State v. Carl A. Reed, 2013 WI App 132; case activity
Reed pled no contest to substantial battery in exchange for the State’s agreement to dismiss 3 other counts and to refrain from making a sentencing recommendation. The State also received the right to withdraw from the agreement if Reed “commits any new or additional crimes.” Reed was later charged with new crimes. So, the State presented a recommendation at sentencing.
Issue: Where a plea agreement requires a defendant to refrain from committing new crimes, does the State’s filing of new charges establish that the defendant breached the agreement?
Reed argued that charges, which are based upon a probable cause finding, are neither proof of guilt nor clear and convincing evidence that he breached the plea bargain. But the court of appeals held:
We agree with the circuit court that it would be unreasonable to conclude that the promise to commit no new crimes requires a conviction to be enforceable. The State would not have bargained for a condition that would require the whole panoply of criminal proceedings, not to mention the delay, before the parties could determine if Reed had fulfilled his part of the plea agreement. Slip op. ¶9.
Plus, at sentencing the State may present and a circuit court may consider pending charges and alleged crimes. Id. (citing State v. Leitner, 2002 WI 77, ¶45, 253 Wis. 2d 449, 646 N.W.2d 341). So, whether a breach occurred or not, the circuit court could consider the new charges when it designed a sentence for Reed.
Issue: When a defendant breaches a plea agreement, may the State choose its remedy–one that holds the defendant to his plea rather than rescinding the plea?
“Yes,” said the court of appeals. However, the circuit court still exercises its discretion to decide whether or not a proposed remedy is appropriate. That requires consideration of all the circumstances as well as the State’s and defendant’s interests. Id. ¶13. , See e.g. State v. Deilke, 2004 WI 104, ¶¶ 25-26, 274 Wis. 2d 595, 682 N.W.2d 945. The court of appeals held that the circuit court did so.
¶13 . . . [T]he circuit court noted that vacating the entire agreement would expose Reed to three more charges with possible additional prison time of four and one-half years. The circuit court concluded that the best remedy under the totality of the circumstances would be to allow the State to make a recommendation at sentencing.
¶14 . . . The nonbreaching party—the State—did not seek to vacate the entire agreement. Allowing the State to make a sentencing recommendation based on the probable cause charging of new crimes does not deprive Reed of any constitutional protections because this dispute does not arise in the prosecution for the new crimes. Rather, Reed is being held responsible for the first battery, to which he pled no contest, and the State’s new sentencing recommendation in light of the new pending charges was appropriately considered by the sentencing court.
Interestingly Reed raised 2 issue for review: (1) whether the State breached the plea bargain by making a recommendation at sentencing, and (2) whether that breach meant he could withdraw his plea. The State (which marched into the sentencing hearing and made a recommendation over Reed’s protests) refocused the appeal on the remedy for the defendant’s alleged breach. In the State’s view, both parties performed 1 prong their bargain (Reed pled no contest to a serious felony; the State dismissed 3 charges). But then Reed reneged on his promise not to commit new crimes so that permitted the State to renege on its promise not to recommend a sentence. Sounds all “even Steven” but nobody cited any precedent for the unusual process and the partial-recission-of the-plea-agreement remedy. When the State breaches a plea agreement, “the choice of remedy is not up to the defendant; it rests with the court.” State v. Howard, 2001 WI App 137, ¶37. The State’s brief concedes that there is little case law addressing the State’s remedy when the defendant breaches or the remedy here is unusual. So maybe this case will make it to the Supremes.
While the Court’s conclusion that conviction is not required for breach of the agreement, that is not really relevant here. The question under the plea agreement appears to be whether the defendant “committed” a new crime. The Court here appears to have overlooked the requirement that the factual basis for an alleged breach of a plea agreement must be proven by clear and convincing evidence. State v. Williams, 2002 WI 1, ¶¶6-15, 249 Wis.2d 492, 637 N.W.2d 733. Probable cause, which is all that is established by a criminal complaint or bindover, is most decidedly NOT clear and convincing evidence. It is unclear from the decision whether anything more than the mere fact of the charge was presented in support of the claimed breach. The Court also appears to have overlooked the fact that, just because the sentencing court can consider new charges, that does not absolve the prosecutor from its obligations under the plea agreement or render the state’s breach harmless. The prosecutor’s recommendation, in other words, is NOT meaningless. Over all, not a very well reasoned decision.
As has been repeatedly said, a plea bargain is a constitutional contract — contract principles generally apply, but they are informed by notions of due process. Even if a breach is assumed here, the remedy remains unclear. That is, the agreement says that post-plea criminality works a breach, but (so far as the opinion reveals, anyway), without enunciating a remedy. This omission should work against the State, in the sense that plea bargain provisions are strictly construed against it (or, if one prefers, against the party drafting the contract). If the State wanted some sort of “liquidated damages” provision — upon breach, the plea will remain intact but the State’s allocution becomes unfettered — then the State should have bargained for that provision. In effect, the court has permitted the State unilateral authority to redraft the terms of the plea bargain. Hard to see how this “morphed” plea bargain, which the defendant didn’t sign on to, doesn’t make the plea itself involuntary.