargain is a “constitutional contract,” which is to say, an agreement enforceable as a matter of due process. As many times as courts have over the years recited the strictures on deviating from plea bargain terms, they might as well have been written on the wind. Here’s an efficient summary, United States v. Fields, 766 F. 2d 1161, 1167-68 (7th Cir. 1985):

… While noting the Supreme Court’s statements concerning the desirability of plea bargaining in Santobello 404 U.S. at 261, 92 S.Ct. at 498, the court in Bowler added: “However, both to protect the plea bargaining defendant from overreaching by the prosecutor and to insure the integrity of the plea bargaining process, the ‘most meticulous standards of both promise and performance must be met by prosecutors engaging in plea bargaining.'” Bowler 585 F.2d at 854 (quoting Correale v. United States 479 F.2d 944, 947 (1st Cir.1973)). …

… In sum, we have consistently adhered to the view expressed by the Third Circuit in United States v. Crusco, 536 F.2d 21, 26 (3d Cir.1976):

The Government … must also clearly understand the scope and depth of its commitment and the need for precision in plea bargaining. It may reach port in the plea bargaining process but founder there because of careless or loose language in its commitment. Once it makes a promise, Santobello requires strict adherence.

Meticulous performance; strict adherence: so yesterday. Campbell negotiated a specific term – prosecutorial allocution for an express recommendation of 5-7 years’ confinement – and the court’s compilation of “factors” cannot obscure the plain fact that the prosecutor did not perform his end of that particular obligation at all, forget about meticulously. Indeed, the court doesn’t find prosecutorial performance so much as it effectively rewrites the terms of the agreement to eliminate the very need for performance, ¶11: “There is no requirement that a plea agreement be presented to the court in any particular way.  It may be presented by the prosecutor, by the defense, or by both.  Here, the parties, in combination, accurately informed the court of the plea agreement’s terms.” Stated as a matter of high principle, as the court blithely does, this is fairly startling. No given defendant will care if the prosecutor declines to make the recommendation and lets defense counsel do the heavy lifting alone? What is the prosecutor’s obvious indifference to a relatively lenient disposition likely to communicate to the sentencing judge about the prosecutor’s true feelings? That said, the result here might be discounted as highly fact-specific, not least in that the appeal follows resentencing (occasioned by a guideline violation): the resentencing judge had read the original sentencing transcript; the judge therefore well knew the terms of the plea bargain; more: the prosecutor had (from all appearances) satisfied his obligations at the original sentencing. The court of appeals mentions this background as one of the 4 factors, ¶13, and perhaps it is first among equals. (“The court was clearly aware of the plea agreement’s terms, rendering any breach by the State merely technical, not material and substantial.” Id.) Not entirely convincing as an analytical matter, but at least the facts are unusual, and might limit the holding’s impact. Might, that is, if that were the end of it …

Plea Bargain – Breach – Half-Hearted Compliance

A prosecutor may not undermine his plea-bargained allocution with a half-hearted recommendation that effectively undermines its obligation. The court, purporting to apply this overarching principle, discerns no violation, ¶¶17-18, citing cases such as State v. Poole, 131 Wis. 2d 359, 364, 394 N.W.2d 909 (Ct. App. 1986). The prosecutor may have lost his tongue when it came time to request 5-7 years’ confinement, but he was hardly at a loss for words. No, he managed to find his voice when it came to describing the “horrific” nature of the offense; Campbell’s “devious” nature; and the public’s “very high” need for protection from Campbell, including more particularly and not least, the victim’s need “to be protected from him for as long as can be humanly possible,” ¶16. Campbell faced 40 years’ confinement. The prosecutor’s allocution, as just described, didn’t undermine the (omitted) prosecutorial obligation to recommend 5-7 years, ¶¶18-19.

So in the final analysis, the prosecutor can ignore his obligation to recommend relatively lenient disposition (which is the only fair characterization to be made of 5-7 out of 40), bash the defendant to his heart’s content, and all but implore the court to give the maximum (what else is to be divined from “as long as humanly possible”?). If this decision holds up, then the practitioner will have to be very cautious about entering into plea agreements. Perhaps, in a case such as this, a statement at the plea proceeding about the significance to the plea-decision of the contemplated recommendation would save the day. Yes, it’s more than passing odd, that you have to express what is perfectly obvious, that you really and truly need to have the prosecutor expressly and unequivocally ask for 5-7 years. And who knows whether that would be enough to compel enforcement of something that ought to be self-evident anyway. Don’t forget, too, that a judge may (stress, “may”) inform the defense he intends to exceed the plea-bargained recommendation, and give the defendant the option of withdrawing the plea, State v. Miguel E. Marinez, Jr., 2008 WI App 105. If judges aren’t going to require strict adherence to prosecutorial obligations, perhaps in enough instances they will restore balance by exercising Marinez-type authority.

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