State v. Harper

• Court: Wisconsin Court of Appeals
• Writing for the Court: FINE
• Citation: State v. Harper, 526 N.W.2d 279, 188 Wis.2d 603 (Wis. App. 1994)
• Decision Date: 04 October 1994
• Docket Number: No. 93-1790-CR,93-1790-CR
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.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. Michael HARPER, Defendant-Appellant.

Page 279

526 N.W.2d 279

188 Wis.2d 603

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.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. Michael HARPER, Defendant-Appellant.

No. 93-1790-CR.

Court of Appeals of Wisconsin.

Oct. 4, 1994.

Before WEDEMEYER, P.J., FINE and SCHUDSON, JJ.

WEDEMEYER.

Michael Harper appeals from a judgment convicting him of theft, as a party to a crime, and from an order denying his motion for postconviction relief. The issues are: (1) whether the State breached the plea bargain it had entered into with Harper; and (2) whether Harper received ineffective assistance of trial counsel. We reverse the order and remand the judgment for resentencing.

Harper pled guilty to one count of theft pursuant to the terms of a plea agreement. At the plea hearing, the State explained the agreement to the court:

It's my understanding Mr. Harper is going to enter a plea of guilty to the charge in the information, theft from person as habitual criminal. State will make no specific sentencing recommendation. If there is a presentence, we'll comment on the facts in the presentence, the facts of the offense, and the Defendant's record.

At the sentencing hearing, the prosecutor made comments that Harper contends breached the agreement. ¹ The prosecutor commented negatively on the presentence investigator's recommendation that Harper be given a stayed term of imprisonment and placed on probation, saying that the recommendation was made "[d]espite the fact that when [Harper]'s on community supervision he does poorly." The prosecutor opined that the recommendation was based not on Harper's needs, but "on directives from the Department of Corrections to reduce prison crowding." The prosecutor also noted that Harper "does well in prison."

During the hearing on Harper's motion for postconviction relief, which was based on Harper's argument that the plea agreement was breached, the prosecutor acknowledged that he wanted the court to draw the inference "that prison was the option that made sense" for Harper. The prosecutor further conceded that this inference could reasonably be drawn from his comments. The prosecutor argued, however, that he did not breach the terms of the agreement because he did not suggest a particular sentence. The trial court concluded that the agreement had not been breached.

A defendant who pleads guilty waives fundamental rights. State v. Poole, 131 Wis.2d 359, 361, 394 N.W.2d 909, 910 (Ct.App.1986). Therefore, " 'when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration [for the plea], such promise must be fulfilled.' " Id. (quoting Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, ---, 30 L.Ed.2d 427 (1971)). Whether a plea agreement was breached is a question of fact. State v. Windom, 169 Wis.2d 341, 349, 485 N.W.2d 832, 835 (Ct.App.1992). " 'Findings of fact will not be overturned unless clearly erroneous.' " Id. (citation omitted).

In Poole, the defendant pleaded guilty to a burglary charge pursuant to a plea agreement in which the State would recommend a fine of $1500.00. Id. at 360, 394 N.W.2d at 909. At sentencing, the prosecutor recommended the fine, but stated that this recommendation was agreed to "before we knew of the other instances. But that is our agreement." Id. The other instance referred to by the prosecutor was a separate case in which the defendant's probation had been revoked. Id. This court held that "the [S]tate may not undercut a sentencing recommendation bargained for under a plea agreement" and concluded that the plea agreement had been breached because the prosecutor's statement constituted "less than a neutral recitation of the terms of the plea agreement," and was thus not what the defendant had bargained for. Id. at 360, 364, 394 N.W.2d at 909, 911.

In Miller v. State, 272 Md. 249, 322 A.2d 527 (Md.1974), a case cited with approval by this court in Poole, the prosecutor, after agreeing to make no sentencing recommendation, told the court that he was "not in full compliance with the recommendation of the Probation Officer." Id. 322 A.2d at 529. The Maryland Court of Appeals held that the prosecutor breached the plea agreement because he commented negatively on the probation officer's sentencing recommendation, even though he technically complied with the agreement by advancing no recommendation of his own. Id. The court reasoned:

[w]hen the prosecuting attorney said this, he was advising or suggesting to the judge that the conditional probation recommendation not be completely accepted. This constituted a 'recommendation' by the prosecuting attorney as to the 'disposition' of the case. Moreover, the prosecuting attorney certainly appeared to be recommending that imprisonment instead of conditional probation be imposed. Absent some further explanation by the prosecuting attorney, the only logical inference that could be drawn from his statement is that he was urging imprisonment rather than probation. The prosecutor's statement was inconsistent with his undertaking to make 'no recommendation.'

Id.

In this case, the prosecutor commented negatively on the presentence investigator's recommendation that Harper be given a stayed prison term and placed on probation. Like the Maryland Court of Appeals, we conclude that these comments breached the agreement to make no sentencing recommendation because the only inference that could be drawn from the comments is that the prosecutor was urging imprisonment rather than probation. Under the agreement, the prosecutor was allowed only to comment on Harper's record and the facts contained in the presentence investigation report, not on the sentencing recommendation made by the parole officer based on the report.

The State contends that it did not breach the agreement because it made no express sentencing recommendation. While the prosecutor did not explicitly recommend a sentence, he expressed his reservations about the recommendation that Harper be placed on probation. "The [S]tate may not accomplish 'through indirect means what it promised not to do directly.' " State v. Ferguson, 166 Wis.2d 317, 322, 479 N.W.2d 241, 243 (Ct.App.1991) (citation omitted). As we said in Ferguson, the law prohibits not only explicit repudiations of plea agreements, but also " 'end-runs around them.' " Id. (citation omitted). In commenting negatively on the probation recommendation, the prosecutor undercut the agreement to give no sentencing recommendation.

Because we conclude that Harper received "less than a neutral recitation of the product of the bargain," Poole, 131 Wis.2d at 362, 394 N.W.2d at 910 (emphasis in original), Harper is entitled to resentencing. Therefore, we need not consider whether...