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Plea Bargains — Breach: By Prosecutor — Negative Allocution

State v. Victor Naydihor, 2004 WI 43, affirming 2002 WI App 272, 258 Wis. 2d 746, 654 N.W.2d 479

For Naydihor: Philip J. Brehm

Issue: Whether the State’s allocution amounted to an end-run violation of its obligation to recommend probation at sentencing by stressing Naydihor’s “lengthy history of polysubstance abuse,” his presentation of danger to the community, harm he caused the victim, and the need to send a “message [that] this type of behavior will not be tolerated.”

Holding: Because the State remained free under the plea agreement to argue the length and terms of probation, its comments offered fair support for its request of 10 years’ probation, including a year in the county jail:

¶24 … Hanson stands for the proposition that the State may discuss negative facts about the defendant in order to justify a recommended sentence within the parameters of the plea agreement. Hanson, 232 Wis. 2d 291, ¶¶27-28.

¶25. Likewise, Ferguson permits the State to discuss aggravating sentencing factors and relevant behavioral characteristics of the defendant in order to justify an unusual sentence recommendation within the constraints of the plea agreement. Ferguson, 166 Wis. 2d at 324-25. Ferguson specifically concluded that a prosecutor could discuss “pertinent factors relating to the defendant’s character and behavioral pattern.” Id. at 324. Indeed, the court in Ferguson stated that a prosecutor has the duty to discuss such information in order to justify a harsh and unusual sentence recommendation. Id. at 325. Further, no plea bargain can prevent a prosecutor from bringing to the court’s attention relevant sentencing information. Id. at 234. See also Jorgensen, 137 Wis. 2d 169-70 (accord). Finally, under Williams, the State may “recite the unfavorable facts about the defendant to inform the circuit court fully.” Williams, 249 Wis. 2d 492, ¶50.

¶28. Also, the State here, unlike Williams, did not agree to recommend the minimum sentence; it agreed only to recommend some type of probation and dismiss one of the charges. Further, the negative information about Naydihor that the prosecutor conveyed to the court in no way insinuated that the prosecutor was distancing itself from its recommendation. Quite the contrary, the prosecutor’s comments can be characterized as an enthusiastic argument supporting the “rather unusual” recommended sentence. See Ferguson, 166 Wis. 2d at 325.

¶29. While the prosecutor did direct the court to certain facts contained in the victim impact statement, this is not prohibited under Williams. …

¶30. Thus, while a defendant is entitled to a neutral recitation of the terms of the plea agreement, Poole, 131 Wis. 2d at 364, and the prosecutor may not overtly or covertly convey to the court that a sentence harsher than that recommended is warranted, Hanson, 232 Wis. 2d 291, ¶24, we have found no case that holds that the State is obligated to say something nice or positive about the defendant in order to avoid breaching a plea agreement. Naydihor bargained only for the State to drop one of the counts in the information and to recommend probation. Naydihor did not bargain for the prosecutor to extol his virtues at sentencing.

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