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Defendant not entitled to plea deal where plea not yet accepted

State v. Derek Asunto, 2015AP50, 8/8/17, District 2 (recommended for publication); case activity (including briefs)

Derek Asunto and the state agreed to resolve several charges by dismissing some and having him plead to others. At the hearing where the deal was announced to the court, he entered a plea to one criminal count. The parties and court agreed the other counts would be held open until the sentencing hearing, but that at that hearing, Asunto would plead to an OWI-4th and the rest would be dismissed.

At that later hearing, the state announced it had discovered another prior, which would make the current OWI Asunto’s fifth. The state later moved to amend the count to an OWI-5th, which Asunto opposed, arguing the court had already accepted the parties’ plea agreement by which OWI-4th was to be the resolution. After further filings and hearings, the circuit court determined that the state’s amendment would be allowed, and also permitted Asunto to withdraw the plea he had already entered. Asunto sought and received an interlocutory appeal, maintaining he was entitled to the plea deal the parties had described at the original hearing.

The court of appeals disagrees. In so doing it distinguishes State v. Chamblis, 2015 WI 53, ¶26, 362 Wis. 2d 370, 864 N.W.2d 806. In that case, the defendant entered a plea to OWI-6th after a successful collateral attack on some priors. The state appealed the exclusion of the priors, and the court of appeals reversed, holding them countable. The court of appeals concluded the proper remedy was to send the case back for sentencing as an OWI-7th. The supreme court reversed this remedy, holding, sensibly, that it would violate Chamblis’s due process rights to sentence him for a seventh when he pled to a sixth. It went on to hold that it would be fundamentally unfair to force Chamblis to withdraw his plea, and thus simply upheld his conviction for OWI-6th.

In the court of appeals’ view, what distinguishes Chamblis is that Chamblis actually pled to the lesser offense–the court conducted the colloquy and accepted the plea–whereas these things did not happen here (though there is certainly no indication that was not the court’s plan for the subsequent hearing). Without the court’s formal acceptance, there was no binding agreement to enforce against the state:

The fact that the State and Asunto verbally agreed to the terms of a plea agreement is not sufficient to create a binding agreement. The court must accept the terms and do so in a manner prescribed by statute and case law. We conclude, as did the circuit court, that the agreement here involved a total package of reciprocal obligations. The circuit court recognized that it would be fundamentally unfair to Asunto to leave standing the guilty pleas to criminal damage to property and misdemeanor bail jumping and the admission for failing to submit to intoxication testing, while also allowing the State to increase the potential punishment with a charge of OWI 5th. The agreement could not become enforceable unless and until the circuit court accepted that total package. When the plea hearing was adjourned without beginning, much less completing, the plea colloquy as to all pleas that were part of the agreement, the court could not accept the total agreement. Accordingly, there was no agreement to enforce. We affirm circuit court.


The eagle-eyed will note that this crucial paragraph is uncluttered by citation to any authority. It could have cited Mabry v. Johnson, 467 U.S. 504, 507-08 (1984), for this: “[a] plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest.” Mabry, though, is not exactly on point, as it was a habeas case concerning a prisoner’s argument that the plea he made after the prosecutor withdrew a prior offer should be vacated.

Moreover, the court of appeals’ focus on the trial court’s role is arguably misplaced. It is true the circuit court was not obligated to go along with the plea bargain. State v. Lloyd, 104 Wis. 2d 49, 54, 310 N.W.2d 617 (Ct. App. 1981). But what about the state? After all, what happened here is that the state went back on its deal when it realized it could obtain a more serious conviction than the one it had bargained for. Isn’t there an argument that, once the parties had reached a deal (and once Asunto had begun to perform, by entering one of the agreed-on pleas), the state was bound to hold up its end, rather than repudiating its agreement (though the court, again, could decline to accept the plea)?

There are some foreign cases supporting this proposition. See Kisamore v. State, 409 A.2d 719 (Md. 1980); United States v. Mozer, 828 F. Supp. 208, 209 (S.D.N.Y. 1993). Perhaps they will provide fodder for a petition for review in this case (or an argument in a future case that this one was wrongly decided).

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