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Plea Bargains — Breach: Procedural Issues — Preservation by Objection

State v. Leonard C. Matson, 2003 WI App 253
For Matson: Michael Yovovich, SPD, Madison Appellate

Issue/Holding: Where counsel had raised a pre-sentencing objection on ground of plea bargain breach to the use of a detective’s letter to the court asking for a sentence exceeding the bargained length, failure to raise further objection at sentencing did not constitute waiver:

¶32. Matson sufficiently preserved his objections to the letter for appeal.1 His counsel made numerous unsuccessful objections to the circuit court’s decision to consider the letter. Counsel need not object when the point at issue is one on which the court has just ruled adversely. Schueler v. Madison, 49 Wis. 2d 695, 707, 183 N.W.2d 116 (1971). Matson had already objected to the circuit court’s use of the police officer’s letter and his objections were unequivocally denied. Further objections would most certainly have proved futile. Submitting the sentencing memorandum was merely a tactical way to contend with the circuit court’s decision and cannot be considered waiver of the issue.

1 The dissent characterizes Matson’s appeal on this issue as “sandbagging” the circuit court judge. Reasonable people can disagree reviewing the same information. We are not persuaded that Matson is trying to pull a fast one on the circuit court judge. We are satisfied that Matson made every reasonable effort to preserve his objection to the court’s consideration of the detective’s letter. In any event, waiver is “a rule of judicial administration which we may, in the proper exercise of our discretion, choose not to employ in a given case”. Department of Revenue v. Mark, 168 Wis. 2d 288, 293 n.3, 483 N.W.2d 302, 304 (Ct. App. 1992).

The dissent, as suggested by the footnote, asserts sandbagging by Matson. ¶¶35-43. Matson clearly raised a pre-sentencing objection, which the trial court clearly denied. At sentencing, Matson presented his own memorandum, which led to an ambiguous exchange during which Matson affirmed that his “remedies are sufficiently served” by that memorandum. If anyone would have been sandbagged by that exchange, it would have been Matson, who could not realistically have perceived that it would amount to a withdrawal of his repetitively raised objection. And, the result favored by the dissent is counter to the idea that a definitive pretrial ruling preserves the objection without requiring further objection at trial. State v. Kutz, 2003 WI App 205, ¶27. It also violates the idea that in limine rulings serve the same function as contemporaneous objections, which is to put “the court on notice of the disputed issue, thereby providing a fair opportunity to prepare and address the issue in a way that most efficiently uses judicial resources.” State v. English-Lancaster, 2002 WI App 74, ¶¶15-16. How submission of a defense memorandum could possibly be thought to rectify the plea bargain violation is anyone’s guess and certainly unexplained by the dissent. Still, this a cautionary tale (waiver was avoided by a razor-thin 2-1 margin) whose moral is, repeat the objection. Especially when you sense that the trial court is seeding your path with mines.

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