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Plea Bargains – Breach: By Prosecutor — Less Than Neutral Recitation of Recommendation

State v. Robert D. Hanson, 2000 WI App 10, 232 Wis.2d 291, 606 N.W.2d 278
For Hanson: Suzanne L. Hagopian, SPD, Madison Appellate.

Issue: Whether the prosecutor undermined a 10-year sentencing cap by emphasizing that “this is an extremely violent case,” along with other aggravating factors.

Holding: By stressing to the trial court that she was standing by the plea agreement, “the prosecutor strongly affirmed the plea agreement and did not make any statements that expressly, covertly or otherwise suggested that the State no longer adhered to the agreement.” ¶¶28-30.

But see, e.g., U.S. v. Gonczy, 1st Cir. No. 02-2399, 2/2/04 (government’s “initial recommendation,” which was as nominally required by the agreement, nonetheless “was undercut, if not eviscerated, by the AUSA’s substantive argument to the district court”); and U.S. v. Rivera, 3rd Cir. No. 02-3067, 2/9/04 (government breached agreement to recommend offense level of 35 when it stated, “we stand by the probation officer’s conclusion,” which included recommendation of level 39 — government thereby “in effect” endorsed level 39), rehearing denied, 4/15/04.


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