Breach of Plea Agreement

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Kou Thao

Case No.: 2016AP1758-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Breach of Plea Agreement

Kou Thao appeals a judgment of conviction for, among other things, second-degree intentional homicide. He also appeals an order denying his postconviction motion for resentencing. Thao contends the State breached its plea agreement with him by refusing at the sentencing hearing to concede the historical facts regarding Thao’s claimed use of imperfect self-defense during the fatal shooting for which he was prosecuted.

We conclude that even assuming the State breached the plea agreement, the breach was not material and substantial. The primary benefit Thao received from the plea agreement was a reduction in the available penalty as a result of the State’s agreement to reduce the charge from first-degree intentional homicide. Further, the agreement specifically allowed the State to argue for the maximum penalty on the reduced charge, and the agreement did not contain any specific directive regarding the effect of the statutory concession on the parties’ sentencing arguments. Consequently, we affirm.

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