State v. Rivest
| Decision Date | 02 March 1982 |
| Docket Number | No. 80-1365-CR,80-1365-CR |
| Citation | 316 N.W.2d 395,106 Wis.2d 406 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Alan Wayne RIVEST, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
Martin I. Hanson, Racine (argued), for defendant-appellant; Thomas P. Tofte and Schwartz, Weber & Tofte, and Hanson & Gasiorkiewicz, Racine, of counsel.
David J. Becker, Asst. Atty. Gen. (argued), for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.
This case is before this court on certification from the court of appeals to review an order of the Circuit Court for Racine County, Hon. Richard G. Harvey, Jr., presiding. The defendant-appellant, Alan Rivest, appeals from an order granting the state's motion to vacate a plea agreement entered on February 6, 1979.
On the afternoon of June 5, 1978, Floyd Jensen was murdered and robbed in his gasoline service station in Caledonia, Wisconsin. Shortly after the murder-robbery, Alan Rivest surrendered to police. Rivest, in a statement given to the police, admitted participating in the robbery of the gas station owner, but denied any involvement in his subsequent murder. Rivest indicated in his statement that Edward Rodriguez, his accomplice, repeatedly stabbed Jensen during the robbery and that he did not participate therein and that he fled the gas station before Rodriguez but after the stabbing.
Later that same evening on June 5, 1978, Rivest signed a sworn statement dictated to the police in which he repeated his earlier statement and denied any involvement in the stabbing of Floyd Jensen.
Rivest, a minor, was initially charged with delinquency for the murder and armed robbery of Floyd Jensen in the juvenile court and was subsequently waived into adult court on August 1, 1978. After his waiver into adult court, Rivest was not charged with being a party to first-degree murder. Thomas Finley, the assistant district attorney handling the case, agreed with Rivest and his attorney that the state would withhold the murder charge pending the completion of a final plea agreement. Based upon Rivest's prior statements and his investigation, Assistant District Attorney Finley charged Rivest only with the crime of armed robbery on August 3, 1978.
On September 25, 1978, Rivest took a private polygraph examination which indicated that he was truthful in his denial of any participation in the stabbing of Floyd Jensen. The results of the polygraph examination were presented to the assistant district attorney. Subsequent negotiations between Rivest, his attorney and the Assistant District Attorney Finley produced a plea agreement. In the plea agreement, Rivest agreed to (1) plead guilty to a charge of robbery; (2) testify against Rodriguez whenever requested; and (3) pass a second polygraph examination conducted by a party chosen by the district attorney. On January 24, 1979, Rivest took the second polygraph examination conducted by the police and the test indicated that Rivest was unaware that an assault was to be perpetrated on Jensen, and did not participate in stabbing Jensen.
At a hearing on February 6, 1979, the plea agreement entered into between Rivest and the assistant district attorney was placed on the record and Rivest pled guilty to the crime of robbery, reduced from armed robbery, and was convicted on that plea. Rivest was sentenced to six years in prison and is presently serving that sentence.
On February 19, 1979, Rivest testified at the preliminary hearing of Edward Rodriguez. At the hearing, Rivest testified that he never got near Jensen nor did he come in physical contact with him. He also testified that he ran "straight out across the street" shortly after Rodriguez stabbed Jensen.
Subsequent to Rivest's testimony at the preliminary hearing, the district attorney, Dennis Barry, while preparing the Rodriguez murder file, reviewed evidence which he believed directly contradicted both Rivest's initial statements to the police and his testimony at the preliminary hearing. This evidence established that there was a three to five minute delay between the time Jensen's body was discovered and the time that witnesses saw Rivest and Rodriguez flee the scene together. The evidence also proved that a "herringbone pattern" on the forehead of the victim matched the "herringbone pattern" on Rivest's shoes, but not Rodriguez' shoes. Finally, a State Crime Lab report indicated that the large bloodstains present on Rivest's pants and undershorts matched the blood type and factors of Floyd Jensen.
Based upon this evidence, District Attorney Barry interviewed Rivest and confronted him with this evidence. At that interview, Rivest admitted leaving the gas station by a different door than the one he had originally testified he exited from. However, Rivest offered no explanations for the presence of his shoe print on the deceased's head nor the presence of the deceased's blood on his clothing and he continued to reiterate his former account of the stabbing.
District Attorney Barry concluded after the interview that Rivest's account of the circumstances surrounding the stabbing were untrue, and that his prior and continued statements and testimony were false and thus, he breached the plea agreement. Based upon this evidence, District Attorney Barry decided not to present Rivest's testimony at the Rodriguez trial.
Thereafter, on August 21, 1979, the state filed first-degree murder charges against Rivest. The same day, the defendant secured a writ of habeas corpus from Circuit Judge John C. Ahlgrimm to bar prosecution of the first-degree murder charge. After holding extensive hearings on the matter, Judge Ahlgrimm ruled that before the murder charge could be prosecuted, the state would have to secure an order vacating the plea agreement from the judge who originally approved the plea agreement.
The state then filed a motion before Judge Harvey to vacate and set aside the plea agreement and guilty plea. After hearings and arguments, Judge Harvey entered an order setting aside the plea agreement and guilty plea and authorized the state to continue the prosecution of the murder complaint. The court held that Rivest had fraudulently induced the state to enter into the plea agreement through his false and misleading statements and had materially breached the agreement by giving false testimony at Rodriguez' preliminary hearing.
The court of appeals granted a permissive appeal from this order, pursuant to sec. 809.50, Stats., and petitioned this court for certification.
1. Did Rivest materially breach the plea agreement entered on February 5, 1979, by giving false testimony at Rodriguez' preliminary hearing?
2. Did Rivest fraudulently induce the state to enter into the plea agreement?
Breach of Plea Agreement
This case raises issues concerning both the standard for setting aside a plea agreement and the procedure to be employed where the state seeks to vacate a plea agreement after a defendant has commenced serving the sentence imposed. These are questions of first impression in Wisconsin, although decisions of several other jurisdictions have established procedures and standards for vacating plea agreements previously approved by a court.
The Supreme Court of Nevada in the decision of Gamble v. State, 604 P.2d 335 (Nev.1979), summarized the procedure applicable when the state seeks to be released from its obligations under a plea bargain:
"... Id. at 337.
The rationale underlying this requirement of an evidentiary hearing concerning the alleged breach of a plea agreement has been summarized in the following manner:
United States v. Simmons, 537 F.2d 1260 (4th Cir. 1976). (Emphasis supplied).
In the case at bar, several days of hearings were held to establish both the terms of the plea agreement entered into by Alan Rivest and the breach of that agreement before Judge Ahlgrimm in the habeas corpus action. By stipulation of the parties, the transcript of these proceedings and the evidence presented therein were used as the basis for Judge Harvey's decision of the state's motion to vacate the plea agreement. 1 Based upon this testimony and evidence, Judge Harvey, who had initially approved the plea agreement, held that the evidence established beyond a reasonable doubt that Rivest had fraudulently induced the plea agreement and had breached its terms. Thus, we hold that the extensive proceedings before Judge Harvey satisfied the procedural requirement of an evidentiary hearing establishing the grounds for vacating a plea agreement.
We next address the question of the appropriate standard to be applied in determining whether a...
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