State v. Richard L. Wesley, 2009 WI App 118, PFR filed 8/4/09
For Wesley: Alvin Ugent
¶12 The interpretation of plea agreements is rooted in contract law. See State v. Deilke, 2004 WI 104, ¶12, 274 Wis. 2d 595, 682 N.W.2d 945. Contractual language is ambiguous only when it is “reasonably or fairly susceptible of more than one construction.” State v. Windom, 169 Wis. 2d 341, 348-49, 485 N.W.2d 832 (Ct. App. 1992) (citation omitted). Whether an ambiguity exists in a plea agreement is a question of law we decide de novo. See id. at 349.
Wesley, as the party seeking to show a breach of the agreement, “bears the burden of convincing us the agreement is not ambiguous and his interpretation is correct,” ¶16.
Separate but related: What do you do with ambiguous terms? Every federal circuit court as well as a substantial number of state courts hold “ that ambiguities in plea agreements must be construed against the government and in accordance with the defendant’s reasonable understanding of the agreement,” ¶18 n. 5. But the court is bound by its prior holding, State v. Jorgensen, 137 Wis. 2d 163, 169-70, 404 N.W.2d 66 (Ct. App. 1987), “that construction which would safeguard the public interests, substantially, must be given preference,” ¶18. The court adds: “Were we writing on a clean slate, and were the issue properly before us, we would join the unanimous agreement of the federal circuits. But … Jorgensen … is the law in this state unless or until our supreme court determines otherwise,” ¶18 n.5.