State v. Robinson, 00-2435-CR.
| Decision Date | 29 January 2002 |
| Docket Number | No. 00-2435-CR.,00-2435-CR. |
| Citation | 2002 WI 9,249 Wis.2d 553,638 N.W.2d 564 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Robert S. ROBINSON, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
For the defendant-appellant there were briefs by Leonard D. Kachinsky and Kachinsky & Petit Law Offices, Neenah, and oral argument by Leonard D. Kachinsky.
For the plaintiff-respondent the cause was argued by Michael R. Klos, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
¶ 1.
This appeal from a judgment of conviction and an order of the circuit court comes to this court upon certification by the court of appeals pursuant to Wis. Stat. (Rule) § 809.61 (1999-2000).1 The Circuit Court for Winnebago County, Bruce K. Schmidt, Judge, entered a judgment of conviction on two counts of recklessly endangering safety and an order denying a postconviction motion by the defendant Robert S. Robinson. The defendant had sought to set aside one of the two counts to which he had pled no contest pursuant to a negotiated plea agreement. The defendant's postconviction motion claimed that the two counts were multiplicitous, violating his state and federal constitutional guarantees against double jeopardy.2 The defendant appealed the judgment of conviction and the order denying his post-conviction motion.
[1]
¶ 2. The question of law raised on appeal is what is the appropriate remedy when an accused is convicted on the basis of a negotiated plea agreement and the counts later are determined to be multiplicitous, violating the accused's state and federal constitutional guarantees against double jeopardy? This court determines this question of law independently of the circuit court but benefiting from its analysis.
¶ 3. We conclude that when an accused successfully challenges a plea to and conviction on one count of a two-count information on grounds of double jeopardy and the information has been amended pursuant to a negotiated plea agreement by which the State made charging concessions, ordinarily the remedy is to reverse the convictions and sentences, vacate the plea agreement, and reinstate the original information so that the parties are restored to their positions prior to the negotiated plea agreement. We further conclude, however, that under some circumstances this remedy might not be appropriate. A court should, therefore, examine the remedies available and adopt one that fits the circumstances of the case after considering both the defendant's and the State's interests. Under the circumstances of the present case, we reverse the judgment of conviction and the order of the circuit court and remand the cause to the circuit court with directions to reinstate the original information against the defendant and to conduct further proceedings not inconsistent with this decision.
¶ 4. The facts of this case are undisputed for purposes of this appeal. On May 19, 1999, the defendant struck Norman Elsinger, who was attempting to break up a barroom fight.3 The victim suffered a severe brain injury and required hospitalization.
¶ 5. A complaint was filed on June 25, 1999, charging the defendant with one count of aggravated battery as a party to the crime in violation of Wis. Stat. § 940.19(5) (a class C felony) and one count of recklessly endangering safety as a party to the crime in violation of § 941.30(1) (a class D felony). The complaint alleged that the defendant was a repeat offender under § 939.62(1)(b). The State subsequently filed an information containing the same charges as those in the complaint.
¶ 6. The State and the defendant entered into a negotiated plea agreement. Under the agreement, the State amended the information to reduce the original count of aggravated battery to one count of recklessly endangering safety, to retain the original count of recklessly endangering safety, and to eliminate the repeat offender allegations. The amended information reduced the defendant's exposure from 27 years in state prison to ten years. In addition, the State agreed to recommend an imposed and stayed two-year prison sentence, probation, eight months in jail as a condition of probation, and restitution.
¶ 7. In exchange for the State's concessions, the defendant agreed to enter pleas of no contest to the two counts of recklessly endangering safety as a party to the crime.4
¶ 8. The defendant filed a signed Plea Questionnaire/Waiver of Rights form with the circuit court. The circuit court engaged the defendant in a colloquy regarding the plea agreement, accepted the defendant's pleas, and ordered a presentence investigation. On March 16, 2000, the circuit court sentenced the defendant to five years in prison on each count of recklessly endangering safety, the sentences to be served consecutively.
¶ 9. On July 19, 2000, the defendant filed a postconviction motion for relief, alleging that the two counts of recklessly endangering safety were identical in both fact and law and that the defendant's convictions on the two counts violated the double jeopardy clauses of the state and federal constitutions. The defendant requested that the circuit court vacate his conviction and sentence on one of the two counts of recklessly endangering safety and leave standing the conviction and sentence on the other count. The effect of granting the defendant's motion would be to subject the defendant to a single five-year sentence in prison for one count of recklessly endangering safety. ¶ 10. The circuit court denied the defendant's motion, ruling that the defendant had waived his right to challenge his convictions and the plea agreement, even on constitutional grounds, because he entered a knowing and voluntary plea to both counts of recklessly endangering safety, had been represented by counsel throughout the proceedings, had engaged in a colloquy with the circuit court, and had signed the Plea Questionnaire/Waiver of Rights form. The defendant appealed the judgment of conviction and the order denying the post-conviction motion, and this court accepted certification of the appeal.
¶ 11. The parties agree on two propositions of law that are not briefed or argued before this court on this appeal. Therefore, we do not address these issues, but set them forth to put this appeal in context.
¶ 12. First, the parties agree that on the facts of the present case the amended information to which the defendant pled no contest pursuant to the negotiated plea agreement was multiplicitous and violated the double jeopardy provisions of both the state and federal constitutions. The double jeopardy violation did not arise from the original complaint or information, but rather from the negotiated plea agreement that contained two identical counts of recklessly endangering safety for the same criminal conduct.
[2]
¶ 13. Second, the parties agree that the defendant's plea of no contest did not waive the defendant's right to bring a post-conviction motion to challenge his conviction on double jeopardy grounds. The parties agree that a simple entry of a guilty plea does not waive the constitutional defect of double jeopardy.5 An express waiver of a double jeopardy claim in a plea agreement is needed for a waiver of a double jeopardy claim.6
¶ 14. The parties agree that the defendant did not expressly waive his double jeopardy claim and, therefore, his no-contest plea and conviction on the two counts of recklessly endangering safety did not waive his double jeopardy claim in the present case.
¶ 15. The parties disagree about one issue of law—the remedy in the present case. They correctly point out that there is no direct precedent in Wisconsin regarding the appropriate remedy when an accused is convicted on the basis of a negotiated plea agreement and the counts in the agreement and conviction are later determined to be multiplicitous, violating the accused's state and federal constitutional guarantees against double jeopardy.
¶ 16. The parties' disagreement about the appropriate remedy in the present case stems from their disagreement about the proper characterization of the present case.
¶ 17. The defendant focuses on the constitutional infirmity of the judgment of conviction. He characterizes the present case as one in which the amended information and resulting judgment of conviction include a constitutionally invalid count, rendering void the conviction and sentence on that count. According to the defendant, the other count is valid, and the conviction on that count should stand, leaving intact a five-year sentence.
[3]
¶ 18. In contrast, the State focuses on the defendant's repudiation of the negotiated plea agreement. The State compares the present case to those in which a plea agreement has been breached.
¶ 19. Numerous cases have stated that when the breach of a plea agreement is material and substantial,7 a plea agreement may be vacated or an accused may be entitled to resentencing.8 These cases demonstrate that the remedy for a breach of a plea agreement depends on the nature of the breach and the totality of the circumstances.
[4]
¶ 20. The defendant's repudiation of the plea agreement is a substantial and material breach of the plea agreement because it deprives the State of the benefit for which it bargained, namely, the defendant's conviction on two counts of recklessly endangering safety that exposes the defendant to a maximum sentence of ten years in prison. The State argues that because the defendant is reneging on the plea agreement, the plea agreement should be vacated. The State urges that the remedy in the present case is to reverse the conviction, vacate the plea agreement, reinstate the original information, and restore the parties to their positions before the execution of the invalid plea agreement. According to the State, resentencing would not be a meaningful remedy in the present case becaus...
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