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Guilty Pleas – Plea Bargains – Breach: By Prosecutor: State’s Allocutionary Presentation of Victim and Others

State v. Steven A. Harvey, 2006 WI App 26
For Harvey: Christopher William Rose

Issue/Holding: Plea bargain, which permitted State to comment on facts but not to make specific sentencing recommendation was not violated by State’s presentation of victim and others who themselves asked for maximum penalty:

¶40      We first disagree that the State breached the plea agreement by going beyond factual argument with its comments about evidence it would have introduced had there been a trial. Harvey’s sole defense was that the sex was consensual. The State simply brought to the trial court’s attention evidence that would refute that claim. …

¶41      We also disagree with Harvey that Skinner’s role at the sentencing was as a “state’s witness” and that her statement amounted to an “end-run” or in any way rose to the level of a material and substantial breach of the plea agreement. … The State underscored that it in no way was encouraging Skinner, or others, to make any sort of penalty recommendation. In our view, both the trial court and the State demonstrated an exemplary effort to honor the plea agreement.

¶42      We reject Harvey’s argument on another basis as well. As the trial court aptly noted, Harvey’s objections to statements by the victim’s witnesses in essence asked the trial court to silence the victim and/or her family. The victim and her family members merely were afforded the same opportunity to speak as was offered, and accepted, by Harvey’s family. Moreover, a victim of a crime has an absolute right to make a statement at sentencing, and it is within the trial court’s discretion to “allow any other person to make or submit a statement” as long as the statement is relevant to the sentence. Wis. Stat. § 972.14(3)(a). Similarly, the “Basic bill of rights for victims and witnesses” statute guarantees a victim the right “[t]o provide statements concerning sentencing” and the right “[t]o have the court provided with information pertaining to the economic, physical and psychological effect of the crime upon the victim and have the information considered by the court.” Wis. Stat. § 950.04(1v)(m) and (pm). Finally, we observe that Wis. Stat. § 950.11 provides for a forfeiture penalty against a public official who intentionally fails to provide a right specified under § 950.04(1v).

¶43      Skinner’s statement offered the very kind of sentencing information contemplated by Wis. Stat. § 950.04(1v)(m) and (pm). [9] Skinner related that her sister had to move from a house she loved because of the memories associated with the assault and that her sister now is fearful, sometimes telephoning Skinner because she “thinks she hears things, and she’s afraid that someone is in her apartment.” Skinner stated that because the actions of Harvey, their stepbrother, “really had serious repercussions on the family as a whole,” such that “my sister and I have basically lost our family,” she was asking the court to consider giving the maximum penalty. Courts are encouraged to consider the rights and interests of the public when imposing sentence. State v. Johnson, 158 Wis.  2d 458, 465, 463 N.W.2d 352 (Ct. App. 1990).

There’s been surprisingly little litigation on victim’s allocution. Note the court’s observation that “a victim of a crime has an absolute right to make a statement at sentencing.” If you want to see just how “absolute” that right can be construed, take a look at Kenna v. U.S. District Court (II), 9th Cir. No. 05-73467, 1/20/06 (under the very similar Crime Victims’ Rights Act, 18 U.S.C. § 3771: defendant’s sentence vacated and resentencing ordered to allow victim right to allocution, even though he had had that opportunity at an earlier sentencing of the codefendant); subsequent history, Kenna II, No. 06-73352, 7/5/06 (crime victim not entitled to general right of disclosure of entire PSR, but court seems to say that “specific portions” are subject to disclosure). As the court suggests, such statements must be relevant to sentence (§ 972.14(3)(a)), but given how broad the concept of sentencing relevance, that limitation is cold comfort at best. Victims’ right to allocution does, though, strengthen the argument that the defendant’s right to allocution is constitutional and not merely statutory, State v. Thomas A. Greve, 2004 WI 69, ¶43 (Crooks, J., conc.). And, of course, the exercise of this right heightens the defendant’s right to be sentenced only on accurate information, e.g., State v. Yolanda M. Spears, 227 Wis.2d 495, 596 N.W.2d 375 (1999).


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