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Guilty Pleas – Plea Bargains – Breach: By Prosecutor: Immediate Correction of Breach

State v. Richard L. Bowers, 2005 WI App 72
For Bowers: George Tauscheck

Issue/Holding: The State’s immediate correction of recommended disposition in excess of the plea bargain’s limit rendered the breach insubstantial and therefore not actionable; State v. Knox, 213 Wis. 2d 318, 321, 570 N.W.2d 599 (Ct. App. 1997), followed:

¶12. We reach the same conclusion here. While the State did not correct itself with tremendous enthusiasm and zeal and while the trial court did not reflect upon the State’s “earnest” advocacy of the proper sentence, such is not required for us to find a perceived breach immaterial and insubstantial. There is no requirement that the state correct a misstated sentence recommendation forcefully or enthusiastically. Knox teaches us that it is sufficient for the State to promptly acknowledge the mistake of fact and to rectify the error without impairing the integrity of the sentencing process. See id.; see also State v. Williams, 2002 WI 1, ¶51 n.47, 249 Wis. 2d 492, 637 N.W.2d 733 (“In Knox, the breach was not actionable because the prosecutor misstated a term of the plea agreement but promptly acknowledged the mistake of fact and rectified the error without impairing the integrity of the sentencing process.”).

¶13. In the present case, when the mistake was brought to its attention, the State promptly and matter-of-factly corrected its recommendation to the agreed upon bifurcated sentence and in its sentencing remarks, the trial court recognized that the State was recommending “two years” of initial incarceration as part of the plea agreement. The perceived breach was not an attempt to qualify or undercut the substance of the plea agreement; rather, it was simply an inadvertent misstatement that was acknowledged and rectified shortly thereafter. We therefore hold that the State did not materially and substantially breach the plea agreement when it misspoke as to the length of initial incarceration. There being no material and substantial breach of the agreement, counsel could not be said to have performed deficiently.

In this instance, the defense didn’t object to the potential breach, and the issue is therefore raised in the context of ineffective assistance of counsel. That procedural background shouldn’t matter: the court plainly goes to the merits of the issue and finds no substantial and material breach. Whether this sort of indulgent treatment of what was, after all a clear breach, will encourage fast-and-loose play remains to be seen.

Keep in mind, too, that objection may result in the error being “cured,” State v. Michael A. Grindemann, 2002 WI App 106, surely a legal fiction if there ever was one. Indeed, in the present case there was for all practical purposes an objection, except that it was, interestingly, made by the defendant himself – to his attorney, with the prosecutor happening to overhear and then make his mid-course correction, ¶3. Terrible to say, but from the defendant’s point of view it may be better that counsel not object to a plea bargain breach.

Counsel, of course, has a divergent point of view, namely the requirement of zealous advocacy not to say avoiding a Machner hearing. But the real problem is that the court appears more inclined to encourage rather than deter sloppy and even malicious advocacy. Hard to imagine a better way to induce transparent communication of the prosecutor’s real allocution than this.

Compare, State v. Bearse, Iowa SCt No. 116/06-9016, 4/18/08 (prosecutor sought to remedy breach by informing court state would “abide by the agreement”: inadequate, where plea bargain required prosecutor to “recommend” disposition, meaning a degree of advocacy).


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