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Plea Bargains — Validity: Reopen and Amend to Less Serious Offense Upon Successful Completion of Probation

State v. Anthony L. Dawson, 2004 WI App 173
For Dawson: William E. Schmaal, SPD, Madison Appellate

Issue: Whether a plea bargain under which the State agrees to subsequently reopen the case and amend it to a lesser charge is legally unenforceable and, thus, renders the plea unknowing and involuntary.

Holding: A reopen-and-amend provision in a plea agreement is unauthorized and unenforceable under State v. Hayes, 167 Wis. 2d 423, 425-28, 481 N.W.2d 699 (Ct. App. 1992). ¶¶8-10. Under Hayes, “once a charge becomes a conviction, a prosecutor may not amend it, because amending the charge would also necessarily require amending the judgment of conviction to reflect the reduced charge, which no statute authorizes either a prosecutor or trial court to do,” ¶18. The plea itself is therefore invalid:

¶11 … A plea agreement that leads a defendant to believe that a material advantage or right has been preserved when, in fact, it cannot legally be obtained, produces a plea that is “as a matter of law … neither knowing nor voluntary.” See State v. Riekkoff, 112 Wis. 2d 119, 128, 332 N.W.2d 744 (1983).

¶13. Here, the record shows that the reopen-and-amend provision was a “primary inducement” for Dawson’s no contest plea, that he believed when he entered his plea that a post-probation reopening of his case to reduce the charge was possible and that neither the State nor the trial court disabused him of that notion at any time prior to his plea, conviction and sentencing.

¶14. Thus, as in Riekkoff, Dawson entered his plea under a misapprehension that he had preserved the possibility of a material benefit to him that was legally impossible for him to obtain, and the State and the trial court acquiesced in this mistaken view. We therefore conclude that Dawson’s plea was “neither knowing nor voluntary,” and he must be permitted to withdraw it. Id.; also see State v. Woods, 173 Wis. 2d 129, 140, 496 N.W.2d 144 (Ct. App. 1992) (concluding that a plea agreement providing for a “legal impossibility” renders the resulting plea “neither knowing nor voluntary”)

Nor would sentencing court rejection of the unenforceable provision “have cured the error stemming from the fact that Dawson was induced to enter his plea by a promise that the State could never keep,” ¶15. As a related matter, it’s also unimportant that Dawson’s ultimate attainment of a reduced charge was conditional and uncertain, because he could never get what he bargained for, the possibility of such an outcome. ¶23. Separately, the court rejects a loophole to Hayes, under which the State would move to reopen and amend before successful completion of probation. ¶¶20-21.


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