Issues (composed by On Point from the PFR)
Where the State agreed to cap its sentence recommendation on four cases at the “high end” of the recommendation of the presentence investigation (PSI) and the PSI did not recommend whether the sentences in the cases should be served concurrently or consecutively, did the State breach the plea agreement by recommending consecutive sentences?
Was there a sufficient factual basis for a plea to party to the crime of felony theft for “taking and carrying away” property when the defendant had no knowledge of the theft, but only received the stolen property and then moved it to a different location?
On the first issue: Since Tourville’s plea agreement didn’t explicitly address whether the state could recommend consecutive sentences, the court of appeals held the plea agreement in this case was governed by State v. Bowers, 2005 WI App 72, 280 Wis. 2d 534, 696 N.W.2d 255, which held that where the plea agreement is silent on the consecutive/concurrent question, the courts should not engraft onto the plea agreement a condition not explicitly negotiated by the parties. There are factual differences that suggest Bowers shouldn’t govern here. In particular, Bowers involved a plea to a single charge and a deal for a very specific recommendation—two years in, three years out. By contrast, Tourville was negotiating a deal for multiple charges—where it would be expected the state would negotiate the right to recommend consecutive sentences, and thus the absence of an agreement allowing a consecutive sentence recommendation should be interpreted as a bar to such a request—with a cap at the high end the PSI range—which should mean the PSI’s recommendation sets the cap, and the PSI’s failure to ask for consecutive time should bind the state. Apart from the factual differences, Tourville’s basic claim is that a plea agreement that’s ambiguous on such an important matter as consecutive versus concurrent sentences should be construed strictly in favor of the defendant. We’ll soon know whether the supreme court agrees, or whether it will instead endorse Bowers‘s caveat emptor approach.
On the second issue: The court of appeals found that Tourville’s aiding the thieves in taking and carrying away the property after the fact was enough to support a factual basis for asportation under State v. Marshall, 92 Wis. 2d 101, 284 N.W.2d 592 (1979), State v. Grady, 93 Wis. 2d 1, 286 N.W.2d 607 (Ct. App. 1979), and Hawpetoss v. State, 52 Wis. 2d 71, 187 N.W.2d 823 (1971). But unlike the defendants in those cases, Tourville was apparently not present at, and did not know about or aid in, the initial asportation, at which time the offense was complete. Whether this argument moves the supreme court remains to be seen.