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

State v. Rodney K. Stenseth, 2003 WI App 198, PFR filed 9/2/03
For Stenseth: Robert A. Ferg

Issue/Holding: The state did not violate the plea bargain, which limited its recommended disposition to two years’ confinement plus extended supervision, by expressing agreement with some portions of the PSI (which recommended 8 years’ confinement plus supervision):

¶12. Here, the State’s reference to the plea agreement was not less than neutral. It simply agreed with the report that Stenseth needed to be incarcerated, without commenting on the sentence recommendation in the report. Testimony given by Stenseth’s witnesses could have supported a request for probation only. The State referred to information in the presentence investigation report only to support the recommendation that Stenseth be sentenced to prison rather than straight probation. In fact, when Stenseth objected to the State’s use of the presentence report in its argument, the court noted:

[T]he District attorney could well have inferred from the tenor and tone of your [Stenseth’s attorney’s] presentation of the witnesses that you were going to recommend a straight probationary term. And it is consistent with her plea agreement and with her commitment to you and to the defendant to say that’s not a good idea, Judge.There really has to be, in the state’s view, actual confinement. There actually has to be a sentence. There actually has to be extended supervision. Straight probation should not be the order of the Court. And that interpretation of counsel’s remarks is consistent with her plea agreement to you.

Although Stenseth’s attorney stated he was not going to argue for probation, the court was free to impose any sentence it thought appropriate, including probation. There was nothing improper in the State arguing facts in opposition to probation.

¶13. At no time did the State argue for anything other than the agreed-upon sentence. Nor did it mention that the presentence report recommended a longer sentence. The State properly used the presentence report in support of the plea agreement’s sentence recommendation. Consequently, the State did not violate the terms of the plea agreement, and thus there was no breach.

The court’s analysis is skimpy. Then again, so is the recitation of facts. If all the prosecutor did was argue against probation then this is a limited holding, given that the prosecutor was entitled to ask for a prison term. Nothing in the opinion says otherwise.

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