State v. Jordan
| Decision Date | 06 October 2016 |
| Docket Number | No. 2015AP2062–CR.,2015AP2062–CR. |
| Citation | 372 Wis.2d 458,888 N.W.2d 246 (Table) |
| Parties | STATE of Wisconsin, Plaintiff–Respondent, v. Brandon E. JORDAN, Defendant–Appellant. |
| Court | Wisconsin Court of Appeals |
¶ 1
Brandon Jordan appeals a judgment of conviction for violating a harassment injunction issued under WIS. STAT. § 813.125(7), as well as the circuit court's order denying his postconviction motion for plea withdrawal. Jordan asserts that his conviction should be overturned because his termination from the Deferred Prosecution Program was not done in compliance with the terms of his deferred prosecution agreement and thus violated his due process rights. Jordan also asserts that he is entitled to withdraw his plea because the circuit court failed to ascertain whether a factual basis existed for his conviction. For the reasons discussed below, I affirm.
¶ 2 In December 2012, Jordan was charged with one count of violating a harassment injunction. In exchange for his guilty plea to the charge, Jordan accepted an offer of deferred prosecution from the Dane County District Attorney's Office. Under the deferred prosecution agreement, the District Attorney's Office agreed to defer prosecution for nine months from the date of the deferred prosecution agreement, which was signed on June 12, 2013, and, if the terms of the deferred prosecution agreement were complied with within that time period, to dismiss the charge against Jordan. Under the terms of the agreement, Jordan was required to submit essay questions by July 12, 2013, complete a treatment assessment by September 12, 2013, check in with the Deferred Prosecution Program monthly, and pay a service fee for the program. The agreement expressly provided the following remedies in the event that Jordan failed to abide by the agreement's terms:
If you violate any terms of this contract ... the Dane County District Attorney may, during the period of deferred prosecution: (1) revoke or modify, add or delete conditions of this deferred prosecution contract to include changing the period of deferral or, (2) prosecute you for the offense(s). If a decision is made to terminate you from the program, you may follow the grievance procedure, which is provided to you at the time you sign the contract. The District Attorney may also resume prosecution at any time prior to a court's dismissal of the charge(s) for breach of a deferred prosecution agreement that occurred at any time during the term of the deferral period.
¶ 3 The circuit court approved the parties' agreement, and Jordan entered a guilty plea to violating a harassment injunction. Pursuant to the parties' agreement, the circuit court did not enter a judgment of conviction upon Jordan's plea, but instead suspended the proceeding.
¶ 4 In a July 2014 letter to the circuit court, the Deferred Prosecution Program informed the court that Jordan had not complied with the terms of the June 2013 deferred prosecution agreement and that in August 2013, Jordan had been issued a warning letter. The July 2014 letter stated that a meeting between Jordan and the Deferred Prosecution Program was held in March 2014, and they had mutually agreed to extend the deferred prosecution time period by six months.2 The letter stated that in exchange for the extension, Jordan agreed to the following: (1) pay $150 per month in program fees by the last day of each month; (2) answer essay questions by April 30, 2014; (3) undergo a domestic violence assessment and complete any recommendations by September 12, 2014; (4) check in with the Deferred Prosecution Program monthly. The letter further stated that Jordan had not complied with any of the conditions of the extension of his deferred prosecution time period and that "[g]iven [Jordan's] persistent non-compliance, we have concluded that [ ] Jordan is no longer eligible to participate in our diversion program."
¶ 5 In a January 2015 letter, the Deferred Prosecution Program notified the circuit court that Jordan had been re-referred to the Program on July 17, 2014, that Jordan had been provided with information explaining the process to be considered for re-admission and directing him to respond with a letter of appeal and other requested documents. The Program stated that despite ample time to do so, Jordan had failed to provide verification of his enrollment and participation "in a certified abuser program," a requirement for re-admission, and that the Program had concluded that Jordan was not eligible for re-admission.
¶ 6 In March 2015, Jordan moved the court to dismiss the action with prejudice, or in the alternative, to "enforce ... [Jordan's] due process rights under the Deferred Prosecution Agreement," including his rights under the Deferred Prosecution Program's grievance procedure.
¶ 7 The circuit court denied both of Jordan's motions. The court determined that Jordan's termination from the Program did not violate any provision in the deferred prosecution agreement or his due process rights. The court then found Jordan guilty based upon Jordan's earlier guilty plea and sentenced Jordan to fifteen days in jail. Jordan filed a postconviction motion to withdraw his plea on the basis that there was no factual basis to find that Jordan had violated a harassment injunction order. The court denied the motion. Jordan appeals.
¶ 8 Jordan contends that his conviction should be overturned because his termination from the Deferred Prosecution Program violated the provisions of the deferred prosecution agreement and his due process rights. Jordan also contends that the circuit court erred in denying his motion to withdraw his plea, arguing that the court failed to satisfy the "factual basis" requirement under WIS. STAT. § 971.08(1)(b). I address each of these issues in turn below.
¶ 9 Jordan argues that his termination from the Deferred Prosecution Program was not done in compliance with the terms of the deferred prosecution agreement or the Program's grievance procedure, which he asserts is "fundamentally unfair" and a violation of his due process rights.
¶ 10 Both parties discuss whether Jordan was properly or improperly terminated from the Deferred Prosecution Program under the principles of contract interpretation. I follow their lead and, therefore, draw upon principles of contract law in determining Jordan's rights under the terms of the deferred prosecution agreement. See State v. Roou, 2007 WI App 193, ¶ 25, 305 Wis.2d 164, 738 N.W.2d 173 (). The interpretation of a written contract is a question of law subject to de novo review. State v. Toliver, 187 Wis.2d 346, 355, 523 N.W.2d 113 (Ct.App.1994).
¶ 11 The deferred prosecution agreement provides that "[i]f a decision is made to terminate [a participant] from the program, [the participant] may follow the grievance procedure, which is provided to [the participant] at the time [the participant] sign[s] the contract." The grievance procedure for the Deferred Prosecution Program provides:
The grievance further provides that if a defendant "do[es] not agree with the counselor's decision to terminate [him] from the Deferred Prosecution Program," the defendant may appeal that decision to the director of the Program in a manner outlined in the grievance procedure. If the defendant is unsatisfied with the director's decision, the defendant may appeal that decision to the Dane County District Attorney.
¶ 12 Jordan does not dispute that the Program sent him a warning letter in August 2013 outlining his noncompliance with the deferred prosecution agreement. He also does not dispute that he appeared for a case review appointment in March 2014, at which an agreement was reached that he would be given an additional six months to complete the conditions of his deferred prosecution agreement. Jordan argues, however, that under the terms of the deferred prosecution agreement and grievance procedure, he should have been issued another warning letter when he failed to comply with the agreement conditions during the six-month extension time period. Jordan asserts that the second warning letter would have then resulted in either: (1) a further resolution between Jordan and the Program, or (2) a letter notifying Jordan that he would be terminated from the Program and a right to appeal his pending termination to the director of the Program and the district attorney.
¶ 13 The grievance procedure provides that in the event that a participant does not satisfy the agreed upon conditions, the participant will be sent a "warning letter" outlining the participant's noncompliance. The Program did so. Jordan takes the position that because he reached an agreement with the Program to extend the time he had to complete his agreed upon conditions, the Program was obligated to send him an additional warning letter when he still failed to comply with the conditions. However, Jordan does not direct this court to language in the deferred prosecution agreement or in the grievance procedure requiring an additional warning letter, and this court's review of those documents reveals none.
¶ 14 Jordan argues that "the only reasonable interpretation of" the...
To continue reading
Request your trial