State v. Toliver
| Decision Date | 07 September 1994 |
| Docket Number | No. 93-1884-CR,93-1884-CR |
| Citation | 187 Wis.2d 346,523 N.W.2d 113 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Brian TOLIVER, Defendant-Appellant. d |
| Court | Wisconsin Court of Appeals |
Before SULLIVAN, FINE and SCHUDSON, JJ.
Brian Toliver appeals from a judgment of conviction for two counts of first-degree sexual assault, party to a crime, contrary to §§ 940.225(1)(c) and 939.05, STATS. He also appeals from an order denying his motion for postconviction relief.
Toliver raises three issues for our review. First, he argues that the trial court erred when it concluded that the State was unilaterally and fully discharged from the terms of a plea agreement. Second, Toliver argues he was denied effective assistance of counsel and that the trial court erred when it denied this claim without a Machner 1 hearing. Finally, he argues that the trial court erred when it refused to consider a disparity in the sentences of Toliver and his co-defendant as either a new factor justifying a sentence modification or a factor rendering the original sentence harsh and excessive. We affirm.
Toliver and a co-defendant, Deangelo Banks, were arrested for the sexual assault of a woman. They were prosecuted separately. Toliver was charged with four counts of first-degree sexual assault, party to a crime. The State and Toliver entered into a written plea agreement whereby Toliver agreed to testify against Banks, and to plead guilty to two counts of first-degree sexual assault. In exchange, the State agreed to dismiss the two remaining counts against Toliver and, on the two guilty-plea counts, either to recommend a term of eight years and a consecutive twenty-year term of probation, or to recommend imprisonment but leave the length of the imprisonment to the discretion of the trial court. The sentencing on these convictions would take place after Banks's prosecution was concluded, but before his sentencing.
Toliver pled guilty to the two counts, but then refused to testify against Banks. The trial court declared the plea agreement null and void. Toliver requested appointment of new counsel and withdrawal of his two pleas. The trial court granted his request for new counsel, but denied the withdrawal of the pleas until new counsel was appointed.
Toliver appeared for sentencing on the two counts, at which time his new counsel objected to the proceeding and stated that Toliver wished to withdraw his pleas, and that it was his counsel's belief that Toliver had not been fully informed of the consequences or details of the plea agreement. The trial court denied the motion to withdraw the pleas and set the matter over for sentencing. The court indicated that it would consider a written motion to withdraw the pleas, but one was never filed.
At his sentencing on the two counts, the State recommended consecutive terms of imprisonment, totalling ten to twelve years. The trial court, however, sentenced him to two consecutive seven-year prison terms instead. Toliver entered not guilty pleas to the remaining two counts and they were set for trial. These counts were later dismissed upon the motion of the State. Subsequent to Toliver's sentencing, Banks was convicted of four counts of first-degree sexual assault before a different trial court. That court sentenced Banks to seven years on each count. Three of the terms were concurrent to each other and were stayed. In addition, Banks was placed on ten years probation on these counts. The other seven-year term of incarceration, however, was not stayed.
Toliver filed a postconviction motion for sentence modification, alleging that his guilty pleas to the two counts of sexual assault constituted partial performance of the plea agreement that in turn obligated the State to perform its portion of the agreement allegedly
tied to the guilty pleas (i.e., the sentencing recommendation). Additionally, Toliver alleged that the State's recommendation of consecutive twelve-year sentences was a breach of the agreement and, therefore, Toliver requested resentencing as a remedy for the breach. Toliver's postconviction motion also requested resentencing on the grounds that his sentence was harsh and excessive, and in the alternative, he requested a sentence modification on the grounds that the disparity between Banks's and his sentences constituted a new factor. Toliver requested hearings to determine whether: (1) he was entitled to resentencing because the State breached the plea agreement; (2) his sentence was harsh and excessive; (3) he was denied effective assistance of counsel; and (4) he was entitled to a sentence modification. By written order and without a hearing, the trial court denied Toliver's motion. He appeals.
Toliver makes three disparate arguments concerning the plea agreement. First, he argues that if the plea agreement was rendered null and void by his failure to testify against Banks, then the agreement was void both as to the State and as to him. He asserts, therefore, that he should have been permitted to withdraw his guilty pleas. Second, he argues that his two guilty pleas constituted partial performance of the plea agreement and, therefore, the State was obligated to give its sentencing recommendation on those two counts. Toliver argues that because the State did not give the agreed upon sentencing recommendation, it breached that portion of the plea agreement and, thus, Toliver is entitled to resentencing as a remedy for the State's breach. Finally, he asserts his due process rights were violated when the trial court allowed the State to fully withdraw from the plea agreement without a hearing to determine what the appropriate remedy was for Toliver's breach of the agreement.
We have stated that a plea agreement is analogous to a contract and, therefore, we draw upon contract law principles to interpret a plea agreement. State v. Windom, 169 Wis.2d 341, 348, 485 N.W.2d 832, 835 (Ct.App.1992). Construction of a written contract is a question of law we review de novo. Leitzke v. Magazine Marketplace, Inc., 168 Wis.2d 668, 673, 484 N.W.2d 364, 366 (Ct.App.1992). Furthermore, when terms of a contract are plain and unambiguous, we will construe the contract as it stands. Borchardt v. Wilk, 156 Wis.2d 420, 427, 456 N.W.2d 653, 656 (Ct.App.1990). The analogy to contract law, however, is not entirely dispositive because a plea agreement also implicates a defendant's due process rights. State v. Rivest, 106 Wis.2d 406, 413, 316 N.W.2d 395, 399 (1982).
Toliver asserts that a proper construction of the plea agreement requires that we find the agreement void as to both parties. We disagree.
The unambiguous language of paragraph ten prescribes exactly what was to transpire in the event Toliver refused to testify against Banks:
10. In the event that Brian Toliver refuses to testify at the trial of Deangelo Banks or at any proceeding ... against Deangelo Banks in which the State requires his testimony; ... this agreement shall be null and void and the State of Wisconsin will be free to recommend any period of incarceration, including the maximum period of incarceration when Brian Toliver is sentenced for the offenses of First Degree Sexual assault and or to proceed against him in any other charges it deems appropriate under the circumstances, including the two charges of First Degree Sexual assault ... for which he has not pled guilty.
Toliver agreed to the provisions of paragraph ten. Furthermore, at the hearing where Toliver refused to testify against Banks and prior to declaring that Toliver had breached the agreement, the trial court read paragraphs ten and fifteen 2 to Toliver to ensure he understood the consequence of his refusal to testify. As we stated in Dykstra v. Arthur G. McKee & Co., 92 Wis.2d 17, 38, 284 N.W.2d 692, 702-03 (Ct.App.1979), aff'd, 100 Wis.2d 120, 301 N.W.2d 201 (1981), we may not use rules of contract construction to revise an unambiguous contract in order to relieve parties to a contract "from any disadvantageous terms" to which they have agreed.
We also conclude that Toliver's due process rights are not violated by this construction of the plea agreement. The supreme court stated in Rivest that the constitutional due process requirements of "decency and fairness" are satisfied if the party seeking to vacate a plea agreement establishes that there is a material and substantial breach of the agreement. Rivest, 106 Wis.2d at 414, 316 N.W.2d at 399. Toliver concedes in his appellate brief that his refusal to testify was a material breach of the agreement. We agree and therefore conclude that the due process requirements are satisfied.
Toliver additionally asserts that his guilty plea to the two counts constituted partial performance of the plea agreement, and therefore, the State was obligated to specifically perform the agreed upon sentencing recommendations. Toliver then posits that because the State did not comply with the sentencing recommendation, the State breached the agreement and he is therefore entitled to a new sentencing hearing. We reject this argument.
As the supreme court stated in Rivest: "To allow a defendant to claim the benefit of an agreement where, he, himself is in default, offends fundamental concepts of honesty, fair play and justice." Id. The State did not breach the agreement, Toliver did. The State was following the sanction proviso of paragraph ten when it gave its sentencing recommendation. Thus, to allow Toliver to claim the benefit of a new sentencing hearing when he breached the agreement offends the fundamental concepts of Rivest.
Toliver asserts his due process rights were violated when the trial court allowed the State to withdraw from the plea agreement without a hearing to determine what the appropriate...
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