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Plea Agreements — Partial Withdrawal Doesn’t Necessarily Work Repudiation of Entire Bargain

State v. Mark J. Roou, 2007 WI App 193
For Roou: John P. Tedesco, SPD, Madison Appellate

Issue1: Whether the defendant was entitled to plea-withdrawal on both plea-based counts or only the one count as to which the plea was defective (given that the State promised not to re-prosecute the latter count).


¶16 Roou contends that under Wisconsin law the trial court should have permitted him to withdraw from the entire plea agreement.


¶18 The State contends State v. Krawczyk, 2003 WI App 6, 259 Wis. 2d 843, 657 N.W.2d 77, is more apt, and we agree. Krawczyk pled guilty to felony murder, armed robbery and armed burglary, all as party to a crime. All carried repeater enhancements. Id., ¶5. The trial court sentenced Krawczyk to sixty years on the felony murder and forty years on the armed robbery and armed burglary, to run concurrently. Id., ¶6. Krawczyk moved to withdraw his plea as not knowingly, intelligently and voluntarily entered because the trial court misinformed him of the elements of felony murder and failed to tell him he could not be convicted of both felony murder and the lesser-included offense of armed robbery. Id., ¶7. Agreeing that Krawczyk should not have been convicted of both, the trial court vacated the armed robbery conviction and its concurrent sentence, but declined to resentence him on the remaining counts. Id. The State did not object to vacating the charge related to the double jeopardy violation, and agreed to leave intact the total sentence on the remaining charges. Id., ¶¶34-35.

¶21 Roou also says Krawczyk can be distinguished because Krawczyk “ended up with one fewer conviction and a shorter sentence,” while the partial withdrawal in this case leaves his sentence unchanged, and he “may yet face reinstatement of the [vacated] charge, a trial, and a possibly consecutive ten-year prison sentence.” Roou is incorrect. The State opposed Roou’s plea withdrawal motion only as to the armed robbery charge and agreed that, if the trial court granted the motion only as to the reckless endangerment charge, it would accept the conviction and sentence on the armed robbery charge and not reinstate any of the original charges, including the reckless endangerment charge. This is a promise to which the State is clearly bound and which functionally constitutes a dismissal of the charge with prejudice. As for Roou’s sentence, he got precisely what he bargained for on the armed robbery charge and he gives no reason why it should change.


¶24 Roou next contends that vacating only part of the plea agreement is unconstitutional because it forces him into a deal he did not negotiate. Casting his argument in terms of contract law, Roou implies that partially vacating the agreement amounts to a breach of it.

¶26 The ultimate bargain here entailed a plea of no contest to the armed robbery charge. Roou’s twenty-five-year sentence on that charge is unchanged by a partial plea withdrawal. Were the entire agreement jettisoned, all charges could be refiled, exposing Roou to over a century in prison. The trial court’s error of misinforming Roou of the elements of the reckless endangerment charge was not material or substantial as to the armed robbery charge. While a return of the parties to their pre-plea positions might, in the words of Robinson, “ordinarily” be the proper remedy, such is not the mandated remedy as a matter of law when convictions are based on a negotiated plea agreement and an error later surfaces as to one count. If another available remedy better addresses both the circumstances of the case and the interests of the parties, we do not see why pulling one thread must unravel the whole sweater. This determination lies within the trial court’s sound discretion. We see no misuse of discretion.

Where does this leave State v. Jarmal Nelson, 2005 WI App 113? Nelson obtained the right to withdraw two, concurrent-sentence counts without a State promise not to re-prosecute and yet the court of appeals [exercising its own discretion, by the way], refused to declare the entire plea bargain abrogated and left convictions on the remaining three counts intact. Can that result be squared with this one? We’re left with no more than a wink and nod toward boilerplate that partial plea-withdrawal “ordinarily” leads to global plea-withdrawal. Roou, to be sure, stresses that partial withdrawal under the particular facts leaves that defendant no worse off; yet, it is abundantly clear that partial withdrawal did leave Nelson worse off. “Ordinarily,” seemingly, means something less than that. In any event, it now seems fairly obvious that in such situations thought will have to be given to establishing a direct connection between the vacated count(s) and the decision to enter into the entire plea bargain. There’s a separate problem, not raised by this specific case but at least implied by this sort of situation: there may be an argument that relief against one of multiple counts entitles the defendant to resentencing on the unchallenged counts, see generally, State v. William J. Church (II), 2003 WI 74, and discussion here; of course, there may well be attendant risks, see e.g., State v. Victor Naydihor, 2004 WI 43.


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