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Prosecutorial Vindictiveness – New Charges; Application of “Read-in” Rule

State v. Charles A. Clayton-Jones, 2010AP2239-CR, District 4, 12/15/11

court of appeals decision (not recommended for publication); for Clayton-Jones: Martin E. Kohler, Craig S. Powell; case activity

 Clayton-Jones resolved a 2006 charge (involving sexual assault of a boy) with a plea bargain, in which the state was to recommend 12 years initial confinement. Before sentencing, he allegedly violated bond conditions, and the state sought to be relieved of its bargained-for allocution limit. But the state withdrew this effort, in the face of Clayton-Jones’ compelling legal argument that it was seeking an impermissible remedy. The plea agreement remained intact, Clayton-Jones was sentenced to 10 years IC, and immediately after sentencing the state filed a new complaint alleging a 2008 sexual assault of the same boy. On this interlocutory appeal, the court rejects dismissal of the new charge against a theory of vindictive prosecution.

Clayton-Jones must show either actual vindictiveness, or a reasonable likelihood of vindictiveness, ¶16, citing State v. Johnson, 2000 WI 12, ¶¶16-18, 232 Wis. 2d 679, 605 N.W.2d 846. Actual vindictiveness is rarely found, and not raised by Clayton-Jones.

¶18      Instead, the question here is whether there is a “realistic likelihood of vindictiveness” carrying with it the presumption of vindictiveness.  The core inquiry in this regard is whether the circumstances indicate that the challenged prosecutorial action was an “impermissible governmental response to non-criminal, protected activity.”  Johnson, 232 Wis. 2d 679, ¶28.  As the Johnson court explained:

The legal principles surrounding prosecutorial vindictiveness developed in a series of United States Supreme Court cases recognizing the basic principle that it is a violation of due process when the state retaliates against a person “for exercising a protected statutory or constitutional right.”

Id., ¶20 (citation omitted).

The claim of retaliation because the sentencing court imposed less time than the prosecutor recommended necessarily fails, because it raises the specter of a reaction to something the judge, not Clayton-Jones, did, ¶19. As for the argument that the new charge amounted to retaliation for his opposition to prosecutorial withdrawal from the plea bargain: the new charge may well represent the prosecutor’s interest in increasing Clayton-Jones’ exposure to punishment, but this doesn’t mean that such motive is illicit:

¶27      The only reasonable conclusion to draw from these facts is that the prosecutor simply learned that her request was legally impermissible.  There is no reason to suppose that the prosecutor continued to desire the impermissible remedy—one that might well have been cause for later reversal on appeal—after the prosecutor learned that it was contrary to established law.  This situation does not show that the prosecutor was attempting to punish Clayton-Jones for his opposition to what the prosecutor apparently came to realize was her own flawed motion.

¶28      In addition, we agree with the State that the situation here is unlike the cases brought to our attention in which vindictive cause and effect have been found to exist.  Seee.g.Blackledge v. Perry, 417 U.S. 21, 22-23 (1974) (after defendant was tried and convicted of a misdemeanor and acted to trigger a statutory right to a trial de novo in a higher court, the prosecutor filed a felony charge based on the same conduct); see generally Johnson, 232 Wis. 2d 679, ¶¶19-32 (the “presumption of vindictiveness arises when a prosecutor files more serious charges against a defendant after the defendant appeals his conviction and wins a new trial,” id., ¶32).

Conduct underlying a charge explicitly dismissed and “read-in” for sentencing purposes may not be used to support a subsequent prosecution, ¶31. Although it isn’t “clear … what must minimally occur before alleged conduct is treated as a ‘read-in’ for purposes of the Wisconsin rule prohibiting a future prosecution,” Clayton-Jones’ argument that the read-in principle bars this prosecution “relies on a factual assertion unsupported by the record,” ¶¶,32-33.

¶39      In sum, the sentencing court in the 2006 prosecution did not know about the alleged fellatio when it sentenced Clayton-Jones and, therefore, that conduct could not have been “read in” and considered for sentencing purposes in that case.  Thus, the “read-in” rule that Clayton-Jones relies on has no application here.

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