State v. Comstock

Citation485 N.W.2d 354,168 Wis.2d 915
Decision Date17 June 1992
Docket NumberNo. 90-2080-CR,90-2080-CR
PartiesSTATE of Wisconsin, Plaintiff-Appellant, v. Robert J. COMSTOCK, Defendant-Respondent-Petitioner.
CourtUnited States State Supreme Court of Wisconsin

For the defendant-respondent-petitioner there were briefs by David G. Ahrens and Jury & Ahrens, Appleton and oral argument by David G. Ahrens.

For the plaintiff-appellant there cause was argued by Marguerite M. Moeller, Asst. Atty. Gen., with whom on the briefs was James E. Doyle, Atty. Gen.


This is a review of a published decision of the court of appeals, State v. Comstock, 163 Wis.2d 218, 471 N.W.2d 596 (Ct.App.1991), reversing an order of the Outagamie County Circuit Court, John P. Hoffmann, Circuit Judge. The issue on review is whether the double jeopardy clause of the United States Constitution was violated when a circuit court (Judge Michael Gage in this case), upon considering a presentence investigation, vacated sua sponte the previously accepted no contest pleas and reinstated the felony charges contained in the original information. 1

For the reasons set forth, we hold that jeopardy attached in this case upon the circuit court's acceptance of the defendant's plea of no contest to the amended information. We further hold that the circuit court (Judge Michael Gage) violated federal constitutional protections when, under the circumstances of this case, it sua sponte vacated the defendant's pleas and reinstated the original charges. 2

Accordingly, we reverse the decision of the court of appeals. We agree with that part of the circuit court's (Judge John P. Hoffmann's) order dismissing the four felony charges, and we disagree with that part of the circuit court's (John P. Hoffmann's) order dismissing the two misdemeanor charges and the no contest pleas. We remand the cause to the circuit court for reinstatement of the amended information alleging two misdemeanor charges and the pleas of no contest and for sentencing proceedings.

Furthermore, as both the state and the defendant urge, 3 we exercise our superintending authority, 4 and direct each circuit court to refrain from sua sponte vacating a guilty or no contest plea after the circuit court has validly accepted the plea by assuring itself of the voluntariness of the plea and the factual basis for the charges unless the circuit court finds that there was fraud in procuring the plea or that a party intentionally withheld from the circuit court material information which would have induced the circuit court not to accept the plea. 5 As the state's brief explains, this holding avoids one of the unfortunate unintended effects of the court of appeals' decision in this case permitting the circuit court's sua sponte vacating of the no contest plea, namely that an accused will be reluctant to speak truthfully in the presentence investigation for fear that a disclosure may cause the circuit court to vacate the plea.

We first set forth the facts and background of the case. Next we discuss felony counts 1 and 2 which were reduced to misdemeanor counts. Lastly we discuss felony counts 3 and 4 which were dismissed.


The relevant facts of this case for purposes of this review are undisputed. Before we describe the relevant facts, however, we note that the dissent recites as fact a detailed description of the sexual relations between the defendant and the victim. Neither of the party's briefs nor the transcripts of the circuit court's hearings nor the court of appeals' opinion gives an account of the asserted relationship, and this opinion does not, because this narrative is not relevant to the constitutional issue presented in the case at bar.

Furthermore, the dissent admits that it recites numerous facts drawn from the presentence investigation report. Dissenting opinion at 370. We disapprove of this practice. The legislature has provided that the presentence investigation report be disclosed to a limited number of people. The circuit court is to use the presentence investigation for sentencing purposes. After sentencing, the presentence report shall be confidential and shall not be made available except as provided by court order and by statute. The report was sealed when it arrived in this court; the report was opened in this court and was available to members of the court. The presentence report will be resealed when this decision is released and the presentence report will not be part of the public record. Section 972.15(4), Stats.1989-90, reads: "After sentencing, unless otherwise authorized under sub. (5) or ordered by the court, the presentence investigation report shall be confidential and shall not be made available to any person except upon specific authorization of the court." 6 The legislative comments accompanying sec. 972.15 explain that "presentence reports should not be public records. The information in such reports is often unverified and would in many cases, even if true, cause irreparable harm to informants or the defendant." 7 The Commentary to the ABA Sentencing Alternatives and Procedure Standards, on which the legislature modeled sec. 972.15, reinforces this position: "No legitimate interests are served by public disclosure. The incentive both for the offender and for sources close to the offender to cooperate candidly in the presentence investigation might be lessened if they knew that their statements could become part of the public record." 8

Now the relevant undisputed facts. In September 1989, the defendant, Robert J. Comstock, was charged in a criminal complaint with two counts of second degree sexual assault, a Class C felony, for having sexual contact and sexual intercourse with a person over the age of 12 and under the age of 16 years. Section 940.225(2)(e), Stats.1983-84. 9 The charges were based on incidents which occurred on January 6, 1984, while the victim was visiting the defendant's home. On January 6, 1984, the victim was about two months shy of her 16th birthday, and the defendant was about 40 years old.

The preliminary hearing was held on October 6, 1989, before Outagamie Circuit Court Judge Michael W. Gage, with the victim as the only witness. The victim testified about the defendant's conduct on the evening of January 6, 1984. Immediately following the preliminary hearing, the assistant district attorney filed an information charging the defendant with four counts of second degree sexual assault, all based on the incidents which occurred on January 6, 1984.

On October 26, 1989, the assistant district attorney advised the defendant and the circuit court in a written response to the defendant's demand for discovery and inspection that the state was unaware of any criminal record for the defendant.

On November 13, 1989, the assistant district attorney moved the circuit court for permission to introduce at trial evidence of "other crimes or prior bad acts" based on other alleged sexual contact between the defendant and the victim and the victim's younger sister from January through April 1984. The circuit court was thus alerted to the state's assertion that it had evidence of other incidents of sexual misconduct involving the defendant and the victim and a younger member of her family.

The state and the defendant reached a plea agreement which the assistant district attorney set forth on the record at a court hearing on December 11, 1989. The prosecution agreed to amend counts 1 and 2 to reduce them from second degree sexual assault (felonies) to fourth degree sexual assault (misdemeanors) and to dismiss counts three and four of the information. 10 The defendant agreed to plead no contest to the two counts of fourth degree sexual assault. In addition, the prosecution agreed to recommend three years probation with a maximum of 75 days in jail as a condition of probation. The prosecutor further agreed on the record not to bring any other charges for any other incidents between the defendant and the victim or the victim's sister.

Circuit courts in this state may not involve themselves in the plea agreement process and are not bound by any plea agreement between a prosecutor and a defendant. Before permitting a prosecutor to amend charges to allege a less serious offense and before accepting a defendant's guilty or no contest plea to the amended charges, the circuit court must satisfy itself that the amended charges fit the crime and that the amendments are in the public interest. A circuit court may, as this court has written, ask sufficient questions, including the prosecutor's reasons for entering the plea agreement, to satisfy itself of the wisdom of accepting the plea to reduced charges. This is law of longstanding in this state. 11 At the December 11 hearing, in compliance with sec. 971.08, Stats.1989-90, and the procedure this court has set forth for a circuit court to accept guilty pleas and plea agreements, the circuit court advised the defendant that the court need not accept the plea agreement and was not bound by the plea agreement; that if the court reduced the charges pursuant to the plea agreement, it need not adhere to the prosecutor's recommended sentence; and that the circuit court could impose a sentence up to the maximum amount authorized by statute for the two misdemeanors, even if it accepted the plea agreement.

After advising the defendant of the legal consequences of a plea agreement, Judge Gage stated his understanding of the plea agreement on the record. Then the judge engaged the defendant personally in a long colloquy, determining that the defendant understood the nature of the original and amended charges, understood the maximum penalties, and was voluntarily entering the plea. Based upon the plea agreement and the record made at the preliminary hearing, the circuit court allowed the amendment of two felony charges (counts 1 and 2) to misdemeanor charges, dismissed two felony charges (counts 3 and 4), found a...

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