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

State v. Jarmal Nelson, 2005 WI App 113
For Nelson: Wm. J. Tyroler, SPD, Milwaukee Appellate

Issue: Whether Nelson’s successful attempt to withdraw three of five bargain-based guilty pleas had the effect of abrogating the entire agreement so as to require withdrawal of the other two pleas.


¶23      Finally, Nelson asserts that if he is successful in withdrawing some of his pleas, he is entitled to withdraw all of his guilty pleas, relying on Robinson, 249 Wis. 2d 553, ¶47.

¶25      We conclude that this case more closely resembles the situation found in State v. Krawczyk, 2003 WI App 6, 259 Wis. 2d 843, 657 N.W.2d 77 …

Just as a defendant should not be vindictively penalized for successfully challenging one of several convictions on appeal, neither should a defendant obtain a windfall from what is, in essence, a breach of his plea agreement with the State. That is, Krawczyk is entitled to be relieved of the consequences flowing from the wrongful conviction, but nothing more.

Id.,¶37 (citation omitted). Here, Nelson has not explained why the proper remedy is a reversal of all the charges, or how his legitimate interests are harmed. He bargained for a reduction of charges from seven to five. He currently remains convicted of two. The State never agreed to recommend a specific prison term, only to ask the trial court at sentencing for “substantial prison.” Nelson got the benefit of his bargain.

There is certainly room for disagreement as to the result. State v. Robinson, 2002 WI 9, ¶ 47, held that a defendant’s partial attack on a plea bargain “constitutes a repudiation of the plea agreement,” such “that the appropriate remedy in such circumstances ordinarily is to reverse the conviction, vacate the negotiated plea agreement upon which the conviction was based, set aside the amended information, and reinstate the original charges against the accused.” Abrogation of the entire agreement is thus ordinarily the remedy. The reason’s not hard to see (indeed, as the court of appeals has itself expressed): any significant change in the agreement requires the defendant’s personal assent, because by changing the result you’ve “morphed” the agreement; that is, imposed on the defendant an entirely different “agreement.” Nelson most decidedly did not get the benefit of the bargain he negotiated. Rather, the court essentially forced upon him an “agreement” whose terms it unilaterally derived. So, to recap, here are the operative principles: the decision to plead guilty is the defendant’s personal right, Boykin v. Alabama, 395 U.S. 238 (1969); thus, once struck so that it is enforceable, a plea bargain cannot be renegotiated without the defendant’s knowledge and consent, else the guilty plea is “neither knowing nor voluntary.” State v. Woods, 173 Wis. 2d 129, 141, 496 N.W.2d 144 (Ct. App. 1992). And what about Krawczyk? Well, it’s critically distinguishable, because it dismissed a count, as multiplicitous; therefore, Krawczyk ended up with one fewer conviction and sentence, a beneficial result that could not conceivably have impacted his plea bargain. Nelson’s partial withdrawal of pleas, on the other hand, left the corresponding charges intact. He stands for trial on some counts and stands convicted of the remaining counts. Whatever else might be said, it’s not an indisputably beneficial result, it’s instead an entirely new plea “agreement,” one he did not in fact agree to.

See also State v. Bisson, 130 P. 3d 820 (Wn. 2006) (where agreement is “package deal,” there is “bright-line rule” that partial rescission impermissible; “the remedy is restricted to the withdrawal of his plea in its entirety”).

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