State v. Kaczmarski

• Decision Date: 09 July 2009
• Docket Number: No. 2008AP1251-CR.,2008AP1251-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Chase E. KACZMARSKI, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

772 N.W.2d 702

2009 WI App 117

STATE of Wisconsin, Plaintiff-Respondent, v. Chase E. KACZMARSKI, Defendant-Appellant.

No. 2008AP1251-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs January 21, 2009.

Opinion Filed July 9, 2009.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Harold Harlowe and David M. Gorwitz of Hal Harlowe & Associates, S.C., Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Marguerite M. Moeller, Assistant Attorney General, and J.B. Van Hollen, Attorney General.

Before HIGGINBOTHAM, P.J., DYKMAN and LUNDSTEN, JJ.

¶ 1 HIGGINBOTHAM, P.J

Chase E. Kaczmarski appeals a circuit court order denying his motion to enforce compliance with a deferred prosecution agreement, and a judgment of conviction entered against him based on a guilty plea to second-degree sexual assault of a person who has not attained the age of sixteen. He seeks a court order dismissing the charge with prejudice. The issue on this appeal is whether the deferred prosecution agreement, drafted by the district attorney, permits the district attorney to resume prosecuting Kaczmarski for the underlying charge after the period of deferred prosecution has expired for a breach of the agreement which occurred during the deferral period. We conclude that the plain language of the agreement provides two potential remedies to the district attorney in the event of a breach by Kaczmarski, neither of which permits the district attorney to resume prosecution of the underlying charge after the period of deferred prosecution has expired. We therefore reverse and remand with directions to vacate the judgment of conviction for second-degree sexual assault of a person who has not attained the age of sixteen and enter an order dismissing the charge with prejudice.

BACKGROUND

¶ 2 Kaczmarski was charged with second-degree sexual assault of a person who has not attained the age of sixteen. In exchange for his guilty plea to the charge, Kaczmarski accepted an offer of deferred prosecution from the Dane County District Attorney's office. The express term of the deferred prosecution agreement was twenty-four months, to end on October 31, 2004. The parties agreed to extend the term by one year to October 31, 2005.

¶ 3 The deferred prosecution agreement imposed certain requirements on Kaczmarski, including that he not engage in conduct that rises to probable cause to believe he violated the criminal laws of Wisconsin or of the United States or other laws conforming to the criminal statutes "during the period of this contract." The agreement expressly provided the following remedies in the event Kaczmarski failed to abide by its terms:

If you violate the terms of this contract or if new information becomes available concerning this offense, 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 this offense.

¶ 4 During the last week of October 2005, when the contract was due to expire, the prosecutor was informed that Kaczmarski was being investigated based on the alleged discovery of child pornography on his computer.¹ However, the district attorney did not inform the court of these developments until January 2006 and did not resume prosecuting Kaczmarski until after the period of the deferred prosecution had ended.

¶ 5 Kaczmarski moved to enforce compliance with the deferred prosecution agreement and, at the hearing on the motion, moved for dismissal of the child sexual assault charge. The circuit court denied the motion. Kaczmarski was convicted based on his prior guilty plea and now appeals.

DISCUSSION

¶ 6 Kaczmarski first argues that WIS. STAT. § 971.37 (2007-08)² applies to the deferred prosecution agreement at issue here, and that, under its terms as applied to the facts of this case, the circuit court was required to dismiss the charge against him. The State counters that Kaczmarski forfeited this argument by failing to raise it before the circuit court. In the alternative, the State argues that § 971.37 does not apply here.

¶ 7 Forfeiture is a rule of judicial administration, and whether we apply the rule is a matter addressed to our discretion.³ See Ford Motor Co. v. Lyons, 137 Wis.2d 397, 417, 405 N.W.2d 354 (Ct.App. 1987). We generally do not consider arguments not raised in the circuit court. See Gibson v. Overnite Transp. Co., 2003 WI App 210, ¶ 9, 267 Wis.2d 429, 671 N.W.2d 388.

¶ 8 We conclude that Kaczmarski has forfeited his argument that the deferred prosecution agreement is subject to WIS. STAT. § 971.37. At the hearing on Kaczmarski's motion to compel enforcement of the agreement, defense counsel expressly stated that no statute applied to the agreement, although he expressed his belief that Wis. Stat. § 971.39 provided some guidance. Kaczmarski failed to argue to the circuit court that § 971.37 applied to the agreement. In his reply brief, Kaczmarski essentially concedes that he did not raise this issue before the circuit court.

¶ 9 In the alternative, Kaczmarski argues that due process "dictates" that we exercise our discretion to address whether WIS. STAT. § 971.37 applies to the deferred prosecution agreement. Citing City News & Novelty, Inc. v. City of Waukesha, 170 Wis.2d 14, 20-21, 487 N.W.2d 316 (Ct.App. 1992), he reminds us that we have been willing to review issues not raised first in the circuit court "where the issue is one of law, the facts are not disputed, the issue has been thoroughly briefed by both sides and the question is one of sufficient interest to merit a decision." Id. Whether we address forfeited arguments is left to our discretion. However, we see no compelling reason to ignore forfeiture here.⁴

¶ 10 Both the State and Kaczmarski agree that the deferred prosecution agreement is analogous to a contract and therefore we draw upon principles of contract law in determining the respective rights of the parties to the agreement. See State v. Roou, 2007 WI App 193, ¶ 25, 305 Wis.2d 164, 738 N.W.2d 173 (applying contract-law principles in the context of a plea agreement). 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). "[W]hen terms of a contract are plain and unambiguous, we will construe the contract as it stands." Id. A contract is ambiguous only when it is "`reasonably or fairly susceptible of more than one construction.'" State v. Windom, 169 Wis.2d 341, 349, 485 N.W.2d 832 (Ct. App.1992) (quoting Borchardt v. Wilk, 156 Wis.2d 420, 427, 456 N.W.2d 653 (Ct.App. 1990)). Whether a contract is ambiguous is a question of law we decide de novo. Id. We are not free "to revise an unambiguous contract in order to relieve a party to a contract `from any disadvantageous terms' to which he or she has agreed." Id. (quoting Dykstra v. Arthur G. McKee & Co., 92 Wis.2d 17, 38, 284 N.W.2d 692 (Ct.App. 1979)). We construe ambiguous language in a contract against the drafter. Walters v. National Props., LLC, 2005 WI 87, ¶ 14, 282 Wis.2d 176, 699 N.W.2d 71.

¶ 11 We begin our analysis by addressing whether the deferred prosecution agreement is ambiguous. The State contends that the agreement is ambiguous because of the interaction of two sentences it regards as contradictory. The State concedes that the following sentence, standing alone, appears to plainly provide that the district attorney may revoke Kaczmarski's agreement only during the deferral period:

If you violate the 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 this offense. (Emphasis added.)

However, the State contends that another sentence, when considered together with the above-cited sentence, creates ambiguity as to the conditions under which the criminal charge will be dismissed: "If you comply with the contract conditions, either the charge(s) against you will be dismissed or no criminal prosecution will be instituted as a result of this offense." The State reads this provision to provide that the only way Kaczmarski's charge may be dismissed is if he complies with the terms of the agreement.

¶ 12 We reject the State's argument that the interaction of the aforementioned provisions makes the deferred prosecution agreement ambiguous. The two provisions at issue here serve two distinct purposes and are not conflicting. One provision describes in general terms what will occur upon successful completion of the terms of the agreement; in other words, this provision specifies the benefit Kaczmarski will enjoy in the event he complies with the contract. The other provision specifies the conditions under which the district attorney may unilaterally revoke or modify the agreement or resume the prosecution, and it specifies the period during which the district attorney may exercise these options. We fail to see how the interaction of these provisions creates ambiguity.

¶ 13 We conclude that the deferred prosecution agreement unambiguously provides that, in the event that Kaczmarski breaches the agreement, the district attorney may resume prosecuting Kaczmarski only during the deferral period. The agreement plainly states that, if Kaczmarski violates the agreement, "the District Attorney may, during the period of deferred prosecution ... prosecute you for this offense." (Emphasis added.) As Kaczmarski argues, resumption of the prosecution after the deferred prosecution period expired is not a remedy provided by the agreement. The agreement provides the State with two potential remedies in the event of a breach: revocation/modification of the agreement or prosecution on the...