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Guilty Pleas – Plea Bargains – Charge “Dismissed Outright”: Ambiguous as to Whether State Can Argue Facts Underlying Charge

State v. Richard L. Wesley, 2009 WI App 118, PFR filed 8/4/09
For Wesley: Alvin Ugent

Issue/Holding: A plea agreement under which the State dismissed one count “outright” and “(b)oth sides are free to argue” was ambiguous as to whether to State could argue the facts underlying the dismissed charge at sentencing:

¶17      We thus conclude that the plea bargain was ambiguous because the agreement could have meant the State would either (1) dismiss the charges outright, with prejudice, and not refer to the facts underlying the charge in any form at sentencing; or (2) dismiss the charges so that Wesley would not face exposure to a sentence for that charge, but both sides would be free to comment on the underlying facts of the dismissed charge and argue their significance for sentencing purposes. The agreement is just plain silent about what the term was to mean. It could have reasonably meant either of the above.

What, then, is the implication? What precise relief is available against an ambiguous provision? Can Wesley obtain specific performance of an ambiguous provision? The court doesn’t explicitly answer the question, leaving the outcome a bit, well, ambiguous itself.

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