State v. Douville
| Decision Date | 23 October 1990 |
| Docket Number | No. 89-2298-CR,89-2298-CR |
| Citation | 158 Wis.2d 729,463 N.W.2d 880 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Howard DOUVILLE, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Appeal from a judgment of the circuit court for Iron county: PATRICK J. MADDEN, Judge.
Circuit Court, Iron County.
AFFIRMED IN PART, REVERSED IN PART.
Before CANE, P.J., and LaROCQUE and MYSE, JJ.
Howard Douville appeals a conviction for three counts of sexual assault, in violation of sec. 940.225(2)(e) and 940.225(1)(d), Stats., and an order denying postconviction relief. Douville argues that (1) the prosecutor violated the plea agreement, or, alternatively, there was no plea agreement, (2) he was denied effective assistance of counsel, (3) his fifteen-year sentence constitutes an abuse of discretion, and (4) the imposition of a $5,000 fine is illegal. We reject Douville's challenges except the last. Accordingly, we affirm in part and reverse in part.
Douville, age sixty-three, entered a no contest plea to one count and North Carolina v. Alford, 400 U.S. 25 (1970), pleas to two counts of sexual contact involving minors. The written plea agreement, signed by Douville, stated in part: "As to sentencing, the State of Wisconsin will make no specific recommendation as to what it feels the appropriate sentence should be."
At the sentencing hearing, the prosecutor called the mother of two of the victims as a witness and introduced letters from the parents of the third victim. In addition, the prosecutor presented argument concerning the defense mechanisms of pedophiles. The prosecutor made no specific recommendation as to sentence.
The defense presented the testimony of Dr. Michael Galli, a psychologist, who testified that Douville presented no danger to the community if he were prohibited from contact with juveniles and participated in therapy. Douville's counsel also presented four letters from community members on behalf of Douville's contributions to the community and lengthy argument concerning the alternative of probation. In addition, Douville asked the court to consider his past flawless record and his poor health. He had a military career, achieving the rank of lieutenant colonel. He advised the court that he had been told by his doctors that he had a 50/50 chance of living only two to three years due to his heart condition, for which he took daily medication.
The presentence report recommended a five-year prison sentence. The report contained Douville's statements and the victims' statements. Although Douville admitted one instance of misconduct with one of the children, he denied any impropriety with the two younger ones. The report concluded that because Douville was minimizing and denying his involvement with the children, because of the high recidivism rate for sex offenders and due to the degree to which the children, who trusted Douville, had suffered emotionally, probation was not a viable alternative. The presentence revealed that Douville suffers from serious heart disease and noted that Douville was intelligent, hard working and made many worthy contributions to his country and community.
The trial court sentenced Douville to five years on count 1 and ten years each on counts 2 and 3, to be served consecutively to count 1 and concurrently with one another. The court also imposed a $5,000 fine on count 1. The trial court stated that it was satisfied that Douville had led an exemplary life before the commission of the crimes with which he was charged. The court also concluded, however, that the crimes charged were not isolated but were an ongoing progression of an undesirable behavior pattern. The court took into account Douville's lack of criminal record, his remorse, education and employment background. The court also considered the seriousness of the offenses, the high rate of recidivism for sexual offenders, deterrence factors and protection of the public.
Douville brought postconviction motions to vacate his plea and for resentencing. At the postconviction hearing, Douville testified that he had believed, at sentencing, that the prosecutor would remain silent and no witnesses would testify and no argument would be made. Douville and his trial counsel testified that during the sentencing hearing, Douville was distraught and wrote his trial counsel a note indicating that he wondered if he could withdraw his guilty plea. After a brief discussion with Douville, trial counsel proceeded with the sentencing hearing.
Also, at the postconviction hearing, trial counsel testified that the written plea agreement accurately reflected the parties' understanding of the terms and conditions of the plea. He testified that he advised Douville of the effect of his Alford pleas and the potential maximum sentence. Trial counsel also testified that he advised Douville, prior to entering any plea agreement, that the prosecutor would be making argument and presenting witnesses. The trial court denied the postconviction motions.
Douville initially argues that the prosecutor breached the plea agreement by referring to "read-ins." He complains that after describing the factual basis for count 1, the prosecutor stated: "You will note that I have just given Your Honor the facts to charge three Second Degree Sexual Assaults, however only one [as to the first victim] has been charged[,] the other two [incidents involving the first victim] are for purposes of the read-in." Douville also complains that the prosecutor alleged that Douville contacted one of the victims and was outside the confines of his residence in violation of the conditions of his bond, stating: "I suspect that those two [potential] charges may also be appropriately read in." Douville further argues that the prosecutor made inflammatory arguments concerning pedophiles and presented testimony and exhibits from the victims' parents, in violation of the agreement. He contends that the prosecutor's comments related to the sentence, thereby breaching the plea agreement. We disagree.
A plea agreement is analogous to a contract. State v. Paske, 121 Wis.2d 471, 475, 360 N.W.2d 695, 697 (Ct.App.1984). It may be vacated where a material and substantial breach has been proved. State v. Rivest, 106 Wis.2d 406, 414, 316 N.W.2d 395, 399 (1982). Along with contract principles, a reviewing court must also consider "decency and fairness." Id.
Whether a material breach occurred is a question of fact for the trial court. State v. Jorgenson, 137 Wis.2d 163, 169, 404 N.W.2d 66, 68 (Ct.App.1987). Findings of fact will not be overturned unless clearly erroneous. Section 805.17(2), Stats. The trial courts, not the appellate courts, judge the credibility of witnesses and the weight of their testimony. State v. Wyss, 124 Wis.2d 681, 694, 370 N.W.2d 745, 751 (1985). The trial court has superior opportunity to observe the witnesses' demeanor and gauge their credibility. In re Dejmal, 95 Wis.2d 141, 151-52, 289 N.W.2d 813, 818 (1980). We review the record for facts to support the court's decision. Id. at 154, 289 N.W.2d at 819.
Here, the trial court found that the prosecutor scrupulously followed the agreement. The record supports the trial court's finding: The plea agreement did not prohibit the prosecutor from providing a factual basis for the plea, or from commenting on the facts. Neither did it prohibit the prosecutor from making comments relating to the sentence. The only prohibition was against a specific recommendation as to sentence. The prosecutor made no recommendation. The prosecutor's reference to "read-ins" did not breach the agreement. The plea agreement made no reference to "read-ins." Because the prosecutor made no recommendation, and the agreement did not bar prosecutorial comment, no breach occurred.
Douville further argues that no meeting of the minds existed between the prosecutor and the defendant; therefore, the plea should be vacated. Douville testified that he was never advised of the effect of the Alford pleas, or that the prosecutor would present witnesses, comment on the facts or refer to read-ins. This issue was not specifically raised at the trial level, and, accordingly, no specific finding is made by the trial court. However, the record supports the court's implicit finding that the parties entered into an agreement. See Sohns v. Jensen, 11 Wis.2d 449, 453, 105 N.W.2d 818, 820 (1960).
Douville's trial counsel testified that he advised Douville prior to entering the plea agreement that the prosecutor would be making argument and presenting witnesses. The record is consistent with this testimony. At the beginning of the sentencing hearing, the prosecutor stated in open court that it would be presenting one live witness, possibly more, and providing facts to support the court's exercise of discretion.
Trial counsel also testified that he advised Douville of the effect of an Alford plea and the maximum potential sentence. The trial court, in weighing the credibility of the witnesses, placed greater weight on the testimony of trial counsel. We conclude that the court's implicit finding that an agreement was reached is supported by the record.
Next, Douville claims that his trial counsel failed to represent his interests concerning the plea...
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