In an unpublished opinion written by Wisconsin Court of Appeals Judge Richard Brown, the court rejected the defendant’s argument that, because he had already begun to serve probation, the remedy would violate the Double Jeopardy Clause.
James Stoner III was initially charged with felony possession of THC with intent to deliver and, later, felony bail jumping. He entered a plea agreement under which he would plead guilty to two misdemeanor THC possession charges and misdemeanor bail jumping.
Under the agreement, the sentence would be withheld and he would be placed on probation, with a provision that if he does not successfully complete it, the pleas would be vacated and Stoner would enter a guilty plea to one of the felony charges.
Stoner violated his probation and the trial court struck the agreement as illegal, reinstating the original information with the felonies pending.
Stoner appealed, but the Court of Appeals affirmed on Sept. 22.
It was not disputed that the agreement was illegal. In State v. Hayes, 167 Wis.2d 423, 481 N.W.2d 699 (Ct.App.1992), the Court of Appeals upheld a trial court’s refusal to include in the sentence a negotiated provision that if the defendant completed his probation, the case would be reopened, with a misdemeanor substituted for his felony conviction.
Similarly, in State v. Dawson, 2004 WI App 173, 276 Wis.2d 418, 688 N.W.2d 12, the defendant pleaded no contest to first-degree sexual assault of a child. The plea agreement contained a provision that, if he completed probation, the case would be reopened and reduced to a lesser charge of physical abuse of a child.
The Court of Appeals held that reopen-and-amend agreements are illegal and therefore, the defendant must be allowed to withdraw his no contest plea after the sentencing court failed to include the provision in the sentence.
The case at bar involved the opposite side of the coin. In Hayes and Dawson, the defendant pleaded to more severe offenses, with the expectation that the charge would be reduced after completing probation.
In Stoner’s case, he pleaded to misdemeanors, with the understanding that the conviction would be increased to a felony if he failed to complete probation.
The court and the parties agreed that the plea agreement was illegal pursuant to Hayes and Dawson, but disagreed abut the remedy.
Before the trial court, the State had sought to enforce the original agreement; but before the appeals court, it acknowledged it could not, and instead sought affirmance of the trial court’s remedy – vacating the pleas and reinstating the original information.
Stoner asked for severance of the illegal provision with sentencing to proceed on the misdemeanors.
The Court of Appeals agreed with the State, concluding that because the plea agreement was unenforceable, it could not be knowing and voluntary.
Judge Brown wrote, “Just because the plea agreement leads a defendant to believe that a material advantage or right inuring to the State has been reserved when in fact it cannot be legally obtained, does not mean that the defendant nonetheless made a knowing and voluntary plea as it pertains to him alone.”
“The global plea, consisting of the total give-and-take of the parties, cannot be parsed out into sections so that Stoner can take but not have to give,” Brown explained. “If part of the give-and-take goes down in flames, the whole global agreement goes down with it.”
Brown also rejected Stoner’s argument that the court’s remedy violates double jeopardy.
Because he had already been on probation, a “substantial restriction of freedom,” he argued that reinstatement of the original charges would subject him to jeopardy twice for the same offenses.
The court acknowledged that, in State v. Dean, 111 Wis.2d 361, 330 N.W.2d 630 (Ct.App.1983), it held that probation is a form of punishment, and that a sentence can’t be reimposed on a defendant absent a violation of probation.
But Stoner did violate his probation. The court noted, “If he had successfully completed his probation, he would have gained the advantage of a permanent shield from exposure to the two felony counts that were reduced to misdemeanors.”
But, had the provision not been illegal, Stoner would have had to plead guilty to a felony. Thus, the court found that Stoner could not reasonably have expected the result he now sought.
David Ziemer can be reached at firstname.lastname@example.org
What the court held
Issues: Where a plea agreement is illegal, does it violate double jeopardy to vacate the sentence and conviction, and reinstate the original information?
Holdings: No. Where a plea agreement is legally unenforceable, a subsequent sentencing that increases the sentence does not violate double jeopardy.
Attorneys: For Plaintiff: Gregory M. Weber, Madison; For Defendant: Joshua Davis Uller, Milwaukee