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Plea Bargains — Renegotiation of Original Bargain After Unilateral Prosecutorial Withdrawal

State v. Antonio A. Scott, 230 Wis.2d 643, 602 N.W.2d 296 (Ct. App. 1999)
For Scott: Jennifer L. Weston.

Issue: Whether Scott was denied effective assistance of counsel when his attorney allowed him to renegotiate an already-consummated plea bargain without advising that the original agreement was enforceable.


Holding: Counsel’s failure to inform Scott that he had a fully enforceable right to performance of the original plea bargain, prior to renegotiating the agreement, was both deficient and prejudicial.


Scott entered no contest pleas pursuant to plea bargain. Certain restrictions were thereby placed on prosecutorial allocution. At sentencing, a different prosecutor appeared and withdrew the state from the agreement, claiming that it was entered without authority. Scott then renegotiated a less favorable agreement (which allowed the prosecutor to request greater punishment), without being informed that the original agreement was enforceable. The court of appeals holds that counsel’s failure to provide this advice was ineffective assistance. Once a plea is entered pursuant to a plea bargain, substantive due process obligates prosecutorial compliance, without any need to show detrimental reliance. Thus, the state was obligated to adhere to the original limit on allocution. Counsel assumed, upon the state’s withdrawal from the original agreement, that Scott’s choices were limited to plea-withdrawal or assent to the new offer. Counsel’s failure to seek or advise Scott of the third option – specific performance of the first agreement – was both deficient and prejudicial (“a fortiori … a failure to seek enforcement of this constitutional right is unfair and constitutes prejudice to the defendant”). State v. Paske, 121 Wis. 2d 471, 360 N.W.2d 695 (Ct. App. 1984) distinguished.


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