State v. Jorgensen, 86-0742-CR

• Citation: 137 Wis.2d 163,404 N.W.2d 66
• Decision Date: 03 November 1986
• Docket Number: No. 86-0742-CR,86-0742-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. William JORGENSEN, Defendant-Appellant. . Submitted on Briefs:
• Court: Wisconsin Court of Appeals

Page 66

404 N.W.2d 66

137 Wis.2d 163

STATE of Wisconsin, Plaintiff-Respondent, v. William JORGENSEN, Defendant-Appellant.

No. 86-0742-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs: Nov. 3, 1986.

Opinion Released Feb. 4, 1987.

Opinion Filed Feb. 4, 1987.

Robert M. Courtney, of Courtney, Pledl & Molter, S.C., Milwaukee, for defendant-appellant.

Bronson C. La Follette, Atty. Gen. and Barry Levensson, Asst. Atty. Gen., for the plaintiff-respondent.

Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.

NETTESHEIM, Judge.

William Jorgensen appeals from a judgment of conviction and subsequent order denying his motion for resentencing. The sole issue on appeal relates to the state's alleged violation of an oral plea agreement under which the state was to remain silent at the time of Jorgensen's sentencing. Because we conclude that there was no violation of the plea agreement, we affirm.

On August 20, 1984, the Kenosha police were called to Jorgensen's residence because Jorgensen was threatening to kill himself with a shotgun. Jorgensen was arrested and charged, as a repeater, with possessing a firearm as a convicted felon pursuant to secs. 941.29(1)(2) and 939.62(1)(b), Stats. At the August 29, 1985 plea hearing, the state and Jorgensen's counsel entered into the following plea agreement:

MR. COAKLEY: I would like the record to reflect it is my understanding this matter is set for a plea and it is my understanding the defendant intends to plead guilty or no contest to possession of a firearm as a repeater and there is a joint recommendation that the Court order a pre-sentence in this matter, and at the time of sentencing the State will remain silent. [Emphasis added.]

MR. EGRE: That is a correct statement of the plea agreement, and pursuant to that, Mr. Jorgensen does enter a plea of no contest to the Information.

Prior to the passage of sentence, Jorgensen's counsel engaged in a lengthy oration of Jorgensen's problematic history which included details of the attempted suicide. In an effort to mitigate the seriousness of the charged offenses, Jorgensen's counsel pointed out that Jorgensen "didn't leave the residence with the shotgun[,] ... denies the shotgun was loaded, and ... never discharged the shotgun." (Emphasis added.) At the conclusion of these comments, the state and Jorgensen's counsel had the following colloquy with the trial court:

MR. COAKLEY: Pursuant to the sentencing agreement, the State agreed to remain silent at sentencing. However, I believe I am placed in a difficult position because from what defense counsel said, there is a factual discrepancy as to the way the offense was described, and the State has facts contrary to the facts of this incident, the way the defendant described. Where I don't want to make a recommendation to the Court, that is an agreement, I feel as an Officer of the Court, if I do believe there is a discrepancy of facts, I should present it to the Court's attention.

MR. EGRE: I object to Mr. Coakley making any remarks with regard to sentence. The plea agreement was to remain silent and I would consider it to be a violation if he would make any further comment. If Mr. Coakley is making a comment as to the dispute as to whether or not the shot was fired, that is explained in the presentence and the gun was fired outside the door but Detective Kopesky indicated when he responded to the scene the shotgun was unloaded and Mr. Jorgensen denied he at any time discharged the shotgun.

THE COURT: Is that what you were going to bring up?

MR. COAKLEY: That is correct.

MR. EGRE: There is no claim whatsoever, I have never encountered any claim that anyone's safety was endangered if it was fired, but it is Mr. Jorgensen's position that shotgun was not fired.

The trial court proceeded to sentence Jorgensen to twenty months' incarceration.

At the hearing on his post-conviction motions, Jorgensen contended that the state's comments at the sentencing hearing constituted a breach of the plea agreement. Accordingly, Jorgensen requested that the court resentence him. The sentencing court found that the state did not violate the plea agreement and therefore denied Jorgensen's request.

Courts have frequently looked to contract law analogies in determining the rights of defendants allegedly violated in the plea negotiation process. State v. Paske, 121 Wis.2d 471, 474, 360 N.W.2d 695, 697 (Ct.App.1984). Most cases involving claimed breaches of plea agreements present a request that the agreement be vacated and that the plea be withdrawn. See State v. Bangert, 131 Wis.2d 246, 288-89, 389 N.W.2d 12, 32 (1986). In such cases, the party seeking to vacate the agreement must establish a material and substantial breach by clear and convincing evidence. Id. at 288, 389 N.W.2d at 32. This case is unique because Jorgensen does not seek to vacate the plea agreement and withdraw his plea. Rather, Jorgensen seeks enforcement of the plea agreement under his interpretation of it. In effect, Jorgensen seeks specific performance of the plea agreement. ¹ Seeing no need to fashion a different rule, we first conclude that the burden applicable in a specific performance case such as here should be the same as in those cases where vacation of the agreement and plea is sought. Therefore, Jorgensen's burden was to show, by clear and convincing evidence, not only that a breach occurred, but also that it was material and substantial.

Specific performance is an equitable remedy which is left to the trial court's discretion. Edlin v. Soderstrom, 83 Wis.2d 58, 70, 264 N.W.2d 275, 281 (1978). We will not overturn a trial court's refusal to order specific performance absent an abuse of discretion. Negus v. Madison Gas & Elec. Co., 112 Wis.2d 52, 62, 331 N.W.2d 658, 664 (Ct.App.1983).

The trial court's refusal to grant Jorgensen a new sentencing hearing was based on the finding that the state's comments did not breach the plea agreement. Whether a breach of contract exists involves a question of fact. Koenings v. Joseph Schlitz Brewing Co., 126 Wis.2d 349, 358, 377 N.W.2d 593, 598 (1985). An abuse of discretion occurs when the trial court has made a mistake of fact. Dean v. Dean, 87 Wis.2d 854, 877, 275 N.W.2d 902, 912 (1979). Findings of fact will not be overturned unless clearly erroneous. Sec. 805.17(2), Stats.

Jorgensen argues that...