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Sentence Modification: Judicial Estoppel Bar — Agreement to Recommended Sentence

Scott A. Magnuson, 220 Wis. 2d 468, 583 N.W.2d 843 (Ct. App. 1998)
For Magnuson: T. Gregory Amann


We conclude that Magnuson is judicially estopped from asserting that the two twelve-year concurrent sentences are excessive. Although Magnuson contends he did not agree to the recommended sentence, the record belies his claim. Magnuson’s probation officer set forth the recommendation in the presentence investigation report (PSI). The court asked Magnuson if he reviewed the PSI, and Magnuson’s attorney stated that both he and Magnuson had reviewed it. After assistant district attorney Francis Collins concurred with the recommendation, defense counsel stated “we’re also in agreement with the recommendations and also with what Mr. Collins has stated.” During his allocution, Magnuson expressed no objection to the proposed sentence. The record thus demonstrates that Magnuson agreed to the proposed sentence. He cannot agree to the recommendation of an imposed and stayed sentence, violate probation, and then take the position on appeal that the sentence was excessive. If Magnuson objected to the recommendation, he should not have entered into the agreement.


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