No breach where plea agreement was silent

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“If we allow the State to bargain for a recommendation of a specific sentence and then let the State unilaterally recommend a consecutive sentence over and above the sentence recommendation mutually assented to, we are permitting the State to change the rules of the game.” Hon. Richard S. Brown in dissent

The Wisconsin Court of Appeals held on March 9 that, when a plea agreement was silent on the issue of whether the State would recommend consecutive or concurrent sentences, the prosecutor’s request for consecutive time was not a breach of the agreement.

Richard L. Bowers was charged with operating a motor vehicle with a prohibited alcohol concentration and operating while intoxicated (5+). At the time, he was on probation for an OWI-5 conviction, for which sentence had been withheld.

Pursuant to a plea agreement, Bowers pleaded no contest to the operating a motor vehicle while intoxicated charge and the other counts were dismissed. The agreement provided that the State would recommend two years initial confinement and three years of extended supervision. The agreement was silent as to whether the sentence should be consecutive or concurrent to the sentence for OWI-5.

According to the opinion, at sentencing, however, the State incorrectly recommended two and one-half years of initial confinement and two and one-half years of extended supervision, consecutive to the OWI-5.

Bowers’ attorney objected to the misstatement of the agreement’s terms, and the State amended its recommendation as to the length of the sentence. However, his attorney did not object to the request that it be consecutive.

The court sentenced Bowers to three years initial confinement, and two years extended supervision.

Bowers moved for resentencing, claiming that the state’s initial recommendation materially and substantially breached the agreement, and that his attorney was ineffective for failing to object to the request for consecutive time.

Winnebago County circuit Court Judge Barbara H. Key denied the motion, and Bowers appealed. The court of appeals affirmed in a decision written by Judge Daniel P. Anderson and joined by Judge Harry G. Snyder. Judge Richard S. Brown dissented on the consecutive/concurrent issue.

The court agreed with the State that the first of the claimed breaches was not material and substantial, analogizing the case to that in State v. Knox, 213 Wis.2d 318, 570 N.W.2d 599 (Ct.App.1997).

In Knox, the prosecutor misstated the agreement by requesting consecutive, rather than concurrent, sentences. Re-cognizing the error, however, the prosecutor advised the court of the mistake, and recommended the concurrent sentence that had been bargained for.

The court in Knox held, "the deviation from the original terms drew a prompt objection and was shown to be the result of a mistake that was quickly acknowledged and rectified. Indeed, the prosecutor’s earnest manner in advocating the corrected proposed disposition, commented upon by the trial court, further circumstantially belies an implication of improper motive. For these reasons, the momentary and inadvertent misstatement of the parties’ agreement did not constitute an actionable breach." Knox, 213 Wis.2d at 322-23.

The court found the same conclusion applicable to Bowers’ case, reasoning, "when the mistake was brought to its attention, the State promptly and matter-of-factly corrected its recommendation to the agreed upon bifurcated sentence and in its sentencing remarks, the trial court recognized that the State was recommending ‘two years’ of initial incarceration as part of the plea agreement. The perceived breach was not an attempt to qualify or undercut the substance of the plea agreement; rather, it was simply an inadvertent misstatement that was acknowledged and rectified shortly thereafter. We therefore hold that the State did not materially and substantially breach the plea agreement when it misspoke as to the length of initial incarceration."

The court also held that, because the plea agreement contained no provision requiring it to either remain silent on the issue or recommend concurrent sentences, it was free to recommend consecutive sentences.

The court acknowledged that the issue of concurrent and consecutive sentences is "extremely important" to a guilty plea, but wrote, "in the absence of any indication that the parties expected the State to either remain silent or recommend concurrent sentences, we are reluctant to engraft these conditions into a fully integrated plea agreement."

In the absence of any Wisconsin cases addressing the question, the court cited cases from other jurisdictions for support: United States v. Peglera, 33 F.3d 412 (4th Cir. 1994); United
States v. Fentress, 792 F.2d 461 (4th Cir.1986); White v. United States, 308 F.3d 927, 929 (8th Cir. 2002); and Doles v. State, 55 P.3d 29, 34 (Wyo. 2002).

Quoting Fentress, the court iterated, "While the government must be held to the promises it made, it will not be bound to those it did not make. To do otherwise is to strip the bargaining process itself of meaning and content." Fentress, 792 F.2d at 464-65.

The court also found support from a Wisconsin case addressing a related issue, State v. Zanelli, 212 Wis. 2d 358, 569 N.W.2d 301 (Ct. App. 1997). In Zanelli, the defendant argued that the State violated a plea agreement by filing a Chapter 980 petition for commitment as a sexually violent person.

The court in Zanelli found no breach of the agreement, because the plea agreement was silent regarding future ch. 980 proceedings. Extending the reasoning in Zanelli to the case at bar, the court concluded, "This analytical framework applies with equal force to this case. Here, the agreement was silent regarding the issue of concurrent and consecutive sentences; thus, the record does not reflect that Bowers bargained for the State’s promise to refrain from asking for consecutive sentences."

Accordingly, the court affirmed, holding that the state’s recommendation did not breach the agreement, and therefore, Bowers’ counsel was not deficient in failing to object.

The Dissent

Judge Brown concurred in the holding that the inadvertent misstatement of the plea’s terms was not a material breach of the agreement, but dissented from the holding that the request for a consecutive sentence was not a breach.

Brown wrote, "With the very real prospect of spending time in prison as a result of his probation revocation looming on the horizon, Bowers agreed to change his plea in return for a specific recommendation by the State on his most recent violation. The State would recommend two years of initial confinement with three years extended supervision, and the defense would be free to argue. That is all. It was, on its face, an unambiguous recommendation by the State.

"So what did the State do here? In open court, it voiced a recommendation beyond what it had agreed to recommend. It voiced to the trial court a further recommendation that the sentence be served consecutively to the probation revocation. In my mind, the State went beyond what it had agreed to recommend. The State’s real recommendation was that Bowers do two years in confinement after serving the two and one-half years ordered by the circuit court in the OWI-5th case. I am satisfied that this voicing of an additional recommendation was a breach of the plea agreement. I am also satisfied that Bowers’ trial counsel was ineffective for failing to object (emphases in original)."

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Replying to the majority’s reliance on contract principles, Brown responded, "But a major tenet of contract law is that the mutuality of assent underlies an en-forceable contract. In plea bargaining terms, there must be a promissory ex-change and the promise of certain benefits, including the exact penal promises, in return for a defendant’s promise to enter a guilty or no contest plea. If we allow the State to bargain for a recommendation of a specific sentence and then let the State unilaterally recommend a consecutive sentence over and above the sentence recommendation mutually assented to, we are permitting the State to change the rules of the game."

Rejecting the rationale of case from other jurisdictions, Brown found persuasive the Supreme Court’s language in State v. Deilke, 2004 WI 104, par 19, n.7, 274 Wis. 2d 595, 682 N.W.2d 495, that, "[B]reaches of provisions that were not explicitly stated in plea agreements have been held to be material and substantial breaches."

Brown added, "The clear import of the supreme court’s language was to unequivocally reject the notion that all terms not expressly articulated are also unnegotiated. I do not see how the majority can say the defendant has not negotiated a term as basic as, ‘when do I get out of prison,’ when the parties have agreed on the specific sentence to be recommended."

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David Ziemer can be reached by email.