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Plea Bargains — Validity: Enforceability of “Internally Inconsistent” Terms

State v. Sou W. Her, 2008 WI 39, dismissing as improvidently granted, review of unpublished decision
For Her: Donald J. Chewning


¶2        This case involves Her’s agreement to plead guilty in exchange for an aggregate 15-year sentence recommendation from the State (10-years initial confinement with 5-years extended supervision). The record clearly indicates that the district attorney intended Her’s 15-year sentence to match what was believed to be the sentence of Her’s co-defendant, Tong Xiong, who was charged two years previously. [1] However, at the time of the plea offer, the district attorney misidentified Xiong’s sentence as being only 15, not 25, years and based his offer on that mistake. In response to questions by the court, the district attorney acknowledged that the offer was based upon that mistake.

¶4        With the contradictory language of the plea offer simultaneously describing both a 15-year sentence and a sentence equal to Xiong’s, the agreement’s terms appear to be internally inconsistent, calling the plea agreement into doubt. A valid plea agreement requires a meeting of the minds, evidenced through assent to the agreement’s terms. State v. Bembenek, 2006 WI App 198, ¶11, 296 Wis. 2d 422, 724 N.W.2d 685. However, neither party has addressed or established whether there was a required meeting of the minds in the formation of the plea agreement. Without the parties addressing this foundational issue, we are unable to determine whether a breach of the plea agreement has occurred.

Dismissal raises a couple of potentially interesting questions. First: why did the court take review in the first place? Whatever concern the court perceived remains unresolved in light of the dismissal, which of course means that someone with the same or similar-enough problem can press vigorously for review. Here’s the issue as formulated by the court (and posted on its calendar):

Does the state commit an actionable breach of a plea agreement when, in response to the sentencing court’s questioning as to the justification for the plea agreement, it informs the sentencing court that the plea offer was extended in error, although the state also stands by the recommendation agreed to as part of the plea agreement?  If so, what is the appropriate remedy?

Though not entirely free from doubt, the court’s interest possibly was piqued by whether the State may, by responding honestly to pointed questioning from the court, undermine the terms of a plea bargain.The other question is raised by the result itself: if, as the court now seems to hold, the plea bargain wasn’t “valid” because its “terms appear to be internally inconsistent,” then why wouldn’t Her be entitled to withdraw the plea? The short answer is that he should be ( if he wanted to)—he entered his plea on an assumption [that he’d get the benefit of an unembellished recommendation] that turned out to be incorrect, and the plea was therefore involuntary—and nothing in this short opinion should be read to the contrary. Indeed, the issue simply wasn’t raised: Her explicitly limited his request for relief to specific performance as opposed to plea-withdrawal (¶8 n. 3).

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