On Point

State v. Benjamin D. Tarrant, 2009 WI App 121
For Tarrant: Susan E. Alesia, SPD, Madison Appellate

Issue/Holding:

¶6        Waiver. Before addressing the merits, the State argues that Tarrant’s no contest plea constitutes a waiver of all nonjurisdictional defects and defenses. State v. Multaler, 2002 WI 35, ¶54, 252 Wis. 2d 54, 643 N.W.2d 437. The guilty plea waiver rule is a rule of judicial administration and not of power. State v. Riekkoff, 112 Wis. 2d 119, 124, 332 N.W.2d 744 (1983). Therefore, in our discretion we can decline to apply the rule “particularly if the issues are of state-wide importance or resolution will serve the interests of justice and there are no factual issues that need to be resolved.” State v. Grayson, 165 Wis. 2d 557, 561, 478 N.W.2d 390 (Ct. App. 1991), aff’d, 172 Wis. 2d 156, 493 N.W.2d 23 (1992). Whether the State can modify or amend a previously issued detainer to block the application of the IAD has not been addressed in this state and must be resolved. In addition, the issue was rigorously litigated in the circuit court and our resolution will not sandbag the court. Finally, the parties have fully briefed the issue and, as we noted, the historical facts are not in dispute. We therefore turn to the merits of the issue.

State v. Chase E. Kaczmarski, 2009 WI App 117
For Kaczmarski: Harold L. Harlowe, David M. Gorwitz

Issue/Holding:

¶10      Both the State and Kaczmarski agree that the deferred prosecution agreement is analogous to a contract and therefore we draw upon principles of contract law in determining the respective rights of the parties to the agreement. See State v. Roou, 2007 WI App 193, ¶25, 305 Wis. 2d 164, 738 N.W.2d 173 (applying contract-law principles in the context of a plea agreement). The interpretation of a written contract is a question of law subject to de novo review. State v. Toliver, 187 Wis. 2d 346, 355, 523 N.W.2d 113 (Ct. App. 1994). “[W]hen terms of a contract are plain and unambiguous, we will construe the contract as it stands.” Id. A contract is ambiguous only when it is “‘reasonably or fairly susceptible of more than one construction.’” State v. Windom, 169 Wis. 2d 341, 349, 485 N.W.2d 832 (Ct. App. 1992) (quoting Borchardt v. Wilk, 156 Wis.  2d 420, 427, 456 N.W.2d 653 (Ct. App. 1990)). Whether a contract is ambiguous is a question of law we decide de novo. Id. We may not construe a contract “to revise an unambiguous contract in order to relieve a party to a contract ‘from any disadvantageous terms’ to which he or she has agreed.” Id. (quoting Dykstra v. Arthur G. McKee & Co., 92 Wis. 2d 17, 38, 284 N.W.2d 692 (Ct. App. 1979)). We construe ambiguous language in a contract against the drafter. Walters v. National Props., LLC, 2005 WI 87, ¶14, 282 Wis. 2d 176, 699 N.W.2d 71.

State v. Chase E. Kaczmarski, 2009 WI App 117
For Kaczmarski: Harold L. Harlowe, David M. Gorwitz

Issue: Whether commission of an offense during the period of the deferred prosecution agreement permitted resumption of the prosecution after that period expired, under the wording of the agreement.

Holding:

¶13      We conclude that the deferred prosecution agreement unambiguously provides that, in the event that Kaczmarski breaches the agreement, the district attorney may resume prosecuting Kaczmarski only during the deferral period. The agreement plainly states that, if Kaczmarski violates the agreement, “the District Attorney may, during the period of deferred prosecution … prosecute you for this offense.” (Emphasis added.) As Kaczmarski argues, resumption of the prosecution after the deferred prosecution period expired is not a remedy provided by the agreement. The agreement provides the State with two potential remedies in the event of a breach: revocation/modification of the agreement or prosecution on the charged offense, neither of which is permitted after the deferred prosecution period has expired. We conclude that the only reasonable construction of the deferred prosecution agreement is that the district attorney may resume prosecuting Kaczmarski for breach of the agreement only before the agreement expires.

Deferred prosecution agreements are regulated by statute, § 971.37; K. argues that the statute compels relief, but the court holds that argument forfeited, ¶8. In theory, then, the opinion only interprets the language of this particular agreement, and observes by way of dicta:

¶19      It may be that the prosecutor here should have included a provision that permitted a resumption of prosecution for a breach after the deferral period. But we may no more write such a term into this agreement than we may write such a term into the statute.

But is that right? It is not so easy, after all, to ignore the statutory scheme, notwithstanding K.’s failed invocation of it. For starters, § 971.37(2) clearly seems to condition termination of the agreement (and thus resumption of the prosecution) on written notice “prior to completion of the period of the agreement.” On top of that, subs. (3) clearly seems to mandate dismissal with prejudice “(u)pon completion of the period of the agreement, if the agreement has not been terminated under sub. (2).” And compare § 971.39(1)(f) (at once broader, in that it applies to almost all crimes, and narrower, in that it applies only to smaller counties—dismiss with prejudice “upon the completion of the period of the agreement”). Can an agreement provide, in seeming contravention of the statutory scheme, for resumed prosecution after the period of the agreement? Maybe, according to ¶19, but the possibility is far from self-evident, as the court itself suggests:

¶18      Moreover, the State’s policy argument is undercut by the plain language of the deferred prosecution agreement statute, Wis. Stat. § 971.37(1m)(b). ^[6] As the prosecutor did here, the legislature plainly limits the time period in which prosecutions may be resumed. Section 971.37(2) provides that the “written [deferred prosecution] agreement shall be terminated and the prosecution may resume upon written notice by either the person or the district attorney to the other prior to completion of the period of the agreement.” (Emphasis added.) It is unreasonable to argue that an individual deferred prosecution agreement is against public policy when the legislature has adopted by statute the very provision being objected to.

It is hardly unreasonable to argue that an agreement is against public policy when it contravenes the very legislation that authorizes it.

State v. Richard L. Wesley, 2009 WI App 118, PFR filed 8/4/09
For Wesley: Alvin Ugent

Issue/Holding: A plea agreement under which the State dismissed one count “outright” and “(b)oth sides are free to argue” was ambiguous as to whether to State could argue the facts underlying the dismissed charge at sentencing:

¶17      We thus conclude that the plea bargain was ambiguous because the agreement could have meant the State would either (1) dismiss the charges outright, with prejudice, and not refer to the facts underlying the charge in any form at sentencing; or (2) dismiss the charges so that Wesley would not face exposure to a sentence for that charge, but both sides would be free to comment on the underlying facts of the dismissed charge and argue their significance for sentencing purposes. The agreement is just plain silent about what the term was to mean. It could have reasonably meant either of the above.

What, then, is the implication? What precise relief is available against an ambiguous provision? Can Wesley obtain specific performance of an ambiguous provision? The court doesn’t explicitly answer the question, leaving the outcome a bit, well, ambiguous itself.

State v. Christopher S. Hoppe, 2009 WI 41, affirming 2008 WI App 89
For Hoppe: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: A court may incorporate a plea questionnaire form into the guilty plea colloquy, but only up to a point:

 ¶32     The Plea Questionnaire/Waiver of Rights Form provides a defendant and counsel the opportunity to review together a written statement of the information a defendant should know before entering a guilty plea. A completed Form can therefore be a very useful instrument to help ensure a knowing, intelligent, and voluntary plea. The plea colloquy cannot, however, be reduced to determining whether the defendant has read and filled out the Form. Although we do not require a circuit court to follow inflexible guidelines when conducting a plea hearing, ^[18] the Form cannot substitute for a personal, in-court, on-the-record plea colloquy between the circuit court and a defendant.

State v. Richard L. Wesley, 2009 WI App 118, PFR filed 8/4/09
For Wesley: Alvin Ugent

Issue/Holding:

¶12      The interpretation of plea agreements is rooted in contract law. See State v. Deilke, 2004 WI 104, ¶12, 274 Wis. 2d 595, 682 N.W.2d 945. Contractual language is ambiguous only when it is “reasonably or fairly susceptible of more than one construction.” State v. Windom, 169 Wis. 2d 341, 348-49, 485 N.W.2d 832 (Ct. App. 1992) (citation omitted). Whether an ambiguity exists in a plea agreement is a question of law we decide de novo. See id. at 349.

Wesley, as the party seeking to show a breach of the agreement, “bears the burden of convincing us the agreement is not ambiguous and his interpretation is correct,” ¶16.

Separate but related: What do you do with ambiguous terms? Every federal circuit court as well as a substantial number of state courts hold “ that ambiguities in plea agreements must be construed against the government and in accordance with the defendant’s reasonable understanding of the agreement,” ¶18 n. 5. But the court is bound by its prior holding, State v. Jorgensen, 137 Wis. 2d 163, 169-70, 404 N.W.2d 66 (Ct. App. 1987), “that construction which would safeguard the public interests, substantially, must be given preference,” ¶18. The court adds: “Were we writing on a clean slate, and were the issue properly before us, we would join the unanimous agreement of the federal circuits. But … Jorgensen … is the law in this state unless or until our supreme court determines otherwise,” ¶18 n.5.

State v. Jeremy Denton, 2009 WI App 78 / State v. Aubrey W. Dahl, 2009 WI App 78For Denton: Paul G. Bonneson
For Dahl: Patrick M. Donnelly

Issue/Holding: Lay witness, who testified to computer-generated animation that attempted to recreate the alleged crime through the eyes of certain witnesses, lacked personal knowledge to undertake this effort:

¶16      As a lay witness, Ambach’s testimony should have been limited to matters of which he had personal knowledge. See Wis. Stat. § 906.02. … Contrary to the State’s assertions, the computer-generated animation was not simply a demonstrative exhibit—like a rough drawing on a chalkboard—used to illustrate a testifying lay witness’s testimony. See Anderson v. State, 66 Wis. 2d 233, 248, 223 N.W.2d 879 (1974). Rather, as Ambach testified at trial, it was intended to depict the State’s three key witnesses’ “memories” and show “what people did.” Thus, the animation combined elements from the testimony of Giovannoni, Hohisel, and Biever with measurements provided by Clapper to produce an animation which summarized the State’s version of what occurred. As a lay witness lacking personal knowledge, Ambach’s testimony to that effect was inadmissible.