State v. Windom

• Citation: 485 N.W.2d 832,169 Wis.2d 341
• Decision Date: 05 May 1992
• Docket Number: No. 91-1938-CR,91-1938-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Lance D. WINDOM, Defendant-Appellant. d
• Court: Court of Appeals of Wisconsin

Page 832

485 N.W.2d 832

169 Wis.2d 341

STATE of Wisconsin, Plaintiff-Respondent, v. Lance D. WINDOM, Defendant-Appellant. ^d

No. 91-1938-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 4, 1992.

Opinion Released May 5, 1992.

Opinion Filed May 5, 1992.

For the defendant-appellant the cause was submitted on the briefs of Mary E Waitrovich, First Asst. State Public Defender, of Madison, Wisconsin.

For the plaintiff-respondent the cause was submitted on the briefs of James E. Doyle, Atty. Gen., with David J. Becker, Asst. Atty. Gen., of Madison, Wisconsin.

Before MOSER, P.J., and SULLIVAN and FINE, JJ.

SULLIVAN, Judge.

Lance D. Windom appeals from a judgment of conviction and from an order denying both his postconviction motion to vacate the sentence ordered after his parole revocation and his motion for resentencing before a different judge. Windom complains that his right to effective assistance of counsel, guaranteed by U.S. Constitution Amendment VI and by Wisconsin Constitution Article I, Section 7, was violated when his attorney failed to object to the State's breach of a plea agreement when it made a sentence recommendation at the resentencing hearing. We conclude that the State did not breach the plea agreement, and therefore, Windom's counsel was not ineffective. Accordingly, we affirm.

I.

The undisputed facts of record reveal that Windom was arrested for burglary of a jewelry store on October 31, 1989. On his plea of guilty, Windom was convicted on March 12, 1990, of burglary, party to a crime, in violation of secs. 943.10(1)(a) and 939.05, Stats., respectively. A plea agreement between the State and Windom provided that Windom would plead guilty to the burglary charge and the State in turn would not make a sentence recommendation to the sentencing court. The court withheld prison sentence, placed Windom on probation for three years, and ordered him to serve thirty days in the House of Correction as a condition of probation. The State honored its agreement by remaining silent.

On April 19, 1990, Windom was charged with armed robbery and was subsequently sentenced to five years of incarceration. ¹ Windom's probation was revoked. ² On October 31, 1990, Windom reappeared before the circuit court for resentencing on the burglary charge. The State recommended that any sentence ordered by the court on the burglary conviction should be consecutive to the sentence imposed for the armed robbery offense because a concurrent sentence would unduly reward Windom for engaging in illegal conduct during his probation. The circuit court sentenced Windom to eighteen months imprisonment for the burglary conviction consecutive to the five-year sentence for the armed robbery. Windom's counsel made no objection to the State's consecutive-sentence recommendation.

The facts further show that the prosecuting attorney, by letter dated November 14, 1989, to Windom's attorney, stated:

If your client wishes to resolve this case short of trial, please be informed that upon a plea of guilty the State will be making no specific recommendation but leaving [sic] sentencing up to the court. Please let me know as soon as possible whether or not this will be a trial or a plea so that I may recall my witnesses.

Both Windom and the State, in the circuit court and on appeal, agree that this letter is the only documented evidence of the plea agreement.

II.

This appeal raises the question of whether the burglary charge plea agreement was ambiguous and whether the State violated it when it recommended, on resentencing for the burglary, that its term run consecutive to the sentence for the subsequent armed robbery conviction.

Windom contends that his counsel's failure to object violated his constitutional rights and entitles him to a new sentencing hearing before a different judge. He also seeks specific performance of the plea agreement through a resentencing on the burglary conviction. Windom asserts that the assistant district attorney's letter outlining the terms of the plea agreement was ambiguous. Windom argues that "sentencing" in the State's promise not to make a "specific recommendation but leaving sentencing up to the court" is ambiguous. Windom asserts that a plea agreement is a contract that is constitutionally based and that it is the State's burden to insure that the terms of the agreement are unambiguous, citing United States v. Harvey, 791 F.2d 294, 300-01 (4th Cir.1986). Windom concludes that an ambiguity should be construed against the government and in favor of a defendant. See id. at 301.

Relying upon United States v. Ewing, 480 F.2d 1141 (5th Cir.1973), Windom asserts that the initial probation sentence on the burglary conviction and the sentence after probation revocation "were integral parts of the sentencing process." Id. at 1143. Ewing, as did Windom, entered a plea of guilty "in the expectation that the benefits of [the State's] promise would be available throughout the proceedings relevant to the determination of his sentence. The Government was obligated to fulfill its commitment at least until the question of Ewing's sentence was finally resolved by the sentencing judge." Id. ³ Windom also cites State v. Wills, 244 Kan. 62, 765 P.2d 1114 (1988), for the proposition that absent a provision in the plea agreement enabling the State to argue a different sentencing recommendation in a hearing for sentence modification, "the defendant would reasonably expect the State to be bound by its promise at all hearings which affect the determination of his sentence." Id. 765 P.2d at 1119-20.

The State argues that a defendant bears the "burden ... to show, by clear and convincing evidence, not only that a breach had occurred, but also that it was material and substantial," citing State v. Jorgensen, 137 Wis.2d 163, 168, 404 N.W.2d 66, 68 (Ct.App.1987). The State asserts that Windom did not sustain this burden of proof. Citing several federal circuit court opinions, ⁴ the State also asserts that since a court must ascertain what the parties "reasonably understood" the plea agreement provisions to mean, Windom did not sustain his burden of proving that his interpretation of the plea agreement was reasonable. The State postulates: "[w]hat right-thinking prosecutor would commit himself or herself to a particular course of action that might turn out to be wholly inappropriate in light of subsequent developments ... ?"

III.

Existing state and federal law provides that:

Plea bargaining has been recognized as an "essential component of the administration of justice." Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971); State ex rel. White v. Gray, 57 Wis.2d 17, 21, 203 N.W.2d 638, 640 (1973). As an important phase in the process of criminal justice, plea bargaining must be attended by procedural safeguards to ensure that a defendant is not treated unfairly. Santobello, 404 U.S. at 262, 92 S.Ct. at 499. Thus, when a defendant pleads guilty to a crime pursuant to a plea agreement and the prosecutor fails to perform his part of the bargain, the defendant is entitled to relief. Santobello, 404 U.S. at 262, 92 S.Ct. at 499.

State v. Beckes, 100 Wis.2d 1, 3-4, 300 N.W.2d 871, 872-73 (Ct.App.1980) (footnote

omitted), review denied, 100 Wis.2d 750, 308 N.W.2d 417 (1980).

A plea agreement is analogous to a contract and we therefore draw upon contract law principles for its interpretation. ⁵ Jorgensen, 137 Wis.2d at 167, 404 N.W.2d at 68. The law in Wisconsin is that unambiguous contractual language must be enforced as it is written. Dykstra v. Arthur G. McKee & Co., 92 Wis.2d 17, 38, 284 N.W.2d 692, 702-703 (Ct.App.1979) (citation omitted), aff'd, 100 Wis.2d 120, 301 N.W.2d 201 (1981). contractual language is ambiguous only when it is "reasonably or fairly susceptible of more than one construction." Borchardt v. Wilk, 156 Wis.2d 420, 427, 456 N.W.2d 653, 656 (Ct.App.1990). Construction of a contract, including the determination of whether its terms are ambiguous, is a legal matter that we decide de novo. Ibid. We may not use the mechanism of construction to revise an unambiguous contract in order to relieve a party to a contract "from any disadvantageous terms" to which he or she has agreed. Dykstra, 92 Wis.2d at 38, 284 N.W.2d at 703.

We determine that the plea agreement for the burglary charge was not ambiguous. The meaning of "sentencing," as used in the State's letter to Windom's counsel, is limited to that event which Windom was sentenced to probation and thirty days of incarceration as a condition of probation. If Windom understood the plea agreement to include all sentencings stemming from the burglary charge, then he should have evidenced such an understanding on the record or in a letter to the prosecuting attorney. We will not revise the existing agreement to comport with Windom's interpretation.

Independent of his assertion that the plea agreement was ambiguous, Windom argues that the State breached the agreement. "Whether a breach of contract exists involves a question of fact. Findings of fact will not be overturned unless clearly erroneous." Jorgensen, 137 Wis.2d at 169, 404 N.W.2d at 68 (citations omitted). The party asserting 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." Id. at 168, 404 N.W.2d at 68.

We determine that the scope of the plea agreement was limited to the original sentence for probation and therefore the State did not breach the plea agreement. There is no evidence to indicate the parties intended the plea agreement to extend beyond the original sentence for burglary. To treat the sentencing after probation revocation as an integral part of the original sentence would bind the State to that plea agreement ad infinitum in all subsequent sentence hearings arising out of the original crime. To bind the State to the plea agreement in this...