State v. Donaven C. Sprague, 2022AP876-CR, 5/20/25, District III (not recommended for publication), case activity
In the second defense win this week on appeal from a Barron County conviction (see Wooldridge), the COA vacated Donaven Sprague’s sentence to 10 years of initial confinement for repeated sexual assault of a child because the State breached its plea agreement to recommend no more than 5 years of initial confinement and did not cure the breach. The Court also found that Sprague received ineffective assistance of counsel because trial counsel did not inform him that resentencing before a different judge was a remedy for the State’s breach. The Court remanded the case directing the circuit court to schedule a resentencing for Sprague before a different judge.
Sprague and the State entered a plea agreement; he pled guilty to one count of repeated sexual assault of a child when the victim was between ages 9 and 12, while the State capped its sentencing recommendation to 5 years of initial confinement and 5 years of extended supervision. (¶ 3). The circuit court accepted the plea and ordered a presentence investigation report (PSI), which recommended a sentence of 13 to 16 years of initial confinement and 3 to 4 years of extended supervision. (¶ 4).
At the sentencing hearing, the State argued that the offense was aggravated given Sprague’s position of trust vis-à-vis the victim, his prior conviction for exposing his genitals to a child and a deferred charge for possessing child pornography, and his statements to the PSI writer regarding his sexual addiction. The State cited the PSI writer’s statement that Sprague’s “sexual proclivities don’t have any bounds,” and the prosecutor remarked that the State was surprised that the COMPAS evaluation in the PSR assessed Sprague as a low risk to reoffend. (¶¶ 5-6). Noting the PSI’s recommended sentence, the State argued that Sprague “falls on the upper end of that, of the 16 years confinement with four years extended supervision, and that’s the recommendation that I think is appropriate under the circumstances.” (¶ 6).
Defense counsel then reminded the circuit court that the State agreed to recommend no more than 5 years of initial confinement. The circuit court asked counsel whether the State breached the plea agreement, to which counsel said yes. The State reviewed the record and verified that it agreed to cap its recommendation at 5 years of initial confinement and advised the court that it “would stand with the recommendation of ten years, five years in, five years out . . . My apologies.” (¶ 7). The circuit court allowed defense counsel to confer with Sprague to determine if he wanted to continue with the sentencing hearing, withdraw his plea, or “some other option in between;” and to address whether the State’s comments were “so out of bounds” that he could not receive a fair sentencing. (¶ 8). After a 20-minute recess, Sprague and counsel informed the circuit court that he wanted to proceed with sentencing. The court sentenced Sprague to 10 years of initial confinement and 5 years of extended supervision. (¶ 9).
Sprague filed a postconviction motion asking for resentencing before a different judge; he argued that his counsel at sentencing was ineffective because he did not adequately explain the remedies for the State’s plea breach. The circuit court denied the motion because the State corrected its breach before defense counsel’s sentencing argument and before the court imposed his sentence. (¶ 11).
On appeal, Sprague argued that trial counsel was ineffective because he did not advise Sprague that the State inadequately cured its plea breach and by failing to advise Sprague that he was entitled to resentencing before a different judge. The State conceded it breached the plea agreement, but argued that it cured the breach and therefore the remedy of resentencing before a different judge was unavailable. (¶ 13).
The COA found that the State did not cure its breach of the plea agreement given the significance of the breach and the feebleness of its cure. The Court recognized that a material breach of the plea agreement may be cured it the prosecutor unequivocally retracts the error, see Nietzold, but “’even an oblique variance will entitle the defendant to a remedy if it ‘taints’ the sentencing hearing by implying to the court that the defendant deserves more punishment than was bargained for.’” (¶ 17) (quoting Bowers).
The Court concluded:
The State’s correction of its initial confinement recommendation from 16 years to 5 years and its subsequent apology as to the mistake were insufficient to remedy the “taint” on the sentencing hearing created by the State’s sentencing argument implying that Sprague deserved 16 years of initial confinement rather than 5 years – a raw reduction of 11 years, equating to a near 70 percent reduction. This change was significant, and it required explanation and argument by the State to clarify the basis for the difference between the two recommendations.
(¶ 20).
However, the State did not explain why a 5-year recommendation was “suddenly appropriate given the factors it had outlined in its sentencing argument, especially given that it had tied those factors to a much longer 16-year recommendation.” (¶ 21). The Court found that the State “simply standing by its corrected recommendation and apologizing, without more, could not erase the ‘taint’ on the sentencing hearing created by its breach. The eleven-year gap between the mistaken and corrected recommendations was too large to be cured by the State’s minimal response.” (¶ 27).
Because the State did not cure the breach, Sprague was entitled to plea withdrawal or resentencing before a different judge. Trial counsel, however, did not advise Sprague that resentencing before a different judge was an option. The Court therefore found trial counsel’s performance was deficient. (¶ 36). And because Sprague followed counsel’s advice and proceeded with sentencing on the same day before the same judge, he was prejudiced by counsel’s deficient performance because there is a reasonable probability that, but for counsel’s deficient performance, he would not have continued with the sentencing and chosen resentencing before a different judge. (¶ 38).
Very interesting and informative!