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Prosecutor who claimed to be “ethically bound” to recommend probation despite “changed landscape” did not breach plea agreement

State v. Jeremy Joseph Hamilton, 2022AP1350-CR, District 2, 03/01/2023, (one-judge decision, ineligible for publication) case activity

Some readers of this decision might find themselves wondering why there’s no equivalent to baseball’s “tie goes to the runner” rule in criminal appeals. Others might find themselves researching the rule of lenity. However, it turns out there is no such rule in baseball, and the rule of lenity only assists defendants as a canon of statutory construction where a “grievous ambiguity” exists. See State v. Guarnero, 2015 WI 72, ¶26, 363 Wis. 2d 857, 867 N.W.2d 400; see also State v. Williams, 2002 WI 1, ¶19, 249 Wis. 2d 492, 637 N.W.2d 733 (rejecting a “close case” rule which would favor criminal defendants in breach of plea claims). As the court of appeals puts it: “…this is a very, very close case…[but] even close cases have to be decided one way or another…” (Opinion, ¶14).

The decision’s relatively lengthy fact section seem to more than justify the “very, very close case” label placed on this case by both the circuit court and the court of appeals. Hamilton’s plea deal called for a felony intimidation of a victim charge to be dismissed and read-in at sentencing, a strangulation/suffocation charge to be amended to misdemeanor battery, and for Hamilton to plead to disorderly conduct as an act of domestic abuse and as a repeater. In exchange for Hamilton’s pleas, the state agreed to recommend three years consecutive probation and an imposed and stayed prison sentence of two years initial confinement and two years extended supervision. (¶2).

At sentencing, the prosecutor asked the court to follow the state’s recommendation, noting that while this was a “close case” that it wasn’t “necessarily past the threshold for probation” and that “probation would[n’t] necessarily unduly depreciate the seriousness of this offense.” (¶3). The prosecutor further criticized Hamilton for his “cowardly act,” called his recorded jail calls “incredibly concerning” and noted that he went to “great lengths to avoid responsibility.” (¶3). The prosecutor’s reference to Hamilton’s jail calls prompted the court to adjourn the hearing so it could review the calls prior to sentencing. (¶6).

At the continued sentencing hearing a few weeks later, the court further questioned  the state about the plea agreement, which also included no conditional jail time. The prosecutor told the court that it stood by the recommendation, while noting that the state was “ethically bound” by the recommendation even if the “landscape has changed.” The prosecutor then explained the “changed landscape:” Hamilton had been charged with additional felonies after his plea. The prosecutor twice more noted that the state was nevertheless “ethically bound” by the recommendation. (¶8). After a lengthy back and forth with the court about the state’s recommendation, the prosecutor concluded by stating: “I just do not want to breach my plea agreement, and I would ask … that the Court follow the recommendation with no further argument.” (¶9).

Unsurprisingly, the court rejected the parties recommendations and stated that probation would unduly depreciate the seriousness of Hamilton’s offense and sentenced Hamilton to four years in prison. (¶12).

The court of appeals, in affirming the denial of Hamilton’s postconviction motion, agrees with the circuit court’s assessment that this is a “very, very close case,” but holds that Hamilton failed to establish a “material and substantial breach of the plea agreement” (¶14).

Under State v. Williams, 249 Wis. 2d 492, ¶47, the state may not undercut the terms of the plea agreement by implying that it may not have made such an agreement had it known more about the defendant at the time of the plea. While the state may not agree to keep information from the sentencing court and the state need not “enthusiastically recommend a plea agreement,” it may not present a “less than neutral” version of the agreement. Id. 

The court of appeals rejects Hamilton’s reliance on the prosecutor’s comments about the “changed landscape” and the repeated statements that the state was “ethically bound” by the agreement and instead concludes that the prosecutor’s comments were “perfectly justified” in light of the totality of the circumstances. (¶20). The court further focuses on the fact that the prosecutor repeatedly “stood by” the plea agreement and, in the face of the court’s concern over the recommendation, “ardently stuck to and repeatedly asked the circuit court to go along with the sentencing recommendation.” Moreover, the court explains that the record does not suggest the prosecutor was “trying to do a nod, nod, wink, wink in an attempt to get the court to impose a stiffer sentence than the agreed upon recommendation.” (¶24).

Hamilton’s reply brief seems to have adeptly anticipated the appellate court’s focus on the prosecutor’s apparent intent to not breach the plea agreement. The prosecutor made the agreed upon recommendation and repeatedly stood by the parties plea agreement. Nevertheless, Hamilton pointed out that the state’s subjecting intent is irrelevant. See Hamilton’s reply brief. By explaining to a skeptical sentencing court that the probation deal was agreed to before Hamilton was charged, after the plea hearing, with additional felonies and that it was “ethically bound” by its agreement, the state undercut the probation recommendation and the benefit due to Hamilton in exchange for his pleas. Nevertheless, a de novo review of the record ended with the court agreeing that the “totality of the state’s sentencing presentation” did not indicate the prosecutor was “backing away” from its agreed upon sentencing recommendation. (¶24)

In a somewhat surprising result, a quick search of On Point’s archives reveals that some “close cases” do in fact go against the government.

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