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Equitable estoppel barred in criminal cases

Michael Hoover

Michael Hoover

Unless there is an explicit agreement, a defendant’s guilty plea does not prevent the State from filing different charges based on the same course of conduct.

On Tuesday, the Wisconsin Court of Appeals held that equitable estoppel can never be invoked to preclude prosecution of a criminal charge, reversing the dismissal of a sexual assault complaint.

Judge Michael Hoover wrote for the court, “the public interest would be unduly harmed if the State were equitably estopped from prosecuting criminal charges. There is a compelling societal interest in convicting and punishing criminal offenders.”

James M. Drown was charged with a litany of offenses after he abducted Jennifer B. from her residence in Shawano County in 2008. On Jan. 12, 2009, he was convicted and sentenced for false imprisonment and disorderly conduct, with the rest of the charges dismissed and read in.

But on Feb. 26, 2009, Drown was charged with second-degree sexual assault by use of force in Oconto County. The State alleged that, during the abduction, Drown drove Jennifer to Oconto County, where he sexually assaulted her.

Drown moved to dismiss the case, and the circuit court agreed that the State was equitably estopped from prosecuting the charge. The Court of Appeals reversed.

Drown argued that he reasonably relied on the State’s not having charged him with that offense when he entered the guilty pleas in Shawano County. He also argued his reliance was to his detriment, because the false imprisonment conviction effectively conceded an element in the sexual assault case — use of force.

But the court held that equitable estoppel cannot be invoked in criminal cases.

The court noted that no Wisconsin case has ever allowed its invocation in such a case, and case law from other jurisdictions uniformly does not allow it.

The court explained, “On balance, the public interests at stake will always outweigh any potential injustice to a criminal defendant where he or she seeks to evade prosecution via equitable estoppel.”

The court further found equitable estoppel inappropriate, because defendants have various due process protections to prevent unjust prosecutions.

First, the court noted the statute of limitations.

Second, even where the statute of limitations has not run, prosecution may be barred because of prosecutorial delay, if the delay arose from an improper motive, and the defendant suffers actual prejudice from the delay.

Finally, the court found that defendants can prevent such prosecutions by entering into universal plea agreements that specifically foreclose subsequent prosecution.

Analysis

Although the court seems to have reached the correct result, the opinion contains troublesome dicta.

Before concluding, the court said even if equitable estoppel could preclude a criminal prosecution, Drown’s reliance would be unreasonable as a matter of law.

The court wrote, “Given Drown’s argument, failure to assert ignorance, and failure to raise an ineffective assistance of counsel claim, it is apparent he was aware that the Oconto County prosecutor retained the legal right to prosecute Drown at any time prior to the expiration of the six-year statute of limitations.

“Drown’s decision to proceed with a plea to the Shawano County charges alone, rather than address the possible sexual assault charges, was strategic — by his own admission. That Drown knowingly gambled and then lost would not somehow constitute a valid reason to shield him from prosecution for the alleged sexual assault.”

In a footnote, the court added, “In his motion to dismiss, Drown asserted that the defense strategy in the Shawano County case ‘was devised and executed in reliance on … Drown’s then-current situation, in which no sexual assault was charged,’ and that ‘(n)o competent counsel would have allowed … Drown to plead guilty to false imprisonment in the Shawano case knowing the charge in this case was to follow as a separate prosecution.'”

The trouble with the court’s assessment is it is wholly consistent with Drown subjectively believing that, by pleading guilty to false imprisonment and disorderly conduct, he was avoiding prosecution for any sexual assault. The question thus is whether that subjective belief was objectively reasonable.

But nothing in the paragraph demonstrates that it was not. On the contrary, such universal plea deals are struck every day in Wisconsin courts; the only difference here appears to be that it wasn’t put on the record that any sexual assault prosecution was barred.

A criminal defense attorney should know that the sexual assault has to be read in, or otherwise dealt with explicitly. But the average criminal defendant would not know that. Equitable estoppel is concerned with whether the “party” reasonably relied on his opponent’s actions, not whether his attorney did.

Furthermore, that the decision was “strategic” does not make it a “gamble;” all plea agreements are strategic, but they are generally considered the opposite of gambling.

Similarly, the fact that Drown did not allege ineffective assistance of counsel may simply be a strategic choice by appellate counsel, without suggesting anything about what Drown was thinking when he entered his pleas.

In addition, there would be no reason to make an ineffective assistance of counsel claim. Drown is not challenging what happened in the Shawano County proceedings, but only the decision to charge him in Oconto County.

The court also found that any reliance by Drown was unreasonable because only six months had passed between the crime and sentencing, while the statute of limitations is six years.

But in almost all cases, there is still plenty of time left on the statute of limitations. Assuming that Drown subjectively believed he was entering a plea agreement that resolved the whole matter, the existence of this particular fact doesn’t render that assumption objectively unreasonable.

Admittedly, the entire discussion of reasonable reliance is only dicta concerning equitable estoppel, which the court rejected anyway.

However, the court’s reasoning could easily be imported into a due process analysis in a case on similar facts.

Suppose a defendant on identical facts alleges the sexual assault prosecution was deliberately delayed for the purpose of getting him to concede the use of force in the false imprisonment count.

The court’s dicta here could be used against that defendant verbatim to support a holding that the defendant was not prejudiced by the State’s delay, but rather by his own attempts to game the system.

It may be that Drown was gaming the system. But based on this record, it might have been just a botched plea agreement, or even deliberate delay in bringing charges. It would have been better had the court stopped after holding that equitable estoppel cannot apply in criminal cases, and refrained from speculating about Drown’s motivations.

Case: State of Wisconsin v. James M. Drown, No. 2010AP1303-CR

Issue: Can the doctrine of equitable estoppel be invoked to preclude prosecution of a criminal charge.

Holding: No. Public policy will always outweigh potential injustice to the criminal defendant.

Attorneys: For Plaintiff: Jeffrey J. Kassel, Madison; For Defendant: Shelley Fite, Madison.

Full text available at www.wislawjournal.com

David Ziemer can be reached at david.ziemer@wislawjournal.com

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