00-2129 State v. Richardson

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“After reviewing the written arguments of both parties and the record itself, the sentencing court made the following findings of fact. At the time of sentencing, the contents of the criminal complaint and pre-sentence report could have justified a multi-count charge against Richardson. The court ‘gleaned this for itself.’ From its review of the record, the court knew the facts surrounding the offense and would have considered the totality of the facts ‘with or without the prosecutor’s comment regarding the potential for a multiple count information.’

“The court found that the State was not precluded by the agreement from setting forth its honest opinion of the nature of the offense. It found that the prosecutor’s appraisal of the case was supported by a list of ten aggravating factorsmost of which were already known to the courtand five mitigating factors. It further found that the prosecutor did not deviate from the terms of its plea agreement. The prosecutor did not make a specific recommendation, but left the amount of time to be served entirely up to the court. …

“Further, the court found that the plea agreement did not prohibit the prosecutor from ‘setting forth its honest opinion of the nature of the offense, i.e. that it was one of the most serious armed robberies it had dealt with.’ The plea agreement indicated the State would not make a specific recommendation. The State did not. The comments that Richardson refers to as attempting an ‘end-run’ around the agreement, taken in context, provided the trial court with relevant information, which cannot be immunized by a plea agreement or bargained away.”

Judgment and order affirmed

Recommended for publication in the official reports.

DISSENTING OPINION: Schudson, J. “Unquestionably, such [prosecutor] comments urged the judge to order a sentence at or near the maximum end of the statutory range. And actually, on this point, there really is little if any dispute. After all, the prosecutor, quite understandably (given his view that the agreement did not limit his ability to ‘present arguments supporting a lengthy prison term’), offered extensive comments to guide what he considered an inexperienced judge toward a lengthy period of incarceration…. The integrity of the plea agreement/sentencing process is essential to justice-for both defendants and the State. Preserving that integrity requires re-sentencing where, as here, the record reveals, at the very least, the substantial likelihood of a breach. Accordingly, I respectfully dissent.”

Dist I, Milwaukee County, Gordon, J., Wedemeyer, P.J.

Attorneys:

For Appellant: Richard D. Martin, Milwaukee

For Respondent: Robert D. Donohoo, Milwaukee, et al.