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02-0156-CR State v. Krawczyk

By: dmc-admin//December 23, 2002//

02-0156-CR State v. Krawczyk

By: dmc-admin//December 23, 2002//

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“We conclude that Krawczyk’s plea to both felony murder and the underlying armed robbery, the latter conviction having been set aside, does not provide a basis for withdrawal of his plea to felony murder. First and foremost, the record is devoid of any evidence establishing that Krawczyk would not have pled guilty to felony murder (and to the other two offenses of which he remains convicted) had he known of the multiplicity of the felony murder and armed robbery charges. Krawczyk’s failure to testify that he would not have pled guilty to felony murder had he known of the multiplicity is not a minor omission. Had he so testified, he would have been subject to cross-examination on the point, and the State might have seen fit to present rebuttal testimony from Krawczyk’s trial counsel.

Moreover, the failure to testify in this regard deprives us of the trial court’s assessment of the credibility of a claim by Krawczyk that he would not have pled guilty to felony murder had he known of the double jeopardy violation.

“[W]e observe that setting aside the remaining convictions and sentences and restoring the parties to their pre-plea positions is not necessary to further the State’s interests. As we have noted, the State is not requesting such a disposition. It is apparently satisfied that leaving intact the seventy-one-year total sentence on the remaining charges does not substantially deprive it of the benefit of the plea agreement it made with Krawczyk. See Robinson, 2002 WI 9 at ¶¶47, 52. A restoration of the single dismissed charge would increase Krawczyk’s exposure to imprisonment by only eight years, which is not a significant period in relation to the 131 years he faced on the remaining, unreversed charges to which he pled guilty.

Accordingly, unlike in Robinson, there appears to be no need to vacate all remaining sentences and convictions in order to remedy a breach of the plea agreement. See id.”

Dist II, Walworth County, Carlson, J., Deininger, J.

Attorneys:

For Appellant: John T. Wasielewski, Milwaukee

For Respondent: David J. Becker, Madison; Phillip A. Koss, Elkhorn

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