SCOW: No breach in recommending consecutive sentences

State v. Patrick K. Tourville, 2016 WI 17, 3/15/2016, affirming an unpublished court of appeals decision; case activity (including briefs)

Patrick Tourville pled to four crimes in a deal that called on the state to recommend a sentence no higher than the one recommended by the PSI. The PSI recommended a prison term for each count; the state recommended that these terms be run consecutively. So when the state asked for consecutive time even though the PSI didn’t, did it honor its commitment to follow the PSI? If you answered “no,” the one thing we know about you is that you’re not a member of the Wisconsin Supreme Court.

Tourville’s counsel did not object to the recommendation, so the issue is before the court as an ineffective assistance claim. (¶1). This turns out not to matter, because the unanimous court simply decides there was no breach, relying on a handful of cases including a prior court of appeals decision, State v. Bowers, 2005 WI App 72, 280 Wis. 2d 534, 696 N.W.2d 255:

Regardless of any differences in the language of the plea agreements, the tenets of contract interpretation set forth in Bowers apply with equal force here. The key issue is whether the plea agreement contains language regarding concurrent or consecutive sentences. Both the plea agreement and the PSI in this case, as well as the plea agreement in Bowers, were silent as to whether the sentences would be concurrent or consecutive. If the recommendation for concurrent sentences was not bargained for and is not contained within the terms of the plea agreement, we will not engraft those terms into the agreement.

We also do not agree that Bowers was wrongly decided and ought to be overruled. The Bowers court analyzed and was guided by case law from both Wisconsin and other jurisdictions in reaching its determination.

Central to its analysis was the premise that in the absence of a provision in a plea agreement regarding sentencing, courts will not find a breach of the plea agreement when the State recommends consecutive sentences. See id., ¶19 (citing [United States v. Fentress, 792 F.2d 461, 464-65 (4th Cir. 1986)] (holding that the prosecution did not breach a plea agreement by asking the court to order restitution and consecutive sentences, where the agreement did not mention either restitution or consecutive sentences and the government otherwise kept its promises on the proposed length of imprisonment); White v. United States, 308 F.3d 927, 929 (8th Cir. 2002) (concluding that the government did not breach a plea agreement by recommending that the defendant’s new sentence should run consecutive to his probation revocation sentence because the plea agreement contained no provision for the sentences to be served concurrently); Doles v. State, 55 P.3d 29, 34 (Wyo. 2002) (determining that because there was no agreement that the sentence was to be concurrent, and the terms of the agreement did not establish that the prosecutor was required to refrain from asking for a consecutive sentence, it was permissible for the prosecutor to argue for a consecutive sentence).

(¶¶33-35).

That’s pretty much the whole of the court’s analysis. Tourville argued that since the PSI was silent on whether his sentences should be consecutive, the state, which had agreed to be bound by the PSI, should also have been silent on the matter. The opinion really doesn’t address this argument; neither does it grapple with the reasoning of Judge Brown’s concurrence/dissent in Bowers, which Tourville quoted in his brief (and which is worth reading in full):

Much is made in the majority opinion of our case law explaining how we draw upon contract law in resolving plea bargain issues. But a major tenet of contract law is that the mutuality of assent underlies an enforceable contract. In plea bargaining terms, there must be a promissory exchange and the promise of certain benefits, including the exact penal promises, in return for a defendant’s promise to enter a guilty or no contest plea. If we allow the State to bargain for a recommendation of a specific sentence and then let the State unilaterally recommend a consecutive sentence over and above the sentence recommendation mutually assented to, we are permitting the State to change the rules of the game.

Bowers, 280 Wis. 2d 534, ¶26.

In any case, for the practitioner, it’s just one more term to nail down during plea negotiations, when there’s still something you can do about it.

Tourville raised one other issue: whether there was sufficient factual basis for his plea to theft (specifically, the “taking an carrying away” mode of commission) when he did not take the gun safe from the victim’s residence, but provided its takers with a secluded place to break it open. (¶¶45-48). The court rejects this argument on the ground that he was charged as a party to the crime:

We recognize that Tourville was not charged directly with committing felony theft. Rather, he was charged as a party to the crime of felony theft because he willingly aided the other thieves in their continued efforts to carry away the safe and the guns. Tourville aided the other thieves when he took them to his campsite, helped open the safe, and assisted in the disposal of the safe along the side of the road in a swamp. Indeed, he was even subsequently paid for his services. These facts provide a sufficient basis for Tourville’s guilty plea to the charge of party to the crime of felony theft.

(¶51).