State v. Conger

2010 WI 56, 797 N.W.2d 341, 325 Wis. 2d 664, 2010 Wisc. LEXIS 50

• Court: Wisconsin Supreme Court
• Decided: June 30, 2010
• Docket: No. 2008AP755-CR
• Status: Published

Opinions

N. PATRICK CROOKS, J.

¶ 1. This case is before the court on certification from the court of appeals pursuant to Wis. Stat. § (Rule) 809.61 (2007-08).¹ It centers on a plea agreement that the Fond du Lac County Circuit Court rejected, and it presents three related questions. First, under what circumstances may a circuit court reject a plea agreement? Second, what factors may a court consider when it reviews a plea agreement? In answering the second question, we are asked to address whether the views of law enforcement may be among the factors considered.

¶ 2. Third, as a corollary to those two questions, we must determine whether a judge who has rejected a plea agreement must then automatically withdraw from further participation in the matter, and, if not, whether the circumstances of this case at this point require such a recusal.

¶ 3. The first two questions presented by this case are answered by Wis. Stat. § 971.29² (which permits amendment of the charge without judicial approval only prior to arraignment) and established precedent concerning the circuit court's inherent authority to reject a plea that is not in the public interest. Thus, a circuit court must review a plea agreement independently and may, if it appropriately exercises its discretion, reject any plea agreement that does not, in its view, serve the public interest. That review is analogous to the court's independent determination that a factual basis exists for the plea and its independent determination pursuant to Wis. Stat. § 971.08(1) that the plea is made knowingly, intelligently, and voluntarily; such independent determinations are safeguards built into our system to protect the integrity of the plea process. When a court determines independently whether a plea is in the public interest, it is no more a reflection on the prosecutor's integrity or judgment than when it determines independently that a factual basis supports the plea.

¶ 4. As for the factors a court may consider when it makes that independent determination, we reiterate, as other courts have done, that the public interest is a consideration that is not capable of precise outlines. Accordingly, the factors that a court may weigh when defining the public interest involved will vary from case to case. One appropriate factor among many may well be the viewpoint of law enforcement; a court's consideration of that factor in its analysis does not automatically invalidate its ultimate decision with regard to the plea.

¶ 5. Finally, in answer to the questions about required recusal, we conclude that a court's rejection of a plea does not in and of itself become a "personal interest in the outcome of the matter," and Wis. Stat. § 757.19(2)(f)³ is not implicated here.⁴ We are unable to ascertain on this record whether in the course of the appeal Judge Grimm has become a party to this case,⁵ in which event it appears that Wis. Stat. § 757.19(2)(b)⁶ would now require his recusal from further participation in this case. Because the record is undeveloped as to that question, we remand to the court of appeals the issue of whether, as a matter of law, Judge Grimm has now become a party or amicus. We then expect a remand to the circuit court for a decision under Wis. Stat. § 757.19(2) in regard to recusal.

¶ 6. We therefore affirm the order of the circuit court denying the motion to amend the information pursuant to the plea agreement. The order denying Conger's motion seeking the court's recusal was also properly denied. However, we remand the issue of whether Judge Grimm has now become a party or amicus and whether recusal is now required.

I. BACKGROUND

A. The Circuit Court

¶ 7. This case arises from the rejection by the Fond du Lac County Circuit Court, the Honorable Peter L. Grimm presiding, of a plea agreement that had been negotiated by the prosecutor and the defendant, Joshua D. Conger. The court of appeals, in its certification of the appeal to this court, set forth the underlying facts:

The defendant, Joshua D. Conger, was charged with possession with intent to deliver more than 200 grams but less than 1000 grams of marijuana within 1000 feet of a park, a Class H felony, Wis. Stat. ch. 961, and possession of drug paraphernalia, Wis. Stat. § 961.573(1). The police found forty-eight individually wrapped baggies of marijuana totaling 774 grams, hidden behind a ceiling tile in the home Conger shared with his girlfriend and a third person. The officers also found a digital scale, a box of sandwich baggies, and "a large amount" of marijuana stems. Conger also apparently told a police officer that he owed $2900 to a drug supplier.

The parties negotiated a plea agreement, which reduced the felony charge to three counts of misdemeanor possession of marijuana with intent to deliver, and the drug paraphernalia charge was to be dismissed and read-in. When the plea agreement was presented to the court, the State explained that the decision to reduce the charge was based on the facts that Conger was twenty-two at the time of the offense with no prior record, the drugs were found in the ceiling of a shared residence, his girlfriend was also being prosecuted, Conger had not admitted that the drugs were his, Conger had been doing well on bail and had participated in drug and alcohol counseling, and the State wanted to give him a chance to "clean up his act."⁷

¶ 8. The initial plea hearing was held on October 24, 2007; the hearing was adjourned twice to December 7, 2007, and February 18, 2008, for the specific purpose of having the State obtain additional information that the court requested before ruling on the motion to amend the charges as part of the plea agreement. At the first hearing, the court expressed skepticism about the amendment of the charges — stating at one point that it was "wrestling with the motion to amend" — and made reference to its responsibility under State v. Kenyon,⁸ which authorizes a court to reject a plea agreement that does not serve the public interest. At the conclusion of the first hearing, the court specified four facts it wanted to know: the correct weight of the marijuana seized in the case, its street value, the status of co-defendants' cases, and the drug unit's⁹ opinion of the agreement. The court then stated:

State v. Kenyon indicates the Court — Courts have a responsibility on the motion, and I appreciate the reasons submitted.... But in deference to the attorneys' recommendation, I will adjourn the matter, and I have asked a couple questions the lawyers didn't have answers to, and I think if we come back to court and the answers can be given that are all positive, while it's a very close case, I think if the answers come back positive, I will go along with the agreement, but if the answers come back negative, then I will have to exercise my discretion and make a decision under State v. Kenyon.

¶ 9. At the second plea hearing, having obtained the answers to three of its questions, the court stated, "If I had to decide right now based on what we have, the answer is still no, I'm not going to accept it. . . ." The court made reference to the answers it had obtained from counsel, noting that "the quantity [of marijuana] [is] high, the dollar street value is high, so there [are] certainly uphill issues the Court has to address ... However, the court again adjourned the hearing, saying that the agency's opinion of the plea bargain — the still-unanswered question — would be "a factor [the court] would reconsider."

¶ 10. At the third plea hearing, defense counsel informed the-court that the MEG Unit "generally [is] not[] in favor of reductions from felonies to misdemeanors," and the prosecutor agreed. The court reiterated concerns it had stated in both previous hearings— beginning by observing that "what really jumps out in this record is the nature of the facts within the Criminal Complaint and the preliminary hearing transcript" concerning the scale of the drug operation at Conger's residence. The circuit court also expressed its concern about "sending] a message to like-minded people who allegedly maintain a drug trafficking place or allegedly possess large quantities with higher street values with intent to deliver." Among the factors cited by the circuit court was the fact that "the law enforcement unit of investigation and arrest is not agreeing to the plea bargain or the reduction from felonies to misdemeanors." The court denied the motion.

¶ 11. Following the denial of the motion, Conger moved the circuit court for an order of recusal on the grounds that in rejecting the plea agreement, the circuit court had "acted in an adverse capacity to a party in the same proceedings" by its "encouragement of the continued prosecution of the defendant" and therefore recusal was required under Wis. Stat. § 757.19(2)(c).¹⁰ Alternatively, he sought recusal on the grounds that the "appearance of justice" required by the Due Process Clause to the Fourteenth Amendment of the United States Constitution and by Wis. Stat. § 757.l9(2)(g),¹¹ the court's disqualification was necessary because the court's refusal of the plea "gives rise to an 'appearance of partiality.'" The circuit court denied the motion.

B. The Court of Appeals

¶ 12. Conger petitioned for an interlocutory appeal, and the State joined Conger's petition. In its May 23,2008, order granting the petition, the court of appeals noted "the unique situation presented" and "agree[d] with the State that input from the circuit court [would] be beneficial." It therefore directed Judge Grimm "to arrange representation through the Director of State Courts and to file a response ...." In a June 10, 2008, order setting forth a briefing schedule, the court of appeals stated, "Conger and the State have been designated as an appellant and a co-appellant respectively. The circuit court judge, the Honorable Peter L. Grimm, has been designated as an intervenor-respondent."

¶ 13. The court of appeals then certified the appeal to this court under Wis. Stat. § (Rule) 809.61. In its certification memorandum, the court of appeals described the State and Conger as "co-appellants" and Judge Grimm as "the respondent." This court accepted the certification.

II. STANDARD OF REVIEW

¶ 14. This court has not explicitly articulated the appellate standard for reviewing a circuit court's rejection of a plea agreement. However, it is implicit in the court's analysis in State v. Kenyon, 85 Wis. 2d 36, 45, 270 N.W.2d 160 (1978), that the rejection is reviewed as an exercise of discretion. First, the court referenced the exercise of discretion in its analysis: "[W]hen the jurisdiction of the court is invoked by the commencement of a criminal proceeding, the court can exercise the discretion described in [Guinther et al. v. City of Milwaukee, 217 Wis. 334, 258 N.W. 865 (1935)]." Guinther established a court's authority to reject a dismissal of a charge. Further, the court's analysis focused on the legal sufficiency of the lower court's rejection of the plea rather than a de novo review of the facts. Id. at 47. The court reversed the orders and remanded to the circuit court "for its reconsideration." Id. We will sustain a court's exercise of discretion if the court: (1) examined the relevant facts; (2) applied a proper standard of law; and (3) using a demonstrably rational process, reached a conclusion that a reasonable judge could reach. Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982).

III. ANALYSIS

A. When a Circuit Court May Reject a Plea Agreement

¶ 15. Plea agreements occur routinely as part of the work of prosecutors, defense attorneys, and courts. Such agreements may include charges to be dismissed, charges to be amended, the type of plea to be entered, and sentencing recommendations to be made to the court. The plea agreement at issue in this case involved a felony charge that was to be amended to three misdemeanors, another charge to be dismissed with the expectation that it would be read in at sentencing,¹² and a recommendation by the prosecutor for specific sentencing terms.

¶ 16. The legislature has defined the circumstances under which a prosecutor may amend charges. "A complaint or information may be amended at any time prior to arraignment without leave of the court." Wis. Stat. § 971.29(1). It seems evident that the language "prior to arraignment" is most sensibly read to set the outer limit of when the prosecutor may make such an amendment in his or her sole discretion. Otherwise, the language is surplusage.

¶ 17. All of the parties agree that there is a requirement of "leave of the court" for any post-arraignment amendment. Conger and the State argue,¹³ rather, that the standard by which a court reviews a plea agreement requires a high degree of deference to reasonable exercise of the prosecutor's discretion, and that under the facts presented here, the prosecutor's recommendation was not so unreasonable that it reached the level where the court needed to step in. Stated differently, the argument is that a plea agreement endorsed by a prosecutor enjoys a strong presumption that it serves the public interest, and that failing to respect that presumption constitutes error on the part of the court. Though they frame their arguments in slightly different terms, both the State and Conger suggest setting a high standard of deference to a prosecutor's recommendation. They would require the court to find that a prosecutor had, in recommending a plea agreement, failed to use a "logical reasoning process ... [to] come to a reasoned conclusion" (Conger brief at 15) or "wholly failed to consider the interests of the victim ... or has shown some improper discriminatory motive" (State brief at 16). Both argue that in this case, deference to the prosecutor's recommendation is warranted, because the recommendation was made after consideration of all of the relevant facts, and constituted a reasonable exercise of a prosecutor's inherent power and well-established discretion with regard to the prosecution of cases.

¶ 18. Counsel for Judge Grimm argues that neither the statute nor case law provides a basis for such a standard. The test for evaluating a plea¹⁴ is whether it serves the public interest, and, while other jurisdictions have taken other approaches, Wisconsin law has not wavered. For at least 75 years it has been the law in this state that a trial court is empowered to make that determination.

¶ 19. We begin by noting that in their respective spheres, the prosecutor and the court are afforded necessarily wide deference to do their jobs. "The discretion resting with the district attorney in determining whether to commence a prosecution is almost limitless .. .." Kenyon, 85 Wis. 2d at 45. Indeed, the prosecutor's role has been called " 'quasi-judicial' in the sense that it is his or her duty to administer justice rather than simply obtain convictions." State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 28, 271 Wis. 2d 633, 681 N.W.2d 110. Further, matters that are within a circuit court's exercise of discretion are reversible only where it can be shown that relevant facts were ignored or the law was incorrectly or unreasonably applied. We will sustain a court's exercise of discretion if the court: (1) examined the relevant facts; (2) applied a proper standard of law; and (3) using a demonstrably rational process, reached a conclusion that a reasonable judge could reach. Loy v. Bunderson, 107 Wis. 2d at 414-15.

¶ 20. There are clearly weighty and difficult decisions early in a prosecution that are left to the sole discretion of the prosecutor, as well as decisions following conviction that are left to the sole discretion of the court.¹⁵ The cases that address matters of judicial and prosecutorial discretion repeatedly acknowledge the broad discretion vested, respectively, in a judge and in a prosecutor. However, the cases have not been fully harmonized on the question presented here, which is how, in a given case, to reconcile the "limited judicial supervision of prosecutorial motions to dismiss,"¹⁶ with "the independent authority of the trial court to grant or refuse a motion to dismiss [charges]," id. at 45, and how those principles fit together with the district attorney's "great discretion in [the] decision to charge... [and the] negotiation of plea bargains,"¹⁷ and the fact that "[n]either of these discretions[] ... is unfettered."¹⁸ For example, with respect to district attorneys, this court stated in State ex rel. Kurkierewicz v. Cannon, 42 Wis. 2d 368, 166 N.W.2d 255 (1969),

The district attorney in Wisconsin is a constitutional officer and is endowed with a discretion that approaches the quasi-judicial. It is clear that in his functions as a prosecutor he has great discretion in determining whether or not to prosecute. There is no obligation or duty upon a district attorney to prosecute all complaints that may be filed with him. While it is his duty to prosecute criminals, it is obvious that a great portion of the power of the state has been placed in his hands for him to use in the furtherance of justice, and this does not per se require prosecution in all cases where there appears to be a violation of the law no matter how trivial. In general, the district attorney is not answerable to any other officer of the state in respect to the manner in which he exercises those powers.

Id. at 378 (footnotes and citation omitted).

¶ 21. Conger argues here that a court having the power to reject a plea agreement usurps the prosecutor's role. He contends that it is solely the prosecutor's decision whether to prosecute and how to proceed with a prosecution. In rejecting the plea agreement, Conger argues, the circuit court in essence decided that the prosecution would have to go forward — a decision that is within the sole purview of the prosecutor.¹⁹

¶ 22. Under Kenyon and its predecessor, Guinther, however, we reconcile the apparent tension between powers within the prosecutor's realm and those within the court's realm with reference to the point in time that marks the boundary between the two in any given case: the point at which the court's jurisdiction is invoked. As we said in Kenyon,

The discretion resting with the district attorney in determining whether to commence a prosecution is almost limitless . . . ; however, when the jurisdiction of the court is invoked by the commencement of a criminal proceeding, the court can exercise the discretion described in Guinther....

Kenyon, 85 Wis. 2d at 45. This court in Kenyon also described another check on the power of the district attorney — the legislature:

[T]he position of district attorney, though constitutional, was not one of inherent powers, but was answerable to specific directions of the legislature. It appears settled, therefore, in Wisconsin at least, that the prosecutor is subject to the enactments of the legislature ....

Id. at 42 (quoting State ex rel. Kurkierewicz v. Cannon, 42 Wis. 2d 368, 380,166 N.W.2d 255 (1969)). Thus, both the fact that the court's jurisdiction is "invoked by the commencement" of a case and that the legislature has granted prosecutors sole discretion to amend a charge only prior to arraignment²⁰ mean that the prosecutor's unchecked discretion stops at the point of arraignment.

¶ 23. Kenyon makes clear that Wisconsin is not alone in this respect; it cites a case in which the United States Court of Appeals for the Fifth Circuit noted that "more than thirty states had, by statute or judicial decision, modified the common law to give courts a responsible role in the dismissal of a pending criminal proceeding by requiring an 'order' or 'leave' or 'consent' of court." Id. at 44 (citing United States v. Cowan, 524 F.2d 504, 509-10 (5th Cir. 1975)).

¶ 24. Thus, deciding whether to reject a plea agreement is squarely within the court's authority; to hold otherwise would permit encroachment by the executive branch into the realm that has historically, in Wisconsin, been that of the judicial branch. It is true that some other jurisdictions²¹ have created different standards than Wisconsin's. While the language of our case law has emphasized the discretion of both the prosecutor and the court in various ways, our courts have been unfailingly consistent in holding that we do not impose such a limitation on a court when it is determining whether a plea agreement is in the public interest. In that regard, it is worth noting as well that our approach is consistent with that of the federal courts. The language of Rule 11 of the Federal Rules of Criminal Procedure makes clear that a court's review of a plea agreement is an independent one:

(3) Judicial Consideration of a Plea Agreement.

(A) To the extent the plea agreement is of the type specified in Rule 11(c)(1)(A) or (C), the court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report.

...

(4) Accepting a Plea Agreement. If the court accepts the plea agreement, it must inform the defendant that to the extent the plea agreement is of the type specified in Rule 11(c)(1)(A) or (C), the agreed disposition will be included in the judgment.

(5) Rejecting a Plea Agreement. If the court rejects a plea agreement containing provisions of the type specified in Rule 11(c)(1)(A) or (C), the court must do the following on the record and in open court (or, for good cause, in camera):

(A) inform the parties that the court rejects the plea agreement;

(B) advise the defendant personally that the court is not required to follow the plea agreement and give the defendant an opportunity to withdraw the plea; and

(C) advise the defendant personally that if the plea is not withdrawn, the court may dispose of the case less favorably toward the defendant than the plea agreement contemplated.

Fed. R. Crim. P. 11(c) (emphasis added). Federal courts have made clear that rejecting a plea does not, in itself, constitute becoming involved in plea negotiations.²²

¶ 25. That said, as we noted in Kenyon and explain herein, consideration of the views of the prosecutor as well as the defense attorney certainly enter into that determination.

¶ 26. Our approach vests authority in the circuit court to determine what pleas are in the public interest without permitting the court to intrude on the authority of the prosecutor to decide what charges to file or whether to file charges in the first instance. As we stated in Kenyon,

[I]n all cases some finding should be made with respect to the impact of the ruling on the public interest in proper enforcement of its laws and the public interest in allowing the prosecutor sufficient freedom to exercise his legitimate discretion, to employ to the best effect his experience and training, and to make the subjective judgment implicit in the broad grant of authority under sec. 59.47, Stats.

. . . [Here] the trial court. .. failed to make any determination concerning how granting or refusing the motion would affect the public interest.... [T]here must... be some concern with the public's right to have the crimes actually committed fairly prosecuted and to the protection of the rights of third persons. The court should consider the various elements as they appear and then exercise its discretion.

Kenyon, 85 Wis. 2d at 47.

¶ 27. Our approach has thus required a circuit court to "consider the various elements" and then "exercise its discretion" when evaluating a plea agreement. When the court rejects a plea, the record must reflect an exercise of discretion. We are not persuaded that departing from it would be an improvement. We therefore hold that a circuit court may, in an appropriate exercise of discretion, reject a plea agreement that it deems not to be in the public interest.

¶ 28. Turning to the facts of this case, we must apply the proper standard of review to the circuit court's exercise of discretion. If the court considered the relevant facts and made no mistake of law, we will affirm.

B. Factors to Consider When Evaluating a Plea

¶ 29. That brings us to the second question presented by this case, which concerns what factors are appropriate for a court to consider in deciding whether to reject a plea agreement. It is true, as this court noted in Kenyon, that the public interest standard is "admittedly broad," and that "Guinther sheds little light on the various factors and considerations which may legitimately be included under this rubric." Kenyon, 85 Wis. 2d at 46. It is also true that Kenyon did not ameliorate that problem. Rather, this court simply noted that "[i]t would be impossible to make an exhaustive list of just what to take into account in this regard." Id. at 47. We agree that it would be impossible to set forth an exhaustive list that would apply to the variety of facts and charges that face circuit courts every day. However, we can identify some of the factors that could apply depending on circumstances.

¶ 30. To begin, Kenyon sketched the broad outlines of the appropriate inquiry into whether a plea is in the public interest. In that case, we noted that the circuit court should take into account "the public's right to have the crimes actually committed fairly prosecuted and to the protection of the rights of third persons," Kenyon, 85 Wis. 2d at 47, as well as "the public interest in proper enforcement of its laws and the public interest in allowing the prosecutor sufficient freedom to exercise his legitimate discretion, to employ to the best effect his experience and training, and to make the subjective judgment implicit in the broad grant of authority under sec. 59.47, Stats." Id.

¶ 31. Given those contours, a sensible — and important — starting point for a circuit court evaluating a plea is to consider the reasons stated by the prosecutor and defense counsel for recommending the plea agreement. Giving weight to the prosecutor's recommendation and supporting reasoning reflects the court's interest in honoring the public interest in providing a prosecutor freedom to exercise the discretion that his or her position authorizes. Likewise, the court's evaluation of the defense attorney's reasoning and recommendations reflects a balancing consideration of the public interest in a fair prosecution.²³

¶ 32. A review of other sources yields additional considerations that could be relevant and, thus, useful in particular cases. In Myers v. Frazier, 319 S.E.2d 782, 790 (W. Va. 1984), the list of factors relevant to the public interest includes: whether a defendant has voluntarily and intelligently entered into a plea bargain; whether a factual basis exists for his or her guilty plea; the general public's perception that crimes should be prosecuted; the interests of the victim; the court's ability to dispose of the case in a manner commensurate with the seriousness of the criminal charges and the character and background of the defendant; and the plea's usefulness in securing a legitimate and important prosecutorial interest (e.g., critical testimony needed to convict an accomplice).

¶ 33. It has also been observed that "[t]here may be situations in which the public interest might better be served by having a case tried rather than by having it disposed of by means of a guilty plea."²⁴

¶ 34. In Kalal, 271 Wis. 2d 633, ¶ 32, we discussed factors a prosecutor may consider when deciding whether to file charges, and these factors overlap with determining the public's interest with regard to a plea:

• the extent of harm caused by the offense;

• the threat posed to the public by the suspect;

• the ability and willingness of the victim to participate;

• the disproportion between the authorized punishment and the particular offense or offender;

• possible improper motives of a complainant;

• cooperation of the suspect with the arrest/prosecution of others; and

• the possibility or likelihood of prosecution by another jurisdiction.

In Kalal, we adopted those factors from the American Bar Association's Standards for Criminal Justice. Similarly, ABA Standard 14-1.8 provides factors for a court to consider in assessing a plea agreement:

Consideration of plea in final disposition

(a). .. It is proper for the court to grant charge ... concessions to defendants who enter a plea of guilty ... when consistent with the protection of the public, the gravity of the offense, and the needs of the defendant, and when there is substantial evidence to establish that:

(i) the defendant is genuinely contrite and has shown a willingness to assume responsibility for his or her conduct;

(ii) the concessions will make possible alternative correctional measures which are better adapted to achieving protective, deterrent, or other purposes of correctional treatment, or will prevent undue harm to the defendant from the form of conviction;

(iii) the defendant, by making public trial unnecessary, has demonstrated genuine consideration for the victims of his or her criminal activity, by desiring either to make restitution or to prevent unseemly public scrutiny or embarrassment to them; or

(iv) the defendant has given or offered cooperation when such cooperation has resulted or may result in the successful prosecution of other offenders engaged in equally serious or more serious criminal conduct.

Am. Bar Ass'n, Standards for Criminal Justice, Standard 14-1.8 (2d ed. 1980).

¶ 35. We Eire satisfied that a court's consideration of any of those factors, in evaluating a plea agreement, could be appropriate, depending on the factual circumstances of the case. We emphasize that the evaluation process is more of an Eirt than a science. In other words, the factors we list herein are not to be construed as a mechanical, multi-element test. Rather, we simply have identified factors that could be relevant and helpful to a court in evaluating a plea agreement.

¶ 36. In this case, the circuit court discussed the following factors on the record:

- the amount of marijuana and dealer-related items recovered from defendant's bedroom;

- the fact that the recovered marijuana had a large street value;

- the defendant admitted owing $2900 to a supplier;

- the MEG unit did not "in general" agree with plea agreements that involved charge reductions;

- at 22, the defendant was "old enough" to make better decisions;

- the defendant acted with other people;

- the consequences of a felony conviction is a better deterrent for future criminal activity; and

- the prosecutor's given reasons for recommending the plea agreement to the court were more relevant to sentencing than to plea negotiations.

The court also expressed the sentiment that reducing felony charges to misdemeanors decreases the morale of law enforcement.

¶ 37. One specific factor was the focus of one of the questions certified to us by the court of appeals: "whether a tried court may take into account the view of law enforcement when considering the public's interest in a plea agreement." The State and Conger argue that to consider the view of law enforcement, as the circuit court did here, runs afoul of State v. Matson,25 which held that a plea agreement between the State and a defendant that included a joint sentencing recommendation was breached by a letter written by a law enforcement officer asking the court to disregard the joint recommendation and instead impose the maximum sentence. The question in Matson was whether the defendant, having entered a plea pursuant to the plea agreement, was entitled to resentencing before a different circuit court judge as a result of the breach.

¶ 38. The State and Conger invoke Matson for the proposition that a court may not properly consider the view of law enforcement when determining whether to reject a plea pursuant to a plea agreement. The State quotes the following language in Matson as support for this proposition: "Because an investigative officer is the investigating arm of the prosecutor's office, principles of fairness and agency require us to bind the investigating officer to the prosecutor's bargain." Matson, 268 Wis. 2d, ¶ 23.

¶ 39. The focus of the analysis in Matson was on whether the request by the investigating officer that the court impose a maximum sentence should be imputed to the State, which had represented in its negotiations with the defendant and statements to the court its intent to recommend a much lesser sentence. The circuit court in Matson had followed the recommendation advocated by the investigating officer and imposed the maximum penalty. The court of appeals reversed the circuit court, noting that "had the letter in this case been written, or the sentiments contained therein uttered, by the district attorney's office, a breach of the plea agreement would have occurred." Id., ¶ 22. The court of appeals reasoned that "the State is obligated to comply with any promises it makes" to induce a guilty plea from a defendant. Id., ¶ 23.

¶ 40. It is possible to draw comparisons between the facts of Matson with Conger's situation only by characterizing the facts in the broadest possible terms: both cases involve consideration by a circuit court of law enforcement representatives' views on a plea agreement. Such an analysis is not helpful because it strips all of the relevant facts from both cases. Matson did not stand for the proposition that law enforcement views can never be properly considered by a court; rather, it dealt with a specific situation where a plea agreement had been reached, a plea had indeed been entered, and the expectations of both the State and the defendant were that the court would be presented a joint sentencing recommendation. The overarching question before the court of appeals was whether the sentencing was fair given the competing sentencing recommendations and the defendant's much different expectation when the plea had been entered; the specific question on which that determination turned was one of agency: in other words, was the investigating officer in effect an agent of the State?

¶ 41. When the issues addressed in these cases are stated precisely, the differences become apparent. Most significantly, considering law enforcement representatives' views as a factor in determining whether to reject the proposed plea agreement is quite a different matter from allowing law enforcement to slip a harsher sentencing recommendation to a court while the prosecutor uses a lesser sentencing recommendation to procure a plea from the defendant. Here, the consideration of law enforcement's views was only one factor, of several noted in the record, in the circuit court's decision, and it was not obtained after the prosecution had secured the defendant's plea. Matson is good law, but it has no application here.

¶ 42. The court in this case did a very thorough job of examining the facts. As noted above, over the course of multiple hearings, the court questioned the parties closely and carefully in order to have a complete understanding of the facts. While it would be inappropriate for a court to deny a motion to amend as part of a plea agreement on the grounds that it gives law enforcement veto power over plea agreements or on the grounds that it followed a policy that amendments from felonies to misdemeanors were never approved, those circumstances are not in the record before us in this case.²⁶ The record shows that the circuit court was troubled by the facts of this particular case from the first plea hearing. This was not a situation where a plea agreement to which the court was initially receptive was nixed by law enforcement; rather, here, it was clear that the circuit court was going to reject the plea agreement on all the facts before it even before it knew the view of the law enforcement unit. The view of the law enforcement unit was one of four facts the circuit court sought to learn about before ruling on the motion; after three of those questions were answered, but before the question about the MEG Unit was answered, the court said its answer was "still no."

¶ 43. As we have discussed, the circuit court properly applied the law as set forth in Kenyon, which was cited in the circuit court's ruling. Given that the court made a detailed record over the course of three hearings as to the factors it considered significant, and given that those factors were appropriate to the analysis, we determine that the circuit court had the power to reject the plea agreement on its holding that it was not in the public interest. The circuit court did not erroneously exercise its discretion.

C. Whether the Circuit Court Erred in Denying Conger's Motion to Recuse

¶ 44. As noted above, Conger moved to recuse the circuit court after it denied his motion to amend the charges. The circuit court denied that motion as well. Conger asks on appeal that the circuit court's denial of that motion be reversed. We conclude that the circuit court did not err in denying Conger's motion to recuse because rejecting a plea agreement on the grounds that it is not in the public interest does not fall under any of the rules that automatically require a court's recusal from further participation in a case.

¶ 45. Conger argues that the court's recusal was necessary once it rejected the plea agreement for the following reasons. First, Wis. Stat. § 757.19(2)(b) requires recusal when a judge is a party to a case, and Conger contends that the court, in rejecting the plea, essentially placed itself in the role of prosecutor, representing a party adverse to the defendant. Second, Wis. (2)(f) requires recusal when ajudge has "a significant. .. personal interest" in the outcome of a case, and Conger argues that the circuit court, in rejecting the plea, has stated such an interest. The State disagrees, as does counsel for Judge Grimm, and each argues that rejecting a plea agreement neither constitutes becoming a party nor states a significant personal interest in a case. The presumption that judges are free from bias and prejudice is well established. State v. Santana, 220 Wis. 2d 674, 684, 584 N.W.2d 151 (Ct. App. 1998). Counsel for Judge Grimm rightly points out that given that the circuit court has a duty under the law to supervise plea agreements, it would put courts in an untenable position to create a rule that rejecting a plea automatically creates grounds for recusal. We see nothing in a court's rejection of a plea in general, and nothing in this particular record, that persuades us that in rejecting the plea agreement the court relinquished its ability to be the impartial and detached magistrate to which Conger is constitutionally and statutorily entitled. Therefore, the circuit court did not err when it denied Conger's motion to recuse; that denial was entirely proper.

¶ 46. There is, however, a twist in this case that gives us some concern. The configuration of parties in this case was altered when the court of appeals granted the petition for interlocutory appeal. As noted above, in its May 23, 2008, order granting Conger's petition for interlocutory appeal, the court of appeals noted "the unique situation presented" and "agree[d] with the State that input from the circuit court [would] be beneficial."²⁷ It therefore directed Judge Grimm "to arrange representation through the Director of State Courts and file a response . ..." In a June 10, 2008, order setting forth a briefing schedule, the court of appeals stated, "Conger and the State have been designated as an appellant and a co-appellant respectively. The circuit court judge, the Honorable Peter L. Grimm, has been designated as an intervenor-respondent."

¶ 47. This designation has raised the potential for a new motion for recusal to be made on remand on the grounds that Judge Grimm has, in the course of the appeal, become a party. If Judge Grimm has become a party to this action, then his recusal would appear to be governed by Wis. Stat. § 757.19(2)(b) (requiring disqualification from any civil or criminal action or proceeding when a judge is a party). On the record before us, we are unable to dispose of the question of Judge Grimm's status as a party in this matter. The record before us does not include any motions filed by any party requesting that Judge Grimm be permitted to intervene in this matter.²⁸ We do not know whether the court of appeals made the designation on the basis of Wis. Stat. § 803.03, Wis. Stat. § 803.09, or some other statute.²⁹ Nor does the court of appeals explain its rationale for its decision to order Judge Grimm to obtain representation and for its designation of the respective parties as appellant, co-appellant, and intervenor-respondent in the certification of appeal to this court. Of course, the fact that Judge Grimm is represented by counsel does not necessarily make him a party. As the State suggests in its reply brief to this court, "Judge Grimm's position may be better construed as an 'amicus curiae' rather than as 'a party' in a case over which the judge presided," citing analogous cases from the United States Supreme Court. This argument bears developing both because it is relevant to the immediate question of recusal and because it is a question that may arise again in the future. Because the record before us is incomplete, we cannot make that determination. We therefore remand to the court of appeals the issue of whether, as a matter of law, Judge Grimm has now become a party or amicus. We then expect a remand to the circuit court for a decision under Wis. Stat. § 757.19(2) in regard to recusal.

III. CONCLUSION

¶ 48. The first two questions presented by this case are answered by Wis. Stat. § 971.29 (which permits amendment of the charge without judicial approval only prior to arraignment) and established precedent concerning the circuit court's inherent authority to reject a plea that is not in the public interest. Thus, a circuit court must review a plea agreement independently and may, if it appropriately exercises its discretion, reject any plea agreement that does not, in its view, serve the public interest. That review is analogous to the court's independent determination that a factual basis exists for the plea and its independent determination pursuant to Wis. Stat. § 971.08(1) that the plea is made knowingly, intelligently, and voluntarily; such independent determinations are safeguards built into our system to protect the integrity of the plea process. When a court determines independently whether a plea is in the public interest, it is no more a reflection on the prosecutor's integrity or judgment than when it determines independently that a factual basis supports the plea.

¶ 49. As for the factors a court may consider when it makes that independent determination, we reiterate, as other courts have done, that the public interest is a consideration that is not capable of precise outlines. Accordingly, the factors that a court may weigh when defining the public interest involved will vary from case to case. One appropriate factor among many may well be the viewpoint of law enforcement; a court's consideration of that factor in its analysis does not automatically invalidate its ultimate decision with regard to the plea.

¶ 50. Finally, in answer to the questions about required recusal, we conclude that a court's rejection of a plea does not in and of itself become a "personal interest in the outcome of the matter," and Wis. Stat. § 757.19(2)(f) is not implicated here. We are unable to ascertain on this record whether in the course of the appeal Judge Grimm has become a party to this case, in which event it appears that Wis. Stat. § 757.19(2)(b) would now require his recusal from further participation in this case. Because the record is undeveloped as to that question, we remand to the court of appeals the issue of whether, as a matter of law, Judge Grimm has now become a party or amicus and whether recusal is now required. We then expect a remand to the circuit court for a decision under Wis. Stat. § 757.19(2).

¶ 51. We therefore affirm the order of the circuit court denying the motion to amend the information pursuant to the plea agreement. The order denying Conger's motion seeking the court's recusal was also properly denied. However, we remand to the court of appeals the issue of whether Judge Grimm has now become a party or amicus. We then expect a remand to the circuit court for a decision under Wis. Stat. § 757.19(2) in regard to recusal.

By the Court. — Order denying motion to amend affirmed; order denying motion to recuse affirmed; order of the court of appeals designating the circuit court an intervenor-respondent remanded to the court of appeals for further proceedings.

1 "Bypass by certification of court of appeals or upon motion of supreme court. The supreme court may take jurisdiction of an appeal or other proceeding in the court of appeals upon certification by the court of appeals or upon the supreme court's own motion. The supreme court may refuse to take jurisdiction of an appeal or other proceeding certified to it by the court of appeals." Wis. Stat. § (Rule) 809.61. All subsequent references to the Wisconsin Statutes are to the 2007-08 version unless otherwise indicated.

2 Wis. Stat. § 971.29 states,

Amending the charge. (1) A complaint or information may be amended at any time prior to arraignment without leave of the court. (2) At the trial, the court may allow amendment of the complaint, indictment or information to conform to the proof where such amendment is not prejudicial to the defendant. After verdict the pleading shall be deemed amended to conform to the proof if no objection to the relevance of the evidence was timely raised upon the trial. (3) Upon allowing an amendment to the complaint or indictment or information, the court may direct other amendments thereby rendered necessary and may proceed with or postpone the trial.

3 Wis. Stat. § 757.19(2)(f) provides, "Any judge shall disqualify himself or herself from any civil or criminal action or proceeding... [w]hen a judge has a significant... personal interest in the outcome of the matter."

4 Conger advances another argument for the circuit court's recusal as well: that the circuit court's consideration here of law enforcement's view of the plea was a violation of the rule set forth in State v. Matson, 2003 WI App 253, ¶ 27, 268 Wis. 2d 725, 674 N.W.2d 51 (holding that a letter submitted to the court by the investigating detective recommending a sentence length constituted a breach of a plea agreement that had included a joint sentencing recommendation). When the State breaches a plea agreement, the defendant is entitled to withdraw the plea or to be resentenced before a different judge. Id., ¶¶ 33-34. Because we conclude that views of law enforcement may be an appropriate factor in determining whether a plea serves the public interest, and that considering law enforcement views as one factor at a plea hearing is different from considering law enforcement views about the proper length of a sentence, we see no violation of Matson here and thus no grounds for recusal on that basis.

5 The circumstances surrounding what may or may not be the circuit court judge's designation as a party in this case are explained more fully at ¶¶ 46-47, infra.

6 Wis. Stat. § 757.19(2)(b) states, "Any judge shall disqualify himself or herself from any civil or criminal action or proceeding ... [w]hen a judge is a party or a material witness, except that a judge need not disqualify himself or herself if the judge determines that any pleading purporting to make him or her a party is false, sham or frivolous."

7 State v. Conger, No. 2008AP755-CR, certification memorandum at 2-3 (Wis. Ct. App. July 2, 2009) (footnote omitted).

8 State v. Kenyon, 85 Wis. 2d 36, 46-47, 270 N.W.2d 160 (1978).

9 The law enforcement unit in this case is the Lake Winnebago Area Metropolitan Enforcement Group, referenced in court transcripts as "the MEG Unit."

10 "Any judge shall disqualify himself or herself from any civil or criminal action or proceeding. .. [w]hen a judge previously acted as counsel to any party in the same action or proceeding." Wis. Stat. § 757.19(2)(c). The statute does not use the language Conger uses about acting "adversely"; Conger, in his motion, appears to assume, without providing supporting citation, that the judge's decision was the equivalent of having "acted as counsel."

11 "Any judge shall disqualify himself or herself from any civil or criminal action or proceeding... [w]hen a judge determines that, for any reason, he or she cannot, or it appears he or she cannot, act in an impartial manner." Wis. Stat. § 757.19(2)(g).

12 Under the read-in procedure, "the defendant does not plead to any charges and therefore is not sentenced on any of the read-in charges but such admitted uncharged offenses are considered in sentencing him on the charged offense." State v. Floyd, 2000 WI 14, ¶ 24, 232 Wis. 2d 767, 606 N.W.2d 155 (quoting Austin v. State, 49 Wis. 2d 727, 732, 183 N.W.2d 56 (1971)).

13 As noted above, the State joined Conger's petition for interlocutory appeal. The court of appeals designated the State and Conger "co-appellants." The two make similar but not identical arguments for the reversal of the circuit court's decision. Both argue that, where, as here, a prosecutor can state a reasonable basis for the plea agreement, the court is obligated to defer to the prosecutor's exercise of his or her discretion. Both argue that the circuit court's consideration of law enforcement's view of the plea was improper under State v. Matson (see ¶ 5, n.4, supra).

However, Conger makes the additional argument that the court's rejection of the plea agreement is improper on the grounds that it puts the court in the role of the prosecutor and thus deprives Conger of his due process rights under the United States Constitution to a neutral magistrate. On the question of recusal, the co-appellants differ. Conger argues that recusal is required here because the court has assumed the role of prosecutor and therefore there is an appearance of partiality which makes continued participation in the case unconstitutional and contrary to statute; the State argues that there are no grounds for recusal under these circumstances.

14 We note that other relevant factors for a court evaluating a plea agreement, such as whether a factual basis exists for the plea and whether the defendant has entered the plea knowingly, intelligently and voluntarily are not at issue here. See Wis. Stat. § 971.08(1); State v. Lackershire, 2007 WI 74, ¶ 34, 301 Wis. 2d 418, 734 N.W.2d 23.

15 Compare, e.g., State v. Kramer, 2001 WI 132, ¶ 14, 248 Wis. 2d 1009, 637 N.W.2d 35 (a prosecutor has wide discretion in determining if he or she will prosecute a particular case) and State v. Krueger, 224 Wis. 2d 59, 67-68, 588 N.W.2d 921 (1999) (prosecutor has discretion to choose whether to bring one charge or multiple charges) with Bubb v. Brusky, 2009 WI 91, ¶ 31 n.9, 321 Wis. 2d 1, 768 N.W.2d 903 (circuit court has broad discretion in instructing the jury) and State v. Grady, 2007 WI 81, ¶ 31, 302 Wis. 2d 80, 734 N.W.2d 364 (circuit court has broad discretion in determining relevant factors to a sentencing decision).

16 Kenyon, 85 Wis. 2d at 43.

17 State ex rel. White v. Gray, 57 Wis. 2d 17, 29, 203 N.W.2d 638 (1973).

18 Id.

19 This characterization is not consistent with the record, which indicates that the circuit court explicitly left to the prosecutor the decision of how to proceed in the case. (At the end of the final plea hearing, the court stated, "So the case will continue. The parties are certainly free or welcome to submit a revised plea bargain, but, if not, the case will be given a trial date.")

20 "A complaint or information may be amended at any time prior to arraignment without leave of the court." Wis. Stat. § 971.29(1).

21 See, e.g., United States v. Ammidown, 497 F.2d 615, 622 (D.C. Cir. 1973) ("[T]rial judges are not free to withhold approval of guilty pleas on [public interest grounds] merely because their conception of the public interest differs from that of the prosecuting attorney.")

22 See, e.g., U.S. v. Kraus, 137 F.3d 447, 453 (7th Cir. 1998):

The court's authority vis á vis the plea agreement extends beyond the obligation to ensure that it is not the result of coercion or ignorance .... The defendant has no absolute right to have his guilty plea accepted by the court. On the contrary, "[a] court may reject a plea in [the] exercise of sound judicial discretion." Thus, where the parties have agreed to a particular sentence pursuant to Rule 11(e)(1)(C), for example, the court has the power — and under the Sentencing Guidelines, the explicit obligation — to consider whether that sentence is adequate and to reject the plea agreement if the court finds it not to be. U.S.S.G. § 6B1.2(c). Yet, a court may not act arbitrarily; if it elects to reject a plea agreement, it must be able to "articulate a sound reason" for doing so. Requiring the court to state on the record its reasons for rejecting a plea agreement "is the surest way to foster the sound exercise of judicial discretion."... So long as the court speaks in the context of "actively evaluating a plea agreement" and its remarks are confined to the agreement before it, the court does not become a participant in the plea negotiations in violation of Rule 11.

(citations omitted).

23 For example, during the plea and sentencing hearing in this case, the district attorney explained her reasoning for making the plea offer to the circuit court:

I was the original attorney who made the plea offer in this case. I made that offer based on the fact that Mr. Conger has no prior juvenile record, no prior adult record. CCAP indicates that he has two previous convictions for FO citations: one for an underage alcohol violation, one for a snowmobile violation. Other than that, Mr. Conger has no previous record.

... [T]he drugs were found in a house that Mr. Conger shared with his girlfriend as well as another individual who lived in that house. Mr. Conger never did admit that they were his.

I do feel that it is a serious case. It was a large amount of drugs. However, based on the fact that Mr. Conger has no prior history, no misdemeanors, no FO possessions, no — other than the one underage drinking citation, no prior history with drugs or alcohol, that three misdemeanors is an appropriate resolution.

Likewise, Conger's defense attorney submitted a memorandum in support of the plea agreement in this case:

The district attorney in this matter properly exercised its discretion. The discovery does not show direct possession of the contraband by the defendant. The attention to the defendant's address was related to activities of his girlfriend, who lived with him. The defendant did not admit his possession of the contraband, which was found above ceiling tiles in his and his girlfriendfls apartment. Another person with access to the premises and location where the contraband was found was not charged, even though he lived there. The defendant is youthful and is a first offender. All of these reasons provide a proper basis for leniency in charging. The plea bargain should be approved.

24 U.S. Dep't of Justice, U.S. Attorneys' Manual, Plea Agreements—Considerations to Be Weighed § 9-27.420 (1997), available at http://wwwjustice.gov/usao/eousa/foia_reading_room/usam/title9/title9.htm.

25 State v. Matson, 2003 WI App 253, ¶¶ 2-3, 268 Wis. 2d 725, 674 N.W.2d 51.

26 It is true that the circuit court made the statement, at the third plea hearing, "The Court believes that the public interest is not served by the reduction from felonies to misdemeanors." This statement, standing alone, can not be an appropriate standard for evaluating plea agreements. However, given the full context of the transcripts of the three hearings, we are satisfied that the circuit court was not in actuality applying such a blanket rule about amendments from felonies to misdemeanors, because it focused repeatedly on several facts in the case. We note that applying a blanket rule would not require three hearings; the circuit court could easily have denied the agreement at the first hearing as soon as it was informed of the nature of the amendment sought, if it indeed had such a blanket rule.

27 Because the State and Conger are allies rather than adversaries on this issue, the court did not have the benefit of the ordinary testing of arguments by opposing parties. See Lassiter v. Dep't of Social Servs., 452 U.S. 18, 28 (1981) ("[O]ur adversary system presupposes [] [that] accurate and just results are most likely to be obtained through the equal contest of opposed interests ....").

28 The State, in its reply brief, says, "In its response to Defendant Conger's petition for leave to appeal, the State suggested that because both the State and Defendant Conger sought reversal of Judge Grimm's rejection of the proposed plea agreement, Judge Grimm's position should be represented by counsel outside the Department of Justice." Conger's petition for leave to appeal is in the record, but the State's response to it is not.

29 Wis. Stat. § 803.03(1)(a) states that "[a] person who is subject to service of process shall be joined as a party in the action if... in the person's absence complete relief cannot be accorded among those already parties[.]"

Wis. Stat. § 803.09(2) states in part that "[u]pon timely motion anyone may be permitted to intervene in an action when a movant's claim or defense and the main action have a question of law or fact in common."