State v. Pittmon
| Decision Date | 11 June 2013 |
| Docket Number | No. 2012AP2355–CR.,2012AP2355–CR. |
| Citation | 835 N.W.2d 292,2013 WI App 94,349 Wis.2d 527 |
| Parties | STATE of Wisconsin, Plaintiff–Respondent, v. James G. PITTMON, Defendant–Appellant. |
| Court | Wisconsin Court of Appeals |
OPINION TEXT STARTS HEREAppeal from a judgment and an order of the circuit court for Outagamie County: Dee R. Dyer, Judge. Reversed and cause remanded with directions.
Before HOOVER, P.J., MANGERSON and STARK, JJ.¶ 1PER CURIAM.
James Pittmon appeals a judgment of conviction and an order denying his motion for resentencing. Pittmon argues the State breached the plea agreement, and seeks resentencing before a different judge. We agree that the State materially and substantially breached the agreement. Accordingly, we reverse and remand for resentencing before a different judge.
¶ 2 Pittmon was charged with two counts of repeated sexual assault of a child and one count of sexual assault of a child under age sixteen. A plea agreement was reached in which the State agreed to dismiss and read in two of the counts in exchange for a guilty or no-contest plea to one count of repeated sexual assault of a child. SeeWis. Stat. § 948.025(1)(e).1 That Class C felony carried a maximum penalty of forty years' imprisonment, including a maximum term of fifteen years' extended supervision. SeeWis. Stat. §§ 973.01(2)(b)3., (2)(d)2.
¶ 3 At the plea hearing, the prosecutor explained the parties' agreement: “At the time of sentencing the State's going to recommend 20 years in the Wisconsin State prison system bifurcated with ten years of initial confinement followed by ten years of extended supervision; and the defense would be free to argue.” The court also received a case consolidation document at that hearing, which set forth the same agreement.2 The plea questionnaire and waiver of rights form similarly provided: “the State will ... recommend 20 years (10 in/10 out); defense free to argue.” Further, during the plea colloquy, the court observed, “I have heard what the State's going to recommend.”
¶ 4 At the sentencing hearing five and one-half months later, a different prosecutor appeared on behalf of the State. The sentencing judge had presided at the plea hearing. The prosecutor commenced his remarks as follows, “I am asking the Court to impose a prison sentence that includes ten years of initial confinement.” He concluded his argument by stating,
¶ 5 Pittmon's counsel did not object, nor did she recount the terms of the plea agreement when offering her own sentencing recommendation. Prior to announcing the sentence, the court observed:
Nobody argues the fact that prison is the appropriate sentence. They simply argue the time. We certainly have a range in the recommendations. We have a six to eight-year initial confinement recommendation by Ms. Watkins [the alternative presentence author] with five to six years of extended supervision. We have a ten-year recommendation with ten years of extended supervision by the State. The presentence report prepared by the Department of Corrections recommends an initial incarceration period of 13 to 15 years followed by seven to eight years of extended supervision.
(Emphasis added.) The court then imposed a twenty-five-year sentence, consisting of fifteen years' initial confinement and ten years' extended supervision.
¶ 6 Pittmon moved for resentencing based on the State's failure to recommend ten years' extended supervision. At a hearing on the motion, Pittmon's prior attorney testified she believed the failure to object “was an oversight on [her] part and [she] did not realize that they had asked for something other than the plea agreement.” The prosecutor at the motion hearing, who was also the sentencing prosecutor, stated that although he had been involved in the plea negotiations, it appeared there was a “miscommunication ... in [his] own notes” in the case file.
¶ 7 The State argued the sentencing was not “defective because of what amounts really to a relatively inadvertent breach.” Alternatively, the State argued Pittmon failed to satisfy the prejudice prong of ineffectiveness of counsel, because the court “sentenced him to exactly the amount of extended supervision that was in the negotiation....” The circuit court determined there was not a substantial and material breach, explaining:
First of all, I took the plea in this case. I knew what the plea agreement was, ten in and ten out....
My inference from what [the prosecutor] said at the time of sentencing was [,] at the time of sentencing[,] and still is today[,] that [he] was actually suggesting he was not [wedded] necessarily to asking for ten years of extended. If the Court felt that something less than that was appropriate, then the Court should make that decision. He was not arguing for more than ten years. He was actually in my inference saying to the Court that if something less in the Court's estimation was appropriate that the Court might go ahead and do that. So I do not find his remarks were a substantial and material breach of this plea agreement.
Having found that, there is no ineffective assistance of counsel certainly. Lastly, there's absolutely no prejudice whatsoever to Mr. Pittmon in this case because this Court ordered ten years of extended supervision. Motion is denied.
Pittmon now appeals.
¶ 8 Pittmon argues the State materially and substantially breached the plea agreement when it failed to recommend ten years' extended supervision. This presents a question of law. See State v. Williams, 2002 WI 1, ¶ 2, 249 Wis.2d 492, 637 N.W.2d 733. A criminal defendant has a constitutional right to the enforcement of a negotiated plea agreement. State v. Howard, 2001 WI App 137, ¶ 13, 246 Wis.2d 475, 630 N.W.2d 244. Once a defendant has pled guilty, “due process requires that the defendant's expectations be fulfilled.” Id. (citing State v. Smith, 207 Wis.2d 258, 271, 558 N.W.2d 379 (1997)); see also Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) ().
¶ 9 It is well established that “[w]hen a prosecutor does not make the negotiated sentencing recommendation, that conduct constitutes a breach of the plea agreement.” Smith, 207 Wis.2d at 272, 558 N.W.2d 379 (citing State v. Poole, 131 Wis.2d 359, 364, 394 N.W.2d 909 (Ct.App.1986)); see also Williams, 249 Wis.2d 492, ¶ 38, 637 N.W.2d 733;State v. Duckett, 2010 WI App 44, ¶ 8, 324 Wis.2d 244, 781 N.W.2d 522. However, an actionable breach cannot be merely technical; rather, it must be material and substantial. 3Howard, 246 Wis.2d 475, ¶ 15, 630 N.W.2d 244. A material and substantial breach entitles a defendant to either vacation of the plea agreement or resentencing. Williams, 249 Wis.2d 492, ¶ 38, 637 N.W.2d 733. “A material and substantial breach is a violation of the terms of the agreement that defeats the benefit for which the accused bargained.” Id.; see also Smith, 207 Wis.2d at 272, 558 N.W.2d 379 (). A prosecutor's sentencing recommendation is a material and substantial term of the plea agreement. Smith, 207 Wis.2d at 272, 558 N.W.2d 379.
¶ 10 Further, we have explained:
When examining a defendant's allegation that the State breached a plea agreement, such as by making a different recommendation at sentencing, it is irrelevant whether the trial court was influenced by the State's alleged breach or chose to ignore the State's recommendation. See United States v. Clark, 55 F.3d 9, 13 (1st Cir.1995) (). Thus, the focus of the trial court's analysis for postconviction motions, and for this court on appeal, is whether the State breached the agreement and, if so, whether the breach was material and substantial, rather than whether the trial court was influenced by the breach.
Howard, 246 Wis.2d 475, ¶ 14, 630 N.W.2d 244;see also State v. Sprang, 2004 WI App 121, ¶ 24 n. 6, 274 Wis.2d 784, 683 N.W.2d 522 ().
¶ 11 Similarly, “[t]hat the prosecutor did not intend to breach the agreement or that a breach was inadvertent ‘does not lessen its impact.’ ” Williams, 249 Wis.2d 492, ¶ 38, 637 N.W.2d 733 (quoting Santobello, 404 U.S. at 262);see also Sprang, 274 Wis.2d 784, ¶ 24, 683 N.W.2d 522 (); Howard, 246 Wis.2d 475, ¶ 20, 630 N.W.2d 244 ().
¶ 12 The State contends its “obvious error and misstatement” was “no breach” of the plea agreement. It argues “the court effectively recognized, corrected, and cured the State's misstatement,” and, therefore, the “momentary misstatement could have had no effect.” 4 However, the State does not cite, much less discuss, a single legal authority or proposition of law in support of its position.5 Moreover, the State essentially ignores Pittmon's argument and the cases he relies on. We could reverse for these reasons alone. See State v. Flynn, 190 Wis.2d 31, 39 n. 2, 527 N.W.2d 343 (Ct.App.1994) (); Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis.2d 97, 109, 279 N.W.2d 493 (Ct.App.1979) (). However, as is apparent from the contrast with the legal propositio...
To continue reading
Request your trial