State v. Scott G. Zuniga, 2002 WI App 233, PFR filed 9/13/02
For Zuniga: Chad G. Kerkman
Issue/Holding: Because the defendant was warned by the judge at a bond-release hearing that if he engaged in misconduct the state would seek a longer sentence, “the parties effectively modified the plea agreement by making the State’s obligation conditional upon Zuniga’s good behavior while in the community. In proceeding under these circumstances, Zuniga ‘opted to take his chances under the terms of the modified plea agreement.'” ¶15.
¶17. In sum, we reject the State’s argument that because Zuniga engaged in misconduct between entry of the plea and sentencing, the State was excused as a matter of law from fulfilling its promises under the agreement. Instead, we determine that under the particular facts of this case the plea agreement was amended by the parties during the bond hearing. The circumstances surrounding this amendment of the plea agreement violate no standards of fairness or decency nor any factors bearing upon due process. See Paske, 121 Wis. 2d at 475. Zuniga was fully cognizant of the risks inherent in his request for release and the terms under which his request was granted. Zuniga’s participation in the amended plea agreement was freely and voluntarily made and was not the product of any violation of due process, and while the sentence meted out by the trial court did not comport with the terms of the original plea agreement, it fully comported with the agreement as amended.
The facts simply don’t seem to support the court’s characterization. At the release hearing the judge (not the prosecutor) suggested that the state might “change their minds by screwing up while you’re out on bond.” ¶4. Is this really clear enough to support a change in a “constitutional contract”? For starters, what is meant by “screwing up”? And just what were the new terms supposed to be? Why, for that matter, wasn’t the defendant entitled to withdraw his plea if the court found a breach? Too many questions, not enough answers.