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Plea Bargains – Breach: By Prosecutor – Pressuring PSI Agent to Change Favorable Recommendation Where State Had Agreed to Make No Recommendation

State v. Joshua L. Howland, 2003 WI App 104
For Howland: Paul G. LaZotte, SPD, Madison Appellate


¶37. We conclude that the district attorney’s contacts with the Department of Probation and Parole, complaining about the PSI author’s sentence recommendation, when the plea agreement required the State to make no sentence recommendation, resulted in a material and substantial breach of the plea agreement. Consequently, we reverse the order denying Howland’s postconviction motion and we remand the cause to the circuit court for resentencing.

¶38. We further conclude that because of the nature of the past proceedings, Howland’s resentencing would be best conducted by a new circuit court judge. Furthermore, to avoid any further taint in this case, we also conclude that a new presentence investigation should be conducted and a new report completed by a department from another county.

The court stresses that the agreement was for no recommendation, but does that make a difference? Maybe not: the majority equally stresses the ex parte nature of the prosecutor’s contacts with the Department, which impaired the PSI’s neutrality. ¶¶32-38. The propriety of these contacts had nothing to do with the plea bargain, but related to a separate value. This is indeed the point of the concurrence: the prosecutor wasn’t barred from seeking “to protest” the way the PSI was prepared, but chose an improper avenue, namely, “the ex parte communications ruined the independent nature of this PSI.” ¶43. Hard to see why this logic would not extend to all PSI’s, regardless of the precise plea bargain terms or even the existence of a plea bargain. And, what about sauce for the goose, sauce for the gander? If prosecutorial ex parte contact is improper, so is ex parte defense contact:

¶33. The preparer of the PSI is to be a neutral and independent participant in this sentencing process. State v. McQuay, 154 Wis. 2d 116, 131, 452 N.W.2d 377 (1990).  Presentence reports are designed to gather information concerning a defendant’s personality, social circumstances and general pattern of behavior so the judge can make an informed sentencing decision. Knapp, 111 Wis. 2d at 386. In Wisconsin, the entire sentencing process is to be a search for truth and an evaluation of alternatives and any advance understanding between the prosecutor and defendant must not involve any persons conducting a presentence investigation for the court. Farrar v. State, 52 Wis. 2d 651, 657, 191 N.W.2d 214 (1971).

¶36. The integrity of the sentencing process demands that the report be accurate, reliable and, above all, objective.  Id. at 518.  A defendant’s cooperation and openness depend upon the objectivity of this report; a cooperative and open relationship would be impossible if the defendant perceives the probation officer to be a mere puppet of the district attorney’s office.  Because of the requirement that the report be objective, it is of vital importance that the author of the report be neutral and independent from either the prosecution or the defense.  Id.

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