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Plea Bargains – Breach: By Defendant – Attack on Conviction Contrary to Terms of Agreement – Remedy: Dismissal of Appeal

State v. Lawrencia Ann Bembenek, 2006 WI App 198, PFR filed 10/3/06
For Bembenek: Joseph F. Owens, Mary L. Woehrer

Issue/Holding: Bembenek breached her plea agreement (which contained a no-attack or appeal clause) by filing a motion for DNA testing to establish her innocence; the remedy for this breach is dismissal of her appeal of the denial of the motion:

¶17      By filing motions to reexamine the evidence in 2002, Bembenek breached her plea agreement. “A material and substantial breach of a plea agreement is one that violates the terms of the agreement and defeats a benefit for the non-breaching party.” State v. Deilke, 2004 WI 104, ¶14, 274 Wis. 2d 595, 682 N.W.2d 945 (citations omitted). Collateral attacks on convictions may be substantial and material breaches of a plea agreement.  Id., ¶¶22-24 ….

¶18      In evaluating the appropriate remedy for a material and substantial breach of a plea agreement by a defendant, “[a] court must examine all of the circumstances of a case to determine an appropriate remedy for that case, considering both the defendant’s and State’s interests.” Id., ¶25 (citation omitted). “One remedy is to vacate the negotiated plea agreement and reinstate the original charges against the defendant.” Id. Were we to order that remedy and reinstate the first murder conviction, it might well result in reincarceration of Bembenek to serve the remainder of her life sentence. We decline to impose so harsh a sanction in view of the State’s concession in the plea agreement. Alternatively, if the State were required to re-try Bembenek twenty years after the crime was committed, it would likely be seriously disadvantaged in locating witnesses and producing evidence no longer retained.

¶19      In the ten years following her original first-degree murder conviction, Bembenek filed numerous collateral attacks on her conviction. The State, in an attempt to bring closure for all involved, agreed to enter into this plea agreement with Bembenek. For the State to now be required to continue to litigate with Bembenek, or perhaps to re-try a case more than twenty years after the fact, is exactly the result that the State sought to avoid by its plea agreement. The State is entitled to the benefit of that agreement, just as Bembenek has already enjoyed its benefits. Under the circumstances of this case, in light of the significant passage of time—over twenty years since Bembenek’s original conviction and fourteen years since her plea agreement and no contest plea—we conclude that the most appropriate remedy for Bembenek’s breach is dismissal of this appeal.


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