A well-presented Court of Appeals case affirmed that when the defendant breaches a plea agreement prior to sentencing, the state may change its side of the agreement.
Habitual criminal Carl Reed was charged with substantial battery, first degree-reckless endangerment, misdemeanor theft and misdemeanor bail jumping.
Reed and the state entered into a plea agreement whereby Reed would plead to the substantial battery and the other three charges would be dismissed but read in – considered – at sentencing. The state agreed to make no specific sentencing recommendation.
Reed also agreed that the state could withdraw from the agreement any time prior to sentencing if the defendant committed any new crimes.
Pursuant to the plea bargain, Reed pleaded no contest to the battery charge and upon his plea was convicted by Kenosha County Circuit Judge Anthony Milisauskas. Sentencing was put over for a few months.
In less than two months, Reed was charged with four new crimes: battery, operating a vehicle without owner’s consent, disorderly conduct/domestic abuse and operating a vehicle after license revocation.
At sentencing, the state indicated that Reed had breached the plea agreement by committing new crimes and so it did not intend to follow the plea agreement. Instead the state intended to make a specific sentencing recommendation.
Reed argued the new charges were just that, unproven charges, and therefore they could not yet be considered crimes. Thus Reed asserted that he had not violated the plea agreement.
Accordingly, he said, if the state made a sentencing recommendation in violation of the plea bargain, Reed would move to withdraw his plea.
The state replied that the charges violated the agreement because probable cause had been found on these charges after Reed waived his preliminary hearing.
Milisauskas ruled that Reed had violated the plea bargain. He thought it unreasonable to require that the charges become convictions in order for the promise not to commit new crimes to be enforceable. As a remedy for Reed’s breach he allowed the state to make a specific sentencing recommendation.
The state recommended three years, six months of initial confinement in prison followed by extended supervision. Reed argued for probation. Milisauskas sentenced Reed to three years of initial confinement followed by two years of extended supervision. He also denied Reed’s subsequent postconviction motion to withdraw his plea.
Material and substantial breach
In State v. Reed, a unanimous decision written by Judge Lisa Neubauer, the District II Court of Appeals first indicated that not every breach of a plea agreement warrants a remedy. The breach must deprive the nonbreaching party of a substantial and material benefit for which it bargained.
The court observed that “Reed reaped the benefits of the dismissal of three charges against him.” The state, on the other hand, was deprived of the material and substantial benefit of “protecting the public from Reed’s misconduct” while Reed awaited sentencing.
In addition, the new charges and the probable cause findings “bear directly on sentencing and, consequently, the state’s recommendation.” This is because it falls within one of the three primary sentencing factors: the gravity of the crime, the interests of the community and the character of the defendant.
Gravity of the crime includes consideration of mitigating and aggravating factors. The community’s interests include protection from as well as rehabilitation of the defendant.
The defendant’s character has the broadest reach of the three factors. It encompasses age, education, social and family factors, employment history, history of undesirable behavior, criminal convictions, recognition of wrongdoing, and remorse, if any.
The appeals court correctly noted that patterns of behavior versus isolated acts are relevant issues in considering the defendant’s character. So are uncharged, charged but pending, and unproven offenses. Even offenses the defendant has been acquitted of can be considered at sentencing.
Thus, Reed’s new charges which were pending at the time of sentencing constituted a material and substantial breach of the plea agreement.
Remedy for breach
The circuit court has discretion in choosing a remedy for breach of a plea agreement. The remedy, of course, depends on all the circumstances of the case, including both parties’ interests. Here, the state’s hands were clean. Reed’s breach was substantial and material.
The remedy of vacating the plea agreement would expose Reed to three more charges and more than four years of additional prison time. The remedy of allowing the state to make a specific sentencing recommendation had the advantage of holding Reed accountable only for the substantial battery.
Sentencing would already include consideration of Reed’s pattern of misconduct. Thus the Court of Appeals affirmed Milisauskas’s choice to let the state make a specific recommendation at sentencing.
This case is well reasoned and logically presented. It is clearly and succinctly written, with excellent reference to appropriate precedent. It is unpretentious and without condescension.
The circuit court’s decision-making is graciously noted. The teaching is readily accessible to busy trial attorneys and judges.
This kind of opinion is a wonderful addition to published Wisconsin case law. Neubauer did herself proud, as well as all appellate courts in Wisconsin.