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Guilty plea — factual basis; value of stolen property; breach of the plea agreement

State v. Lisa A. Brabazon, 2012AP1171-CR, District 4, 3/28/13; court of appeals decision (not recommended for publication); case activity

Guilty plea — factual basis; value of stolen property

The victim’s statements as to the value of the stolen property (which were set forth in the complaint) provided a sufficient factual basis for concluding that the value exceeded the $5,000 threshold for felony theft:

¶19      …. The criminal complaint identifies particular pieces of jewelry and their estimated values, as provided by the victim, alleging that the total loss from thefts of the items was $11,000.  Thus, the complaint explicitly values the stolen items in unambiguous dollar amounts, and attributes the valuations to someone in an apparent position to be aware of accurate values.

¶20      Under Wisconsin law, an owner of property may testify as to the value of his or her property and such testimony may establish a basis for a civil damages verdict, even though the owner’s opinion as to value is not corroborated or based on independent factual data.  Mayberry v. Volkswagen of Am., Inc.2005 WI 13, ¶42, 278 Wis. 2d 39, 692 N.W.2d 226.  This case law supports a conclusion that the victim-owner’s opinion of value here was sufficient to provide a factual basis to show that the value of the jewelry exceeded $5,000.  Brabazon presents no reason to conclude that the victim’s valuations, as set forth in the complaint, are unreliable.

The court rejects Brabazon’s reliance on White v. State,  85 Wis. 2d 485, 271 N.W.2d 97 (1978), which also involved a challenge to the factual basis for the value of a stolen item, because in that case the owner’s valuation referred to an earlier-in-time purchase price, not the value at the later time of the theft:

¶24      Here, in contrast, the complaint contains specific allegations by the victim as to the total value of the stolen jewelry at the time of theft.  According to the complaint, each piece of the stolen jewelry is indicated as “valued” at a certain amount, suggesting a contemporaneous value.  Moreover, Brabazon does not argue that there is any reason, and we see no reason, to infer from the complaint that the victim was offering a value for a time other than the time of the theft.

Breach of the plea agreement

The state did not breach the plea agreement by recommending prison, as opposed to probation, at the sentencing hearing, because the terms of the plea agreement–which were not set out clearly in writing but could be “reconstructed” from the record–allowed the state to recommend prison if Brabazon received a prison sentence in a case from another county in which she was being sentenced after revocation of probation.

The plea questionnaire said the state would recommend probation, but the transcript of the plea hearing reveals that the prosecutor said a probation recommendation would not make “sentence sense” if Brabazon received a prison sentence in her pending sentencing after revocation of probation in a different county. (¶¶31-32). Brabazon and her attorney did not expressly contest this representation. (¶33). By the time of the sentencing hearing Brabazon had been sentenced to prison in the other county, so the prosecutor recommended prison, not probation. (¶¶7, 34).   Brabazon’s attorney “indicated her disagreement” with this recommendation and noted the plea questionnaire and their “discussions” required a probation recommendation; but when asked by the judge if she and her client intended to proceed despite the state’s recommendation, counsel said “yes.” (¶¶35-36). Moreover, at a postconviction hearing counsel testified  she knew before sentencing the state would recommend prison, not probation, and both she and Brabazon testified they knew they had the opportunity to withdraw the plea before sentencing but decided instead to proceed. (¶37). No surprise, then, that:

¶38      Based on this record, the circuit court found that “both sides knew full well that … what happened in Marathon County may change the recommendation of the district attorney” in the instant case.  In other words, the court found that the State and Brabazon had never agreed that the State would unconditionally recommend probation, regardless of what happened in the Marathon County case.  Instead, the agreement was that the State’s recommendation would depend on the outcome in that case.

The circuit court’s findings are not clearly erroneous, so given the conditional nature of the plea agreement, when Brabazon showed up for sentencing with a prison sentence from the other county, the state was free to recommend prison instead of probation, so there was no breach of the plea agreement. (¶39).

This record gave even the court of appeals “pause” as to what the state was supposed to recommend (¶40) and leads to an exhortation for plea agreements to be put in writing (¶42 n.3). Not bad advice, though written agreements can be as unclear and incomplete as oral ones. The real goal is just to be clear, whether orally or in writing.

Though the decision doesn’t mention it, the initial “pause” this record might give is whether there was a plea agreement at all–that is, whether there was a meeting of the minds, evidenced through assent to the agreement’s terms, which is the sine qua non of a plea agreement. State v. Bembenek, 2006 WI App 198, ¶11, 296 Wis.2d 422, 724 N.W.2d 685. But at the same time, a plea agreement can be renegotiated–with the defendant’s consent. State v. Sprang, 2004 WI App 121, ¶28-29, 274 Wis. 2d 784, 683 N.W.2d 522. Given the clear evidence Brabazon decided to proceed despite knowing the change in the prosecutor’s recommendation, it might be best to characterize what happened here as a renegotiation.

A final thought, maybe neither here nor there: Why would probation not make “sentence sense” in this case even if Brabazon got a prison sentence in the other county? The state’s new recommendation was for consecutive prison, but probation can run consecutively to a prison sentence, too. Whether there was any attempt to re-negotiate for consecutive probation doesn’t appear in the opinion. Just something to keep in mind if you ever find yourself needing to renegotiate a plea that called for a probation recommendation….

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