State v. Conger

• Decision Date: 30 June 2010
• Docket Number: No. 2008AP755–CR.,2008AP755–CR.
• Citation: 325 Wis.2d 664,2010 WI 56,797 N.W.2d 341
• Parties: STATE of Wisconsin, Plaintiff–Co–Appellant,Honorable Peter L. Grimm, Intervenor–Respondent,v.Joshua D. CONGER, Defendant–Appellant.
• Court: Wisconsin Supreme Court

325 Wis.2d 664

797 N.W.2d 341

2010 WI 56

STATE of Wisconsin, Plaintiff–Co–Appellant,Honorable Peter L. Grimm, Intervenor–Respondent,

v.Joshua D. CONGER, Defendant–Appellant.

No. 2008AP755–CR.

Supreme Court of Wisconsin.

Argued Dec. 1, 2009.Decided June 30, 2010.

For the defendant-appellant there were briefs by Anthony L. O'Malley and Zacherl, O'Malley & Endejan, S.C., Fond du Lac, and oral argument by Anthony L. O'Malley.For the plaintiff-co-appellant the cause was argued by James M. Freimuth, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.For the intervenor-respondent there was a brief by Brady C. Williamson, Katherine Stadler, Patricia L. Wheeler, and Godfrey & Kahn, S.C., Madison, and oral argument by Patricia L. Wheeler.An amicus curiae brief was filed by Ben Kempinen and the Frank J. Remington Center, University of Wisconsin Law School, and oral argument by Ben Kempinen.

ON CERTIFICATION FROM THE COURT OF APPEALS¶ 1N. PATRICK CROOKS, J.

This case is before the court on certification from the court of appeals pursuant to Wis. Stat. § (Rule) 809.61 (2007–08).¹ It centers on a plea agreement that the Fond du Lac County Circuit Court rejected, and it presents three related questions. First, under what circumstances may a circuit court reject a plea agreement? Second, what factors may a court consider when it reviews a plea agreement? In answering the second question, we are asked to address whether the views of law enforcement may be among the factors considered.

[325 Wis.2d 670] ¶ 2 Third, as a corollary to those two questions, we must determine whether a judge who has rejected a plea agreement must then automatically withdraw from further participation in the matter, and, if not, whether the circumstances of this case at this point require such a recusal.

¶ 3 The first two questions presented by this case are answered by Wis. Stat. § 971.29 ² (which permits amendment of the charge without judicial approval only prior to arraignment) and established precedent concerning the circuit court's inherent authority to reject a plea that is not in the public interest. Thus, a circuit court must review a plea agreement independently and may, if it appropriately exercises its discretion, reject any plea agreement that does not, in its view, serve the public interest. That review is analogous to the court's independent determination that a factual basis exists for the plea and its independent determination pursuant to Wis. Stat. § 971.08(1) that the plea is made knowingly, intelligently, and voluntarily; such independent determinations are safeguards built into our system to protect the integrity of the plea process. When a court determines independently whether a plea is in the public interest, it is no more a reflection on the prosecutor's integrity or judgment than when it determines independently that a factual basis supports the plea.

¶ 4 As for the factors a court may consider when it makes that independent determination, we reiterate, as other courts have done, that the public interest is a consideration that is not capable of precise outlines. Accordingly, the factors that a court may weigh when defining the public interest involved will vary from case to case. One appropriate factor among many may well be the viewpoint of law enforcement; a court's consideration of that factor in its analysis does not automatically invalidate its ultimate decision with regard to the plea.

¶ 5 Finally, in answer to the questions about required recusal, we conclude that a court's rejection of a plea does not in and of itself become a “personal interest in the outcome of the matter,” and Wis. Stat. § 757.19(2)(f) ³ is not implicated here.⁴ We are unable to ascertain on this record whether in the course of the appeal Judge Grimm has become a party to this case,⁵ in which event it appears that Wis. Stat. § 757.19(2)(b) ⁶ would now require his recusal from further participation in this case. Because the record is undeveloped as to that question, we remand to the court of appeals the issue of whether, as a matter of law, Judge Grimm has now become a party or amicus. We then expect a remand to the circuit court for a decision under Wis. Stat. § 757.19(2) in regard to recusal.

¶ 6 We therefore affirm the order of the circuit court denying the motion to amend the information pursuant to the plea agreement. The order denying Conger's motion seeking the court's recusal was also properly denied. However, we remand the issue of whether Judge Grimm has now become a party or amicus and whether recusal is now required.

I. BACKGROUND

A. The Circuit Court

¶ 7 This case arises from the rejection by the Fond du Lac County Circuit Court, the Honorable Peter L. Grimm presiding, of a plea agreement that had been negotiated by the prosecutor and the defendant, Joshua D. Conger. The court of appeals, in its certification of the appeal to this court, set forth the underlying facts:

The defendant, Joshua D. Conger, was charged with possession with intent to deliver more than 200 grams but less than 1000 grams of marijuana within 1000 feet of a park, a Class H felony, Wis. Stat. ch. 961, and possession of drug paraphernalia, Wis. Stat. § 961.573(1). The police found forty-eight individually wrapped baggies of marijuana totaling 774 grams, hidden behind a ceiling tile in the home Conger shared with his girlfriend and a third person. The officers also found a digital scale, a box of sandwich baggies, and “a large amount” of marijuana stems. Conger also apparently told a police officer that he owed $2900 to a drug supplier.

The parties negotiated a plea agreement, which reduced the felony charge to three counts of misdemeanor possession of marijuana with intent to deliver, and the drug paraphernalia charge was to be dismissed and read-in. When the plea agreement was presented to the court, the State explained that the decision to reduce the charge was based on the facts that Conger was twenty-two at the time of the offense with no prior record, the drugs were found in the ceiling of a shared residence, his girlfriend was also being prosecuted, Conger had not admitted that the drugs were his, Conger had been doing well on bail and had participated in drug and alcohol counseling, and the State wanted to give him a chance to “clean up his act.” ⁷

¶ 8 The initial plea hearing was held on October 24, 2007; the hearing was adjourned twice to December 7, 2007, and February 18, 2008, for the specific purpose of having the State obtain additional information that the court requested before ruling on the motion to amend the charges as part of the plea agreement. At the first hearing, the court expressed skepticism about the amendment of the charges—stating at one point that it was “wrestling with the motion to amend”—and made reference to its responsibility under State v. Kenyon,⁸ which authorizes a court to reject a plea agreement that does not serve the public interest. At the conclusion of the first hearing, the court specified four facts it wanted to know: the correct weight of the marijuana seized in the case, its street value, the status of co-defendants' cases, and the drug unit's⁹ opinion of the agreement. The court then stated:

State v. Kenyon indicates the Court—Courts have a responsibility on the motion, and I appreciate the reasons submitted.... But in deference to the attorneys' recommendation, I will adjourn the matter, and I have asked a couple questions the lawyers didn't have answers to, and I think if we come back to court and the answers can be given that are all positive, while it's a very close case, I think if the answers come back positive, I will go along with the agreement, but if the answers come back negative, then I will have to exercise my discretion and make a decision under State v. Kenyon.

¶ 9 At the second plea hearing, having obtained the answers to three of its questions, the court stated, “If I had to decide right now based on what we have, the answer is still no, I'm not going to accept it....” The court made reference to the answers it had obtained from counsel, noting that “the quantity [of marijuana] [is] high, the dollar street value is high, so there [are] certainly uphill issues the Court has to address....” However, the court again adjourned the hearing, saying that the agency's opinion of the plea bargain—the still-unanswered question—would be “a factor [the court] would reconsider.”

¶ 10 At the third plea hearing, defense counsel informed the court that the MEG Unit “generally [is] not[ ] in favor of reductions from felonies to misdemeanors,” and the prosecutor agreed. The court reiterated concerns it had stated in both previous hearings—beginning by observing that “what really jumps out in this record is the nature of the facts within the Criminal Complaint and the preliminary hearing transcript” concerning the scale of the drug operation at Conger's residence. The circuit court also expressed its concern about “send[ing] a message to like-minded people who allegedly maintain a drug trafficking place or allegedly possess large quantities with higher street values with intent to deliver.” Among the factors cited by the circuit court was the fact that “the law enforcement unit of investigation and arrest is not agreeing to the plea bargain or the reduction from felonies to misdemeanors.” The court denied the motion.

¶ 11 Following the denial of the motion, Conger moved the circuit court for an order of recusal on the grounds that in rejecting the plea agreement, the circuit court had “acted in an adverse capacity to a party in the same proceedings” by its “encouragement of the continued prosecution of the defendant” and therefore recusal was required under Wis. Stat. § 757.19(2)(c).¹⁰ Alternatively, he sought recusal on the grounds that the “appearance of justice” required by the Due Process Clause to the Fourteenth Amendment of the United States...