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COURT OF APPEALS DECISION DATED AND RELEASED November 07, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1526-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
THOMAS C. GROHMANN,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: ELSA C. LAMELAS,
Judge. Reversed and cause remanded
with directions.
SULLIVAN,
J. Thomas C. Grohmann appeals from a judgment of conviction, on a no
contest plea, for misdemeanor battery, contrary to § 940.19, Stats.
He also appeals from an order denying his motion for postconviction
relief. He presents one issue for this
court's review—whether the State's recommendation at sentencing of “straight
time” breached the State's promise as part its plea agreement with him to take
no position opposing work release, thereby violating his due process
rights. The trial court concluded that
the State's recommendation was a “technical breach” of the plea agreement, and
therefore did not mandate Grohmann's resentencing before a different
judge. This court disagrees because the
State's recommendation violated the terms of the plea agreement. Accordingly, this court must reverse the
order and judgment of conviction and remand the matter to the trial court for
resentencing before a different judge.[1]
In November 1993,
Grohmann was charged with one count of misdemeanor battery of his
girlfriend. After plea negotiations
with the State, he entered a no contest plea to the battery charge. At sentencing, the following exchange took
place:
THE COURT: I
will hear from everyone who wishes to make a statement. Mr. [Prosecutor], is the State taking any
position as to whether this time should be straight time or time with Huber
privileges?
[PROSECUTOR]: Judge,
I think incarceration is appropriate.
THE
COURT: With or without Huber privileges?
[PROSECUTOR]: I
can't recall whether that was an aspect of our plea negotiations. My position is that the time should be
straight time, and I don't recall an agreement that we'd commit to recommending
other than that.
[GROHMANN'S
COUNSEL]: I beg to differ with that, Judge. At least my understanding was, there would
be a potential for Huber.
THE
COURT: Was that put on the record?
[PROSECUTOR]: I'm
not sure. The negotiations were put on
the record.
THE
COURT: I'm sure the negotiations were put on the record, I always
ask for it. Was that what I was told?
[PROSECUTOR]: I
cannot recall.
[COUNSEL]: I
can't recall. On misdemeanor cases,
Judge, in speaking with the district attorneys, I can honestly say if it wasn't
verbally stated, I thought that was our understanding. As far as going into court, Judge, and
knowing it was straight time, I would have objected to it for a
misdemeanor. I am naturally assuming
Huber would be a consideration.
[PROSECUTOR]: I
will not take a position one way or the other.
I will not affirmatively recommend Huber privileges, but I will stand
silent on the issue and rely on the court's judgment in the matter.
The trial court then
sentenced Grohmann to the maximum penalty of nine months incarceration. He received Huber privileges to attend
Batterer's Anonymous meetings, doctor's appointments, and child visitations.
After the judgment was
entered, Grohmann filed a motion for postconviction relief, seeking, inter
alia, resentencing based on the State's alleged breach of its plea
agreement with Grohmann. Further, he
sought work release privileges. He
argued that pursuant to the plea agreement, the State was to remain silent on
the issue of work release, and that the State's original request for
incarceration, that is, “straight time,” violated this agreement. The trial court held evidentiary hearings
where Grohmann's appellate counsel questioned the prosecutor about the plea
negotiations:
Q.Now, could you state the substance of
what [trial counsel] proposed to you as a potential plea agreement?
A.It's my recollection-- I have not reviewed the files. It is my recollection that there were two
charges for two separate incidents that had been joined for trial, and he
proposed that the State dismiss one of those incidents, one of those charges,
in exchange for a plea to the other. I
don't recall whether it would be a dismissal and read-in or an outright
dismissal of the charge that was to be dismissed. It was essentially dismissing one charge in exchange for a plea
to the other.
Q.Did [trial counsel] propose anything as
far as sentencing was concerned?
A.We discussed sentencing. I told him I would recommend nine months,
which was the maximum for the particular charge that Mr. Grohmann was pleading
guilty to. I cannot tell you the
verbatim discussions that occurred, but I made it clear to him that was the
arrangement I would be recommending, nine months in the House of Correction.
Q.Were there any discussion [sic] of
whether Huber privileges would be requested by the State or whether [trial
counsel] wished the State to recommend Huber privileges?
A.There was some discussion of Huber. [Trial counsel] intended to recommend Huber
to the court. I did not think in this
case Huber was appropriate; however, the agreement we reached was that I would
not oppose Huber, nor would I affirmatively recommend Huber as being
appropriate to the court. Essentially,
I would recommend the nine months in the House of Correction and not take a
position either way with respect to Huber.
Grohmann's trial counsel
testified that it was his understanding and recollection of the plea
negotiations that the State would recommend nine months incarceration with
Huber privileges or work release.[2] Before reaching its decision on Grohmann's
motion, the trial court made the following findings of fact. First, the trial court found that the record
of the agreement between Grohmann and the State was silent on “whether there
was going to be an affirmative position [taken by the State] with respect to
straight time or Huber.” Second, from
the testimony taken at the postconviction hearing, the trial court found that
there was nothing that led the trial court “to believe that there was an
affirmative representation that the State would recommend either Huber, or that
the State would be recommending straight time [and that it was] just an issue
that did not arise.” Third, the trial
court found that once the prosecutor “was informed of what the negotiations
were, he withdrew his request for straight time and decided to stand silent
with respect to the issue.”
The trial court then
concluded that the real question raised was whether the “very short period”
from when the prosecutor “`request[ed] nine months straight time,' to the time
that he withdrew that request” was a breach.
The trial court determined that it could not be “characterized as
anything other than a technical breach.”
Accordingly, the trial court denied Grohmann's motion requesting
resentencing before another judge.
In determining whether
the State violated the terms of a plea agreement, this court's standard of
review will depend on the circumstances of each case. See State v. Wills, 193 Wis.2d 273, 277, 533 N.W.2d
165, 166 (1995). Accordingly:
If
there are disputed questions of fact on appeal, that is, if the question of
whether the prosecutor violated the terms of the plea agreement turns on a
question of fact, then the court must give deference to the factual findings of
the circuit court unless clearly erroneous.
If there are no disputed questions of fact on appeal, ... the question
is one of law to be reviewed de novo without deference to the lower
court.
Id.
The facts are
uncontroverted. The trial court found
that the agreement was silent on whether the State would affirmatively
recommend Huber privileges, but the court also found that the agreement did
provide that the State would remain silent on the issue of Grohmann's request
for Huber privileges. This is
consistent with the prosecutor's testimony at the postconviction hearing, where
he stated that “the agreement we reached was that I would not oppose Huber, nor
would I affirmatively recommend Huber as being appropriate to the court. Essentially, I would recommend the nine
months in the House of Correction and not take a position either way with
respect to Huber.” Further, as the
record from sentencing shows and as the trial court found, the prosecutor
briefly recommended “straight time,” but then switched and said that he would
remain silent on work release. It is
also uncontroverted that Grohmann agreed to plead no contest at least in part
on his belief he would receive work release privileges. These findings of fact are not clearly
erroneous. Id.
Our question then
becomes whether the “technical breach,” as found and characterized by the trial
court, and Grohmann's subsequent sentencing, was a violation of his due process
rights. See Santobello v.
New York, 404 U.S. 257, 262 (1971) (When “a plea rests in any
significant degree on a promise or agreement of the prosecutor, so that it can
be said to be a part of the inducement or consideration, such a promise must be
fulfilled.”). This is a question of law
this court must review de novo.
“`[W]hen a defendant
pleads guilty to a crime pursuant to a plea agreement and the prosecutor fails
to perform his [or her] part of the bargain, the defendant is entitled to
relief.'” State v. Poole,
131 Wis.2d 359, 361, 394 N.W.2d 909, 910 (Ct. App. 1986) (citation omitted).[3] Did the prosecutor's brief recommendation
for “straight time” and then his recantation of this recommendation violate
Grohmann's due process rights? This
court is forced to conclude that it did.
The “technical breach” is still a material breach of the agreement which
calls into question the constitutional fairness of Grohmann's plea and
sentence. See State v.
Wills, 187 Wis.2d 528, 537, 523 N.W.2d 569, 572 (Ct. App. 1994) (“[O]nce
the defendant has given up his bargaining chip by pleading guilty, due process
requires that the defendant's expectations be fulfilled.” (citation omitted)), aff'd
by equally divided court, 193 Wis.2d 273, 533 N.W.2d 165 (1995).
It is clear from the
record that the prosecutor did not intend to breach the State's plea agreement
with Grohmann, and that once he was made aware of the actual agreement, he
attempted to mitigate his previous recommendation. Unfortunately, it is not possible to put the djinni back
into the bottle once it is released.
Thus, whether the trial court could have disregarded the State's
original recommendation for “straight time,” and instead focused on the State's
feigned silence, is irrelevant. Poole,
131 Wis.2d at 364, 394 N.W.2d at 911.
The State breached the agreement and Grohmann is entitled to
relief. The appropriate relief for this
violation of Grohmann's due process rights is resentencing. See id. at 365, 394
N.W.2d at 911; Santobello, 404 U.S. at 263.
Accordingly, this court
reverses the order and the judgment and remands the matter to the trial court
for resentencing before a different judge in a manner consistent with this
opinion.
By the Court.—Judgment
and order reversed and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.