State v. Williams

Decision Date03 January 2002
Docket NumberNo. 00-0535-CR.,00-0535-CR.
Citation637 N.W.2d 733,249 Wis.2d 492,2002 WI 1
PartiesSTATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. John D. WILLIAMS, Defendant-Appellant.
CourtWisconsin Supreme Court

For the plaintiff-respondent-petitioner the cause was argued by Sandra L. Nowack, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.

For the defendant-appellant there was a brief by John A. Pray and the Frank J. Remington Center, Madison, and oral argument by John A. Pray.

¶ 1. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

This is a review of a published decision of the court of appeals, State v. Williams, 2001 WI App 7, 241 Wis. 2d 1, 624 N.W.2d 164 (Ct. App. 2000). The court of appeals reversed a judgment of the Circuit Court for Ozaukee County, Tom R. Wolfgram, Circuit Court Judge, which had denied the motion of John D. Williams, the defendant, for resentencing. The circuit court denied the defendant's motion for post-conviction relief, concluding that the State did not breach the plea agreement at the sentencing proceeding. The court of appeals reversed the judgment of the circuit court, concluding that the State did breach the plea agreement at the sentencing proceeding, and remanded the cause for resentencing.

¶ 2. Two issues are presented in this case. First, what standard of review applies in breach of plea agreement cases? We conclude that the terms of the plea agreement and the historical facts of the State's conduct that allegedly constitute a breach of a plea agreement are questions of fact. We further conclude that whether the State's conduct constitutes a breach of a plea agreement and whether the breach is material and substantial are questions of law.

¶ 3. Second, did the State breach the plea agreement in the present case and was the breach material and substantial? Whether a plea agreement has been breached is a question of law. We conclude as a matter of law that the State breached the plea agreement in a material and substantial manner. We therefore affirm the decision of the court of appeals that the cause should be remanded to the circuit court for resentencing.

I

¶ 4. Our first inquiry is the standard of review this court applies in breach of plea agreement cases. This court clearly set forth the standard of review an appellate court is to apply in State v. Wills, 193 Wis. 2d 273, 277, 533 N.W.2d 165 (1995).

¶ 5. According to the Wills case:

(1) The terms of the plea agreement and the historical facts of the State's conduct that allegedly constitute a breach of a plea agreement are questions of fact.1 An appellate court reviews the circuit court's findings of fact under the clearly erroneous standard of review.2
(2) Whether the State's conduct constitutes a breach of a plea agreement is a question of law.3 The Wills case does not explicitly address the standard to be used to review the issue of whether a breach is material and substantial. When a breach is material and substantial, a plea agreement may be vacated4 or resentencing ordered.5 We conclude that the question of material and substantial breach is one of law because the court is determining whether the facts fulfill a particular legal standard.6 This court determines questions of law independently of the circuit court and court of appeals, but benefiting from their analyses.
(3) Some breach of plea agreement cases present both disputed questions of fact and questions of law. In such cases, this court reviews the facts under a clearly erroneous standard of review and then determines questions of law independent of the circuit court and court of appeals, but benefiting from their analyses.7

¶ 6. The parties appear to agree that the Wills case has set forth the appropriate standard of review in breach of plea agreement cases. But the parties disagree about two issues that are tangentially related to the standard of review and that are related to each other: the "clear and convincing evidence" rule and the "close case" rule. We do not adopt either of these rules because they would incorrectly apply an evidentiary standard for the burden of persuasion as a standard of review for questions of law.

¶ 7. The first issue tangentially related to the standard of review is the "clear and convincing evidence" rule. Several cases both before and after Wills appear to promulgate a clear and convincing evidence burden of persuasion. These cases declared that a defendant who asserts a breach of a plea agreement must show, "by clear and convincing evidence, not only that a breach occurred, but also that it was material and substantial."8

¶ 8. This language intimates that whether a breach exists and whether the breach is material and substantial are questions of fact to be proved by clear and convincing evidence. Indeed in State v. Jorgensen, 137 Wis. 2d 167, 169, 404 N.W.2d 66 (Ct. App. 1987), the court of appeals unambiguously stated that "whether a breach of contract exists involves a question of fact." Other court of appeals cases, however, both before and after Jorgensen, viewed the question of whether the State breached the plea agreement as a question of law.9 In State v. Ferguson, 166 Wis. 2d 317, 320-21, 479 N.W.2d 241 (Ct. App. 1991), a decision rendered after the Jorgensen case and without citing Jorgensen, the court of appeals declared that whether the State's conduct breached the terms of the plea agreement is a question of law reviewed de novo.10

¶ 9. The Jorgensen and Ferguson cases cannot be readily reconciled.11 Indeed the State's brief in Wills called the court's attention to this conflicting line of cases that promulgated two different standards of review and argued in favor of the standard of review that the Wills court adopted.

¶ 10. The Wills decision explicitly declares that determining the existence of a breach is a question of law, resolving the two different standards of review set forth in prior cases. Wills cites Jorgensen for the proposition that when there is a dispute about facts, then the appellate court gives deference to the factual findings of the circuit court unless clearly erroneous.12 It cites Ferguson for the proposition that when there are no disputed facts on appeal, the question of whether the State breached the terms of the agreement is a question of law that is determined de novo.13 Wills then concludes that if there is both a disputed question of fact and a question of whether the facts establish a breach, the court must first review the facts under the clearly erroneous standard of review and then determine as a matter of law under a de novo standard of review whether the State breached the terms of the plea agreement.14 ¶ 11. Nevertheless, the clear and convincing evidence language continued to have vitality after Wills15 and is discussed by the parties in the present case.

[1]

¶ 12. The State's brief in the present case recognizes that clear and convincing evidence ordinarily describes the middle burden of persuasion imposed on a party who has the obligation to prove facts, but concludes that the language has significance for appellate review even though Wills sets forth the controlling standard of review.16 The clear and convincing evidence burden of persuasion describes the affirmative proof a party must produce to establish a fact at issue. The clear and convincing evidence burden is directed to the trier of facts in the circuit court; the clear and convincing evidence burden is not ordinarily a standard of review for an appellate court in determining questions of law.17

¶ 13. The State interprets the clear and convincing evidence language used in several cases relating to breach of plea agreements to mean that the defendant must clearly and convincingly persuade this court of the correctness of his position on the questions of law involved in the present case. According to the State, the clear and convincing evidence rule provides guidance to the court concerning the degree of confidence the court should have in its legal conclusions when the issues are whether a party has breached a plea agreement and whether the breach is material and substantial. The State urges that for the defendant to succeed in the present case, this court must be persuaded clearly and convincingly that the State breached the plea agreement and that the breach was material and substantial.18

¶ 14. The State argues that this burden of persuasion for the questions of law is correct because it furthers the public policy favoring finality of judgments, the free flow of information to sentencing courts, the legislative directive protecting rights of crime victims, and the importance of negotiated pleas in efficiently disposing of criminal cases while protecting the public.

[2]

¶ 15. We are not convinced by the State's argument. Determinations of questions of law are not ordinarily discussed in terms of a burden of persuasion. Furthermore, the State's principal reason for applying the clear and convincing burden of persuasion to these questions of law, namely, to support finality of judgments, is not persuasive. Finality is an important value in criminal cases, as the State argues, but finality must be balanced against an accused's due process right to the benefit of a plea agreement. The State does not offer an explanation, and we cannot think of one, to justify why the values explicated by the State should outweigh, as a matter of law, an accused's due process rights. Accordingly, we do not graft the clear and convincing evidence burden of persuasion to the standard of review applied to questions of law in breach of plea agreement cases.

[3]

¶ 16. The second issue tangentially related to the standard of review and to the clear and convincing evidence rule is the "close case" rule, sometimes referred to as the "close call" rule. The State's principal objection to the court of appeals' decision in the present case is to the court...

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