STATE v. WILLIAMS

¶ 15. SNYDER, J. (concurring).

The dissent begins by acknowledging that a prosecutor has a duty to honor a plea agreement. It then notes that when a prosecutor has a duty to convey relevant information to the sentencing court, such a duty must be balanced against the duty to honor a plea agreement. The dissent concedes that this is a "close case" and that the prosecutor must walk a "fine line" in balancing the two duties, s ee State v. Hanson , 232 Wis.2d 291, 302, 606 N.W.2d 278 (Ct.App. 1999), review denied, 234 Wis.2d 177, 612 N.W.2d 733 (Wis. Apr. 26, 2000) (No. 99-0120-CR), and then worries that the majority opinion will frustrate a prosecutor's duty to convey relevant information to the sentencing court about the crime, the victim or other factors bearing on the sentence simply because the information is unfavorable to the defendant. The dissent's worry is misplaced.

¶ 16. This case is not about unfavorable information being withheld from the sentencing court. This case is about the sentencing court sustaining John D. Williams's objection to the prosecutor's breach of duty to honor the plea agreement, and the later excusal of that breach because the postconviction court determined that the prosecutor did not intend to breach the agreement. The record is silent as to the need for or any concern about a "relevant sentencing information balancing" test.

¶ 17. Much is made here of whether Hanson , State v. Ferguson , 166 Wis.2d 317, 479 N.W.2d 241 (Ct.App. 1991), or State v. Poole , 131 Wis.2d 359, 389 N.W.2d 40 (Ct.App. 1986), are informative or provide guidance in this case. I conclude that none of those cases are so factually or procedurally similar to this case that they can provide assistance in resolving the appellate issue raised by the record events herein established. In general, it is fair to say that Wisconsin law concerning what constitutes a plea agreement breach entitling a defendant to relief is in disarray.

¶ 18. The relevant record events are undisputed. On March 16, 1999, the plea agreement calling for a probation/jail time recommendation was placed upon the record by the State, and Williams entered a plea of guilty. The trial court then ordered a presentence investigation report (PSI) on its own motion. Corrections Agent Sue Zernzack prepared and filed her PSI on May 27, 1999, opining that county jail confinement would not have a satisfactory impact on Williams and that only a prison setting would provide the necessary structure, and recommending a medium term of incarceration. The prosecutor, Sandy A. Williams, apparently troubled by the PSI contents and its prison recommendation, told the sentencing court that her office had then met with a victim witness, Roberta Valerius, who attended the sentencing hearing and addressed the court. The prosecutor stated that her office met with Zernzack on June 8, 1999, and that Zernzack provided opinions and comments extraneous to, but in support of, the PSI and "reiterated . . . that it was [Zernzack's] belief that [Williams] needs to go to prison." The sentencing hearing occurred on June 30, 1999.

¶ 19. During the sentencing proceeding, the prosecutor solicited an affirmation from Valerius that Valerius was a good mother and that Williams was a bad father. In addition, the prosecutor related information allegedly obtained from the PSI author that emphasized and further supported the PSI prison recommendation. Williams's defense counsel objected to the prosecutor's comments as breaching the plea agreement and the following exchange occurred:

[DEFENSE ATTORNEY]: Judge, I am just going to object here. The state seems to be undercutting its recommendation to the Court by relaying things that are not the state's position, they are an agent's position. [Agent Zernzach's] comments are in the P.S.I. And I have at a certain point . . . to object. But it seems to me that the state is in essence . . . undermining the recommendation that was put out and which Mr. Williams entered a plea. So I guess I am just calling raising an objection here and seeing where we are going with this. Because it seems to me that obviously the state can make its argument, but I think if it gets to the point where the state is basically saying we want to change our recommendation, or we think the Court should without saying so, I think that's certainly something that is a problem.

THE COURT: I agree.

¶ 20. At that point the prosecutor related that "if I indicated anything other than what our recommendation is" that the court could look at the PSI itself, that she was just relaying information that Zernzach had provided the prosecution after the PSI was filed, and that she was merely relating "information that has come to light since the presentence was filed." The trial court, apparently unimpressed with the State's suggestion that it was only exercising its duty to provide relevant sentencing information, did not address the prosecutor's response and did not perform a relevant sentencing information balancing exercise or otherwise respond to the prosecutor's remarks. The defense's breach objection remained sustained in the sentencing hearing record.

¶ 21. The court did, however, revisit its plea agreement breach ruling at the postconviction hearing, where it concluded that "taken in that context when [the prosecutor] goes on to explain it, it's clear that [the prosecutor] wasn't advocating a change in the recommendation. That was not her intent." (Emphasis added.) The postconviction court did not address, or apparently see any compelling need to address, the relevant sentencing information balancing test. The postconviction court denied sentence relief to Williams on the basis that the plea agreement breach was not a breach because the prosecution did not intend to breach. That holding lacks support in the law and is erroneous.

¶ 22. Williams has a constitutional right to the enforcement of a negotiated plea agreement, see State v. Smith , 207 Wis.2d 258, 271, 558 N.W.2d 379 (1997), and "[t]he state may not accomplish `through indirect means what it promised not to do directly,' i.e., convey a message to the trial court that a defendant's actions warrant a more severe sentence than that recommended." Ferguson 166 Wis.2d at 322. The Poole , Hanson and Ferguson decisions do not address judicial excusal of a previously acknowledged prosecution plea agreement breach, unintended or otherwise. The State does not cite to any case that supports the proposition that a breach may be cured by a lack of intent on the part of the violating party. I am satisfied that no such case law exists. If prosecutors desire to avoid the dissent's proverbial "potted plant" model, they can do so by not negotiating pleas and entering into plea agreements that they then must honor.

¶ 23. The confusion attending plea agreement violations in Wisconsin is evident in the postconviction testimony of Williams's trial counsel. In response to a question about his decision to object to the prosecutor's comments as violating the plea agreement, Williams's attorney, Wilfred P. de Junco, a seasoned and capable defense counsel, responded that he was not sure at the time of the objection if there had been a breach of the plea agreement, but that he "thought it was safer to raise an objection and to try to clarify the issue." The trial court, however, was sure of the breach and responded accordingly. The trial court never changed its ruling that a breach occurred at sentencing, but concluded postconviction that the breach was excused because it was not intended by the prosecutor. The record is silent as to the propriety of or need for the sentencing information balancing test urged by the dissent. The ongoing confusion concerning the breach of Wisconsin plea agreements is further highlighted by this district's issuance of an unusual, three-legged opinion.

¶ 24. While I have some sympathy with the dissent's concern about the continued integrity of the plea bargaining process, I disagree that the facts in this case can result in an unwarranted sentencing "clam up" restriction. The prosecutor not only has a right but a duty to provide information to the sentencing court. Moreover, there is nothing wrong with the prosecutor providing his or her opinion of the defendant's character, even if negative, to the sentencing court so long as the opinion is used to support the recommendation. See Ferguson , 166 Wis.2d at 325 (recognizing prosecutor's task to attempt to convince the court of the appropriateness of the recommendation). But it makes no sense to allow the prosecutor to render an opinion that appears to argue against his or her own negotiated recommendation. Here, in the majority view, the prosecutor did just that. The prosecutor's remarks cannot be interpreted to support a recommendation for probation with sixty days in jail.

¶ 25. The majority opinion correctly concludes that a case involving a prosecution plea agreement violation should favor the defendant. That result is not unreasonable given the benefit derived by the State in obtaining a defendant's waiver of constitutional rights, a conviction without trial, its knowledge and understanding of the agreement it negotiated, and its duty to honor that agreement. Given the constitutional protections that a defendant surrenders to obtain such an agreement, and the lack of legal certainty in Wisconsin as to when the duty to honor a plea agreement is violated, each case must be addressed on its own merits and a defendant should be entitled to the benefit of his or her bargain.

¶ 26. I respectfully concur that Williams is entitled to a resentencing with the full benefit of the plea agreement that he bargained for and from which he expected to benefit.

¶ 27. NETTESHEIM, J. (dissenting).

The majority opinion reduces the prosecutor to the proverbial "potted plant" at a sentencing hearing under this kind of plea agreement. For that reason, I respectfully dissent.

¶ 28. As the majority concedes, the law permits a prosecutor in this kind of setting to convey information to the sentencing court which is unfavorable to a defendant so long as the prosecutor abides by the plea agreement. See State v. Hanson , 232 Wis.2d 291, 302, 606 N.W.2d 278 (Ct.App. 1999), review denied, 234 Wis.2d 177, 612 N.W.2d 733 (Wis. Apr. 26, 200) (No. 99-0120-CR). I contend that the prosecutor's sentencing statements represented a proper balance between her duty to honor the plea agreement and her duty to convey relevant information to the sentencing court. Therefore, I disagree with the majority's holding that the prosecutor's sentencing statements violated the terms of the plea agreement.

¶ 29. Hanson is informative to this case both on its law and on its facts. In Hanson , the plea agreement required the State to cap its sentencing recommendation at ten years. See id . at 293. In the course of her sentencing remarks, the prosecutor stated that the State was standing by the plea agreement. However, the prosecutor then added:

Having said that, this is an extremely violent case. This is an individual who constitutes a clear and present danger, not only to the two women who have been in intimate relationships with the Defendant, but also to the community at large. I urge the Court to consider all of the information that has been presented to the Court, in fashioning a sentence that is both fair to the Defendant and to the victim.

¶ 30. In assessing whether these statements constituted a breach of the plea agreement, we looked to the entire sentencing proceeding to get "the true flavor" of the prosecutor's remarks. We held that the prosecutor's "[h]aving said that" remark, followed by her negative impressions regarding the defendant, did not breach the plea agreement. See id . at 303. In conducting that exercise, we harmonized the concomitant duties of the prosecutor to abide by the plea agreement and to present relevant sentencing information to the court even if the information is unfavorable to the defendant. See id . at 301-02.

¶ 31. State v. Ferguson , 166 Wis.2d 317, 479 N.W.2d 241 (Ct.App. 1991), is also informative. There, the State promised to argue for an imposed and stayed sentence. At the sentencing when arguing for a substantial sentence, the prosecutor spoke at some length about the severity of the offense, using terms such as "perverted," "worst of all crimes," "the sickest case that I have seen," and referring to the defendant as "sleaze." See id . at 319-20. Only after these highly charged comments did the prosecutor recite the State's request for an imposed and stayed sentence. The defendant argued that the prosecutor's inflammatory language violated the plea agreement. See id . at 321. The court of appeals disagreed:

The plea agreement in this case did not prohibit the state from informing the trial court of aggravating sentencing factors. Nor could it. At sentencing, pertinent factors relating to the defendant's character and behavioral pattern cannot "be immunized by a plea agreement between the defendant and the state." Elias v. State , 93 Wis.2d 278, 285, 286 N.W.2d 559, 562 (1980). A plea agreement which does not allow the sentencing court to be apprised of relevant information is void as against public policy. State v. McQuay , 154 Wis.2d 116, 125-26, 452 N.W.2d 377, 381 (1990) (quoting Grant v. State , 73 Wis.2d 441, 448, 243 N.W.2d 186, 190 (1976), writ of habeas corpus granted, 450 F. Supp. 575 (E.D.Wis. 1978).

¶ 32. Here, the very first words spoken by the prosecutor were an accurate and complete recital of the plea agreement followed by the State's sentencing recommendation which was in accord with the agreement:

Judge, I believe that when Mr. Williams entered his plea that we had told the Court that we would be recommending a presentence investigation. And that we would be recommending that sentence be withheld for a period of three years-I am sorry, that he be placed on probation for a period of three years, that he pay arrearages and pay current child support. And then as a condition of the probation he be incarcerated in the county jail for a period of 60 days.

¶ 33. Later, after the prosecutor had made her other sentencing comments about Williams, she concluded her remarks, stating:

[W]e are standing by our recommendation, and I have not changed that, and that's why I started off by saying we were recommending the three years probation. We had placed that on the record when the defendant entered his plea, and again today at sentencing.

¶ 34. This case is stronger on its facts than Hanson or Ferguson . Unlike Hanson , where the prosecutor's sentencing recommendation was immediately followed by the qualifying phrase, "[h]aving said that," here the prosecutor's subsequent statement was not introduced with any qualifying language suggesting sub silentio that the prosecutor was no longer adhering to the plea agreement. And unlike Ferguson , where the prosecutor's sentencing recommendation did not come until after the prosecutor had spoken about the depravity of the defendant's conduct, here the prosecutor set out the State's compliance with the plea agreement in explicit and unambiguous terms at the very outset of the proceeding and then reaffirmed it at the conclusion of her remarks.

¶ 35. This case is not governed by State v . Poole , 131 Wis.2d 359, 389 N.W.2d 40 (Ct.App. 1986). There, new information about the defendant came to light after the plea and before sentencing. The prosecutor said her recommendation was made "before we knew of the other instances. But that is our agreement." Id . at 360. The court held that the "state's use of qualified or negative language in making the sentence recommendation" breached the agreement. Id . at 364. As I have noted, the prosecutor's recital of her sentencing recommendation in this case was not couched in qualifying terms. It is also important to note that Poole does not bar the State from using negative information that has come to light after the plea and before the sentencing. Rather, the impropriety lies in the prosecutor's recital of the sentencing recommendation accompanied by the simultaneous recital of qualifying or negative language by which the State distanced itself from its own agreement. See id .

¶ 36. Here, the prosecutor twice confirmed the plea agreement without accompanying qualifying language suggesting that it did not mean what it said. And since the law allows a prosecutor to convey relevant negative information about a defendant under such a plea agreement, I conclude that the prosecutor's sentencing statement represented the "neutral recitation" required by the law. See id . at 362. The trial court also saw it that way in its postconviction ruling. I would uphold the court's ruling.

¶ 37. However, my misgivings about the majority opinion go deeper than my disagreement with the result. A sentencing constitutes a critical phase of a criminal proceeding. See State v. Anderson , 222 Wis.2d 403, 411, 588 N.W.2d 75 (Ct.App. 1998). A prosecutor is an officer of the court and holds a "quasi-judicial" office. See State v. Neuser , 191 Wis.2d 131, 139, 528 N.W.2d 49 (Ct.App. 1995). Agreements by prosecutors not to reveal relevant information to the sentencing judge are against public policy and cannot be respected by the courts. See Grant v. State , 73 Wis.2d 441, 448, 243 N.W.2d 186 (1976), writ of habeas corpus granted, 450 F. Supp. 575 (E.D.Wis. 1978). At sentencing, pertinent factors relating to the defendant's character and behavioral pattern cannot be immunized by a plea agreement between the defendant and the State. See Elias v. State , 93 Wis.2d 278, 285, 286 N.W.2d 559 (1980).

¶ 38. The majority opinion runs afoul of these principles. Until today, plea agreements of this type did not violate public policy because they did not "silence" a prosecutor. But under the majority's interpretation, and particularly under its "close case goes to the defendant" rule, prosecutors are now schooled to remain silent if they have relevant sentencing information that is unfavorable to the defendant. Or, if they choose to speak, they risk violation of the "close case" rule. I see no need for the majority's adoption of the "close case" rule. The cases to date (whether close or not) have addressed each situation on its own facts and its own merits. That approach has served the law well, and I see no need to change it.

¶ 39. Also until today, prosecutors were entitled to offer their unfavorable personal opinions or impressions regarding a defendant under this kind of plea agreement. But now, in this nonsupport case, the majority makes the startling conclusion that it was somehow improper for the prosecutor to state that Williams, by his manipulative and irresponsible conduct, had intentionally failed to support his child or to establish any kind of relationship with her. I conclude that it was self-evidently proper for the prosecutor to speak to these failures on Williams's part and to label them "disheartening and saddening."

¶ 40. But the majority holds that these statements were improper because they implied a "personal recommendation" as to the proper sentence. See majority at ¶ 8. As with the majority's "close case" rule, the majority's bar against the prosecutor's opinion or impression of a defendant is inconsistent with current law. Surely, the prosecutor's statements in Hanson that the crime was "extremely violent" and that the defendant represented "a clear and present danger" were her impressions or opinions. See Hanson , 232 Wis.2d at 296. The same must be said of the prosecutor's highly charged statements in Ferguson ("perverted," "sickest case" and calling the defendant "sleaze"). Ferguson , 166 Wis.2d at 319-20. And even in Poole where the court held that the prosecutor's remarks violated the plea agreement, the court did not say that a prosecutor could not venture a negative opinion or impression regarding a defendant. See Poole , 131 Wis.2d at 364.

¶ 41. This new prohibition fashioned by the majority will frustrate the flow of important and relevant information to a sentencing court about the defendant, the crime, the victim or other factors bearing on the sentence. That is not the current law, and it is not wise policy for future law.

¶ 42. I also disagree with the majority's condemnation of the prosecutor's remarks offered in support of the victim. Among other rights, article I, section 9m of the Wisconsin Constitution assures that a victim have "the opportunity to confer with the prosecution" and "the opportunity to make a statement to the court at disposition . . . ." Who more likely to represent a victim at a sentencing hearing and to make a statement on the victim's behalf than the prosecutor? Moreover, a victim is not bound by a plea agreement and is entitled to seek a disposition different than that agreed to between the parties. Here the prosecutor clearly indicated in this phase of her remarks that she was speaking to the victim's position, not to the State's obligation under the plea agreement.

¶ 43. The majority also seems to say that because the victim was present and spoke for herself, the prosecutor was off limits in speaking for her. But I see nothing in the constitutional or statutory provisions covering victim rights which bars such procedure. Moreover, in many cases, the victim may be unable to deliver an articulate statement because of nervousness, fear or intimidation. Putting aside the victim's constitutional and statutory rights, commonsense dictates that the prosecutor should be allowed to speak for the victim under all circumstances.

¶ 44. Finally, the majority opinion deals a setback to the plea bargaining process. The majority opinion requires the prosecutor to either "clam up" at the sentencing hearing or risk violation of the "close case" rule if information unfavorable to a defendant is divulged. Faced with that Hobson's choice, prosecutors will understandably be reluctant to enter into these kinds of plea agreements in the first instance. This is unfortunate because all concerned-the prosecution, the courts, and, most importantly, defendants-will lose the benefits of this process.

¶ 45. I have no particular quarrel with calling this case a "close case." I believe we said as much in Hanson when we observed that a prosecutor walks a "fine line" under this kind of plea agreement when conveying unfavorable sentencing information about a defendant. See Hanson , 232 Wis.2d at 302. But I do not agree that a "close case" should translate into an automatic holding that such statements constitute a breach of the plea agreement.

¶ 46. For these reasons, I respectfully dissent.