by admin
on February 13, 2001
State v. Michael F. Howard, 2001 WI App 137, 630 N.W.2d 244
Issue: Whether the remedy for a plea bargain breach should be to vacate the plea or to resentence on the plea.
Holding:
¶36 Our reading of Bangert and Smith leads us to conclude that the remedies and procedures outlined in Santobello are consistent with Wisconsin law. Specifically, the sentencing court has discretion to determine the appropriate remedy for a breach. See Kingsley v. United States, 968 F.2d 109, 113 (1st Cir. 1992). If the trial court determines that resentencing is appropriate, the court should order resentencing by a different judge. See Santobello, 404 U.S. at 262-63.¶37 The choice of remedy is not up to the defendant; it rests with the court. See Kingsley, 968 F.2d at 113. However, if the defendant seeks only specific performance by resentencing, then the court can simply order resentencing by a different judge. See United States v. Kurkculer, 918 F.2d 295, 302 (1st Cir. 1990). When selecting a remedy, sentencing courts should bear in mind that specific performance, the less extreme remedy, is preferred. See Kingsley, 968 F.2d at 113.
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by admin
on February 13, 2001
State v. Michael F. Howard, 2001 WI App 137
Issue/Holding: Failure to object to plea bargain breach waives the issue, leaving ineffective assistance of counsel the only mechanism for raising it. ¶21.
Also see, State v. Harold Merryfield, 229 Wis.2d 52, 598 N.W.2d 251 (Ct. App. 1999) (asserted plea bargain violation held waived, under State v. Smith, 153 Wis. 2d 739, 451 N.W.2d 794 (Ct. App. 1989); Merryfield knew about – and raised – the potential plea bargain violation but abandoned it when he entered the later pleas).
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by admin
on February 13, 2001
State v. Brady T. Terrill, 2001 WI App 70, 242 Wis. 2d 415, 625 N.W.2d 353
For Terrill: Eileen Hirsch, SPD, Madison Appellate.
Issue: Whether the trial court properly reconsidered a deferred-acceptance agreement (which would have allowed the defendant to avoid conviction upon successful completion of supervision), entering judgement of conviction after deeming the offense more serious than originally thought.
Holding:
¶24. If the State had asked the circuit court to enter judgment on the felony after viewing the videotape, the State’s action would have violated Terrill’s right to fundamental due process. Whether that action took place minutes, hours, or days after Terrill entered his pleas, would be legally irrelevant.
¶25. The circuit court’s action violates the same fundamental due process rights as would the State’s withdrawal from a plea agreement. The timing of the circuit court’s action is equally irrelevant.
¶26. Because the circuit court was bound by the plea agreement, we conclude it did not have the discretion to revoke the agreement and accept Terrill’s plea to the felony. Therefore, we reverse and remand with directions to reinstate the agreement.
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by admin
on February 13, 2001
State v. John D. Williams, 2001 WI App 7, 241 Wis. 2d 1, 624 N.W.2d 164, affirmed without discussing this issue, 2002 WI 1
For Williams: John A. Pray
Issue: Whether the defendant properly preserved objection to a prosecutorial breach of plea bargain.
Holding: ¶13:
(T)he trial court recognized it as an objection and initially agreed with Williams’s attorney. The objection was sufficient. That Williams’s counsel did not repeat his objection when the prosecutor replied that she was in fact abiding by the agreement is of no moment. The objection was out there, the court understood it to be so and that is all that is necessary. Objections need not be made with technical precision. They need to relay the proper information to the court. This objection passed muster.
The defense objection was sustained by the court (see also cc op, ¶20), eliciting a disavowal from the prosecutor that she was changing her recommendation. The court of appeals’ discussion of this point is cursory, but the result might be read as implicitly standing for the idea that once a breach occurs, it can’t be cured simply by sustaining an objection.
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by admin
on February 13, 2001
State v. Anthony A. Parker, 2001 WI App 111
Issue: Whether transfer to an out-of-state prison breached the plea bargain.
Holding:
¶7 … (I)n order to prevail on a claim of breach of a plea agreement, Parker cannot rely on whatever his ‘reasonable expectations’ might have been at sentencing. Instead, he must show the violation of a specific prosecutorial promise that induced his plea. See State v. Bond, 139 Wis. 2d 179, 187-88, 407 N.W.2d 277 (Ct. App. 1987). In this case, Parker must show that during plea negotiations the prosecutor promised Parker he would serve his sentence in Wisconsin. Here, there is no proof whatsoever that the prosecutor or court promised Parker he would serve his sentence in Wisconsin. Therefore, we conclude that Parker has failed to prove by clear and convincing evidence that a material and substantial breach of the agreement occurred. State ex rel. Warren, 219 Wis. 2d at 643.
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by admin
on February 13, 2001
State v. Shomari L. Robinson, 2001 WI App 127, PFR filed 5/7/01
For Robinson: Joseph L. Sommers
Issue: Whether the plea bargain was breached when the defendant wasn’t allowed to present certain evidence at sentencing.
Holding:
¶16 … (T)he trial court did not clearly err in finding that the plea agreement called for argument by the parties, and at most, a very limited presentation of evidence at sentencing regarding the nature of the sexual assault.
¶17. Given that the parties’ agreement called for the right to argue and to present limited evidence at sentencing regarding the nature of the sexual assault, we conclude, as did the trial court, that the agreement was not breached. Robinson gave his version of what occurred on the night in question, and his counsel argued at length as to why his client’s statement was more credible than the victim’s preliminary hearing testimony. Although the court specifically declined to view the car proffered at sentencing, it did not deny Robinson the opportunity to present evidence other than that relating to the condition of the proffered car. In fact, the court specifically offered to consider testimony from any persons who were present in the schoolyard at the time of the assault.
Court stresses, ¶18, that agreement didn’t allow defendant to introduce “any and all evidence he wished at sentencing, regardless of its relevance and probative value”; and, in any event, “an agreement could not supplant the court’s exercise of discretion in setting the permissible bounds of the sentencing hearing[.]”
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by admin
on February 13, 2001
State v. Garren G. Gribble, 2001 WI App 227, PFR filed
For Gribble: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether evidence of prior child abuse, both to the immediate victim and another child, was properly admitted in a trial on homicide of a child.
Holding: There was sufficient evidence for a reasonable jury to find by a preponderance of the evidence that the defendant committed the various prior acts. ¶¶41-47. The evidence of abuse to the other child was sufficiently similar and close in time to support admissibility. ¶¶48-52.
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by admin
on February 13, 2001
State v. Joseph F. Rizzo, 2001 WI App 57, 241 Wis. 2d 241, 624 N.W.2d 824, reversed and remanded on other grounds, 2002 WI 20
For Rizzo: Franklyn M. Gimbel
Issue: Whether admission of other acts evidence was an erroneous exercise of discretion.
Holding:
¶5 … In a written decision, the trial court properly applied the Sullivan three-step analysis:
The acts which took place some years ago are remarkably similar to the allegations before the Court in this case … [and the] evidence does tend to make the consequential fact or proposition more probable than it would be without it. It further can be relevant if used in regard to credibility of the child witness.
Finally, as to the probative value, the Court does not believe it is outweighed by undue prejudice, confusion of issues, or misleading of the jury or by considerations of undue delay waste of time or needless presentation of cumulative evidence.
While these other acts may be chronologically old, they are very similar in nature.
The trial court did not err in deciding that [t]he probative value in this case outweighs the danger of unfair prejudice. We hold that the trial court properly exercised its discretion in admitting the other acts evidence.
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