State v. Williams

• Decision Date: 27 December 2000
• Docket Number: No. 00-0535-CR.,00-0535-CR.
• Citation: 241 Wis.2d 1,2001 WI App 7,624 N.W.2d 164
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. John D. WILLIAMS, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

241 Wis.2d 1

2001 WI App 7

624 N.W.2d 164

STATE of Wisconsin, Plaintiff-Respondent,¹ v.John D. WILLIAMS, Defendant-Appellant.

No. 00-0535-CR.

Court of Appeals of Wisconsin.

Submitted on briefs October 2, 2000.

Decided December 27, 2000.

On behalf of the defendant-appellant, the cause was submitted on the briefs of John A. Pray of the Frank J. Remington Center, University of Wisconsin Law School, Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James H. McDermott, assistant attorney general, and James E. Doyle,attorney general.

Before Brown, P.J., Nettesheim and Snyder, JJ.

¶ 1.BROWN, P.J.

The issue in this case is whether the prosecutor violated her agreement to recommend probation and jail time for John D. Williams.We hold that she violated the agreement when she told the courtshe now had a negative impression of Williams based on information acquired subsequent to the plea agreement, adopted the same negative impressions expressed by the presentence investigation (PSI) writer and then gratuitously informed the court that the PSI writer recommended prison.The plea agreement was breached, the sentence is vacated and we remand for a new sentencing hearing.

¶ 2.Williams pled guilty to one count of failure to pay child support.As part of the plea agreement, the State agreed to recommend that Williams receive three years of probation, with the condition that he pay current support plus all arrearages, and serve sixty days in jail.But at the sentencing hearing, the prosecutor made the following comments, which we believe are important enough to repeat in full:

Judge, I believe that when Mr. Williams entered his plea that we had told the Court that we would be recommending a presentence investigation.And that we would be recommending that sentence be withheld for a period of three years — I am sorry, that he be placed on probation for a period of three years, that he pay arrearages and pay current child support.And then as a condition of the probation he be incarcerated in the county jail for a period of 60 days.

After reading through the presentence, it appears that I think I can best describe my impression of this defendant as manipulative and unwilling to take any responsibility.I have had an occasion to speak with Ms. Valerius [Williams's former wife].And she has indicated things that she will be presenting to the Court.But it was quite a contrast speaking with her and reading and learning about Mr. Williams.

Judge, when she speaks to you you are going to learn about a mother who has done everything she can for her daughter, has taken on the obligation, the responsibilities of raising a child, and had to do it on her own because [Williams] has done everything to completely do the opposite.He has taken on no real meaning in terms of creating a relationship.And you will learn of some of that later on.It's quite frankly disheartening and saddening to know that someone could have a daughter now who is 18. . . .

. . . .

[A]nd with all the opportunities to have a relationship, denied that.And it hasn't been because the mother has denied it[;] it is the defendant himself.He always had free access and chose . . . not to have a relationship.When we create life we have to take on the responsibility.You will also learn there was a time where through the Child Support Agency there were many efforts to get Mr. Williams to pay child support.We are talking about a nominal amount of money he was ordered to pay, $50 a week.I don't think any of us think that that's extravagant.That's just minimal.And he was working at a job earning $14 an hour, had health insurance, but yet never included his daughter on it.And you are going to learn of some health problems that the daughter has that the health insurance certainly would have been of great assistance.

When speaking with [Ms. Valerius], she informed me that at one point when she remarried to a very caring person who took on Mr. Williams' daughter as his own, and when they wanted to adopt her, Mr. Williams refused to give up his rights, but yet he wouldn't call, he didn't write, he didn't see, he wouldn't even pay the support for the daughter.It just is very frustrating to think that someone could completely walk away and be so uncaring about a child.

The presentence writer, we had a conversation on June 8th with her.She had indicated she would be in court, but I don't see that she has arrived.She had made a few comments that I will relay to the Court.Mr. Sisley had informed her that the defendant had claimed he had no means to contact an attorney before sentencing.She had indicated that she was aware that the defendant has a cell phone, and the defendant had been driving all around and has access to a vehicle.He has been arrested for operating while suspended in the past.And her last point was that if the defendant had told her, his agent, he could have used her phone to contact an attorney.She reiterated to Mr. Sisley that it was her belief that the defendant needs to go to prison.(Emphasis added.)

¶ 3.At this point, Williams objected on the grounds that these comments violated the plea agreement.The court agreed and then the prosecutor denied that the comments violated the agreement.Again, we will relate her comments:

I am in no means suggesting that I am asking the Court to adopt the agent's recommendation.I believe that the sentencing court should have all information necessary.And I am just merely relaying it.She had indicated she would be here, and that was the information she had given us.So again, I will reiterate, Judge, we are standing by our recommendation, and I have not changed that, and that's why I started off by saying we were recommending the three years probation.

¶ 4.The court did not thereafter issue a ruling on the objection but proceeded with the rest of the hearing.Williams's former wife then testified at some length about the lack of a relationship that Williams had with his daughter.At the conclusion of the hearing, the sentencing court indicated that it had read the PSI and stated that it is not often that it sentences contrary to a joint recommendation, but was going to do it here.The court sentenced Williams to eighteen months in prison.

[1, 2]

¶ 5.Whether the prosecutor violated the terms of a plea agreement is a question of law that we review de novo.SeeState v. Ferguson,166 Wis. 2d 317, 320-21, 479 N.W.2d 241(Ct. App.1991).A defendant has a constitutional right to have a negotiated plea agreement, which he or she relied on, enforced.SeeState v. Knox,213 Wis. 2d 318, 321, 570 N.W.2d 599(Ct. App.1997).

¶ 6.In State v. Poole,131 Wis. 2d 359, 389 N.W.2d 40(Ct. App.1986), this court discussed the problem with a prosecutor making negative comments at sentencing based on information acquired after the plea agreement.In that case, the prosecutor had agreed to recommend a fine for a burglary.Seeid. at 360.At sentencing, the prosecutor stood by that recommendation, but also pointed out that she was now aware of new information — that the defendant's probation was revoked in a separate case — but the agreement was entered into "before we knew of the other instances."Seeid.The Poole court cited several cases from other jurisdictions as part of its analysis and then wrote:

A comment which implies reservations about the recommendation `taint[s] the sentencing process' and breaches the agreement.

. . . .

We conclude that a prosecutor may not render less than a neutral recitation of the terms of the plea agreement.The recommendation in the case at hand fell below that standard.The prosecutor's comments implied that circumstances had changed since the plea bargain, and that had the state known of the other instances of defendant's misconduct, they would not have made the agreement they did.

Id. at 364.Poole indicates that while the prosecutor may inform the court about negative information acquired about the defendant after the plea agreement, if relevant to sentencing, the prosecutor may not imply that he or she has subsequently changed his or her mind about the plea.

[3]

¶ 7.We recognize that there is a fine line between presenting information to the court for its education and presenting information in a way that implies that the prosecutor has second thoughts about the agreement.Many courts have discussed the difficulty in discerning when the line is crossed such that the recommendation is no longer neutral.Some of these cases were discussed in Poole.These jurisdictions have construed comparable plea agreements liberally to favor the defendants.²As stated by the Minnesota Supreme Court in State v. Witte,245 N.W.2d 438, 439(1976):

Although the issue is not free from doubt, since it can be argued that the prosecutor presented information, not his personal recommendation, we think that in close cases plea agreements should be construed in favor of defendants.This practice best serves the important interest in fair, honest, and open plea bargaining as an integral part of the criminal justice system.

We agree with these jurisdictions and adopt the view that in close cases, the agreements should be construed in favor of the defendants.

[4]

¶ 8.A close reading of the above passage from Witte delineates a difference between presenting information that the prosecutor is not only free to do, but has a duty to do and making this information his or her "personal recommendation."We see this language as instructive.When a prosecutor has gathered negative information about the defendant, we should look at how the prosecutor used this information.In other words, we should look closely at whether the prosecutor used this information to imply a personal recommendation.¶ 9.In this case, the line was crossed.The prosecutor had no need to discuss the PSI or Valerius's testimony.The court already had the PSI in its possession;...