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Plea Agreements – Deferred Entry of Judgment, Contrasted with Deferred Prosecution Agreement (§ 971.39)

State v. Rex E. Wollenberg, 2004 WI App 20, PFR filed 1/8/04
For Wollenberg: Susan E. Alesia, SPD, Madison Appellate

Issue: Whether Wollenberg is entitled to withdraw his plea because the procedure for a deferred prosecution agreement (DPA), § 971.39, wasn’t followed.


¶6. Wollenberg presents no evidence, other than his own arguments, that there was a DPA under Wis. Stat. § 971.39. Rather, the record establishes that he entered a plea agreement with the State that contemplated a deferred entry of judgment on the more serious burglary charges.…

¶9. In short, the court as well as the State always spoke in terms of deferred entry of judgment, not deferred prosecution. At no point did Wollenberg object or claim the agreement was for deferred prosecution. Wollenberg agreed to the order for deferred entry of judgment. Moreover, the court informed Wollenberg that it did not have to accept the deferral but could instead sentence Wollenberg immediately on the burglaries-something not contemplated as part of a DPA. A successful DPA results in dismissal of charges, not sentencing. See Wis. Stat. § 971.39(1)(f).

¶10. While Wollenberg argues that there is no legal difference between a deferred prosecution and a deferred entry of judgment, we disagree. The only statutorily mandated parties to a DPA are the State, the defendant, and the Department of Corrections. See Wis. Stat. § 971.39(1)(a). The department monitors compliance with the DPA, and in this case Wollenberg would be placed on probation for four years for the theft charges. That means, however, that because the entry of judgment on the burglaries would be deferred for six years, Wollenberg would be “on his own” for two years. This lack of supervision is also something not contemplated by the DPA rules.

¶11. Moreover, as the State observes, unlike a plea agreement that requires the court’s acceptance, Wis. Stat. § 971.39 does not require court approval of the DPA. The statute does not require the DPA be filed with the court or placed in the record, and does not even require that the court be notified that there is a DPA. Nothing in this record indicates the existence of any DPA, and Wollenberg’s mere insistence that there was one does not make it true.

¶16. Finally, to the extent Wollenberg claims the court has no authority to defer an entry of judgment of conviction,6 we agree with the trial court’s conclusion. Although there is no specific statutory procedure for deferred entries of judgment, we know of no reason to prohibit a trial court from doing so if, in the appropriate exercise of discretion and upon agreement of the parties, a court determines such a deferral is proper. However, if there was error when the court failed to enter the judgment immediately following Wollenberg’s plea, the defect was remedied when it revoked the deferment and entered the judgment on the burglary charges.

6 Wollenberg claims the trial court lacks the authority to defer judgments of conviction because (1) Wis. Stat. § 972.13(1) states that a “judgment of convictions shall be entered” upon a defendant’s no contest plea; (2) Wis. Stat. § 961.47, the Uniform Controlled Substances Act, authorizes a trial court to defer a judgment and this explicit grant of power is unnecessary if the trial court has inherent authority to defer the entry of judgment; and (3) Wis. Stat. § 973.15(8) only allows the court to stay a sentence in three instances. We disagree for reasons given by the State, but even if the trial court erred, its entry of judgment cured any defect.

For a variation on the theme of deferred action under a plea bargain, see State v. Barney, 213 Wis. 2d 344, 570 N.W.2d 731 (Ct. App. 1997), and State v. Terrill, 2001 WI App 70, 242 Wis. 2d 415, 625 N.W.2d 353, with respect to enforceability and procedural protections attaching to deferring acceptance of the plea itself.

There is a practical reason to prefer the deferred prosecution over deferred judgment procedure — other states may treat a diversion program based on a guilty plea in a foreign state as a “conviction” for strike purposes, notwithstanding the lack of formal judgment of conviction. E.g., People v. Laino, Cal. S. Ct. No. S103324, 4/8/04 (full-faith-and-credit clause doesn’t require that California give full effect to Arizona judgment of dismissal; California instead may treat guilty plea as prior “conviction” for purpose of three strikes law). Compare: U.S. v. Jones, 7th Cir No. 05-4272, 5/23/06 (“whatever the semantics of the terms ‘conviction’ and ‘sentence,’ court-ordered dispositions of supervision are properly counted in the computation of criminal history under” US Sentencing Guidelines); U.S. v. Miller, 6th Cir No. 04-5834, 1/11/06 (though Georgia law provided discharge without adjudication of guilt upon successful completion of first-offender probation, the event would nonetheless be considered as a prior conviction under federal statutes). The deferred prosecution procedure may require written admission of the elements, but it does not appear to be in the nature of a guilty plea, and therefore should not be counted as a strike in a foreign jurisdiction, U.S. v. Jones (“Such diversionary dispositions by a state court are distinguished from deferred prosecutions”).


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