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Sentencing Discretion – Reliance on Dismissed Charge; Read-In Procedure: Dismissed Charges, Distinguished

State v. Michael L. Frey, 2012 WI 99, affirming unpublished decisioncase activity

Sentencing Discretion – Reliance on Dismissed Charge 

The sentencing court may consider charges “dismissed” or “dismissed outright” (as opposed to read-ins)

¶47  To discharge its obligation to discern a defendant’s character, “[a] sentencing court may consider uncharged and unproven offenses,” State v. Leitner, 2002 WI 77, ¶45, 253 Wis. 2d 449, 646 N.W.2d 341, whether or not the defendant consents to having the charge read in.  Indeed, the court may consider not only “uncharged and unproven offenses” but also “facts related to offenses for which the defendant has been acquitted.”  Id.; see also State v. McQuay, 154 Wis. 2d 116, 126, 452 N.W.2d 377 (1990); Elias, 93 Wis. 2d at 284; Bobbitt, 178 Wis. 2d at 16-17.

¶48  Against this background, it is hard to imagine directing a court not to consider dismissed charges unless those charges are groundless or unreliable.  Agreements not to reveal “relevant and pertinent” information to a sentencing court are contrary to public policy.  Grant v. State, 73 Wis. 2d 441, 448, 243 N.W.2d 186 (1976); see also McQuay, 154 Wis. 2d at 124-26.  In short, the defendant’s suggestion conflicts with longstanding public policy.

¶54  Consequently, we think it is better practice for the court to acknowledge and discuss dismissed charges, if they are considered by the court, giving them appropriate weight and describing their relationship to a defendant’s character and behavioral pattern, or to the incident that serves as the basis for a plea.[8]  The defendant should be given an opportunity to explain or dispute these charges.  Open discussion of the charges is consistent with the court’s sentencing methodology set out in State v. Gallion, 270 Wis. 2d 535.  It creates a record for review.

¶55  In sum, we reject the defendant’s suggestion that the circuit court not be permitted to consider charges that are dismissed as the result of a plea bargain.

Read-In Procedure: Dismissed Charges, Distinguished 

¶61  This case gives us the opportunity to clarify how the read-in procedure and dismissed charges fit into the plea bargaining process.[9]  In light of our discussion about sentencing above, we must decide “what does ‘dismissed outright’ mean anyway?” and whether it is a proper procedure for prosecutors and defendants to utilize.  State v. Wesley, 2009 WI App 118, ¶1, 321 Wis. 2d 151, 772 N.W.2d 232.[10]

¶62  Dismissed charges are different from charges that are read in, as explained in paragraph 43, supra.  Charges that are “dismissed outright” appear to some to have special significance. Wesley, 321 Wis. 2d 151, ¶¶15-16 (citing In re Disciplinary Proceedings Against Chvala, 2007 WI 47, 300 Wis. 2d 206, 730 N.W.2d 648).  We disagree.

¶77  In the context of interpreting plea bargains under contract law, dismissed charges do not have a static meaning.  They are a product of the parties’ negotiations and they mean what the parties intend them to mean.

¶78  The one obvious and immutable exception to this principle is that a plea agreement involving one or more dismissed charges cannot limit what the judge may consider at sentencing. McQuay, 154 Wis. 2d 116; Grant, 73 Wis. 2d at 448.  Such agreements are contrary to public policy. Elias, 93 Wis. 2d at 285 (“At the sentencing stage of a criminal proceeding there is no way that pertinent factors relating to the defendant’s character and behavioral pattern can be immunized by a plea agreement between the defendant and the state.”).

¶79  A plea agreement might require the district attorney to recommend that the circuit court not consider the dismissed charge to be an aggravating factor. …

¶80  These agreements do not limit the circuit court’s ability to consider dismissed charges. …

¶88  The term “dismissed outright” should be discontinued.  It leads to misunderstanding. Instead, plea bargains should pin down whether a district attorney is agreeing not to prosecute a dismissed charge.

¶102 To sum up, we determine that a sentencing court may consider dismissed charges when it imposes a sentence.  As a general rule, parties may not immunize certain offenses from consideration by the court.  Rather, the court is expected to utilize the fullest amount of relevant information concerning a defendant’s life and character in fashioning a sentence.  It is the responsibility of defense counsel to assure that the defendant understands and consents to the terms of any plea bargain and appreciates the authority and independence of the sentencing court. The circuit court must confirm the defendant’s understanding.  The State and defense counsel would be well advised to make sure they agree on the terms of any plea bargain by putting the agreement in writing and documenting efforts to keep the defendant informed of all important developments.

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