State v. Washington

2009 WI App 148, 775 N.W.2d 535
Court of Appeals of Wisconsin·Decided September 2, 2009·No. 2008AP2359-CR·Published·Cited by 5 cases

Opinion

775 N.W.2d 535 (2009)
2009 WI App 148

STATE of Wisconsin, Plaintiff-Respondent,
v.
Michael Lee WASHINGTON, Defendant-Appellant.

No. 2008AP2359-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs May 29, 2009.
September 2, 2009.

*536 On behalf of the defendant-appellant, the cause was submitted on the briefs of Christopher L. Wiesmueller of Kuchler and Cotton Law Offices, Waukesha.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Eileen W. Pray, assistant attorney general, and J.B. Van Hollen, attorney general.

Before NEUBAUER, P.J., ANDERSON and SNYDER, JJ.

¶ 1 SNYDER, J.

Michael Lee Washington appeals from a reconfinement order and an order denying his motion for postconviction relief. Washington asserts that he waived his final revocation hearing in reliance upon an agreement with the Department of Corrections (DOC) regarding a recommended term of reincarceration. He contends that the prosecutor breached the agreement by not following the DOC recommendation *537 at the reconfinement hearing.[1] Washington further argues the circuit court failed to properly weigh relevant sentencing factors; specifically, he contends the court did not give enough weight to the DOC recommendation. We reject both of Washington's arguments and affirm.

BACKGROUND

¶ 2 On March 18, 2005, a jury convicted Washington of Forgery-Uttering, a Class H felony under WIS. STAT. § 943.38(2) (2007-08).[2] The circuit court sentenced Washington to two years and six months of initial confinement followed by three years of extended supervision. On April 3, 2007, Washington was granted extended supervision status. On April 11, 2007, Washington began violating conditions of his extended supervision. A violation investigation report by DOC agent Vickee Ostrowski described several incidents wherein Washington failed to comply with the conditions of his release. On April 30, Ostrowski recommended referring Washington to a halfway house as an alternative to revocation. Washington absconded from the halfway house, failed to report his whereabouts, and was later arrested for obstructing an officer.

¶ 3 On August 30, 2007, Washington was taken into custody and Agent Ostrowski recommended revocation of his extended supervision. In a memorandum to the circuit court dated November 9, 2007, the DOC advised the court of its recommendation that Washington be reincarcerated for a period of one year, one month, and twenty-four days.[3] By memorandum dated December 13, Ostrowski advised the court that Washington had waived his right to a final revocation hearing on November 8.

¶ 4 A circuit court hearing for sentencing after revocation took place in January 2008. There, the prosecutor recommended two years and six months of reincarceration. Washington implored the circuit court to follow the DOC recommendation of thirteen months and twenty-four days, but acknowledged that the court "has some discretion in that." The court went over Washington's original conviction, the presentence investigation report, Washington's violations since being released on extended supervision, the competing recommendations by the parties, and the minimum amount of custody to promote rehabilitation. Based upon all of the factors, the court sentenced Washington to two years in prison with extended supervision to complete the balance of the original sentence.

¶ 5 Washington moved for postconviction relief. At the motion hearing, Washington argued that the DOC revocation hearing form does not warn the offender that the state will be free to recommend whatever term of reincarceration it sees fit, regardless of the recommendation provided by the DOC. He further asserted that the circuit court did not address all of the relevant factors prior to deciding on the *538 term of reincarceration. The court held that any challenge to the DOC revocation hearing form is an administrative matter, suggesting the matter was not properly before the court. Nonetheless, the court determined that it owed no deference to the DOC recommendation and that the form properly informed Washington of that fact. The court further stated that it was satisfied that it had considered all of the relevant sentencing factors and was "well aware of the facts of this case." The court denied Washington's motion for relief. Washington appeals.

DISCUSSION

¶ 6 Washington clarifies his appellate issues in his reply brief, stating that he is not challenging the administrative waiver of his revocation hearing.[4] Rather, his question is whether the prosecutor was "bound to follow the [DOC] recommendation at the reconfinement hearing." He also claims that the circuit court failed to properly consider mitigating factors or accord sufficient weight to the DOC's recommended term of reconfinement. He seeks a modification of the term of reincarceration imposed by the court.

The DOC Recommendation

¶ 7 We begin with Washington's characterization of his understanding with the DOC as a "plea agreement." A plea agreement is analogous to a contract and we draw upon contract principles in determining the rights of the parties to a plea agreement and whether there has been a breach. State v. Deilke, 2004 WI 104, ¶ 12, 274 Wis.2d 595, 682 N.W.2d 945. The question of whether the State's conduct breached the terms of the plea agreement is a question of law that we review de novo. State v. Howard, 2001 WI App 137, ¶ 15, 246 Wis.2d 475, 630 N.W.2d 244.

¶ 8 The State responds that no plea negotiations took place here and no plea agreement was in place. We agree. We note that while the record confirms the DOC recommended thirteen months and twenty-four days of reincarceration and that Washington waived his final revocation hearing, there is nothing to suggest that one served as consideration for the other. The State explains that when a person waives his or her revocation hearing, the DOC is required to "make a recommendation to the court concerning the period of time for which the person should be returned to prison." See WIS. STAT. § 302.113(9)(at). The DOC consults a "penalty schedule" and other criteria to arrive at an appropriate recommendation. See, e.g., George v. Schwarz, 2001 WI App 72, ¶¶ 17-18, 242 Wis.2d 450, 626 N.W.2d 57. We reject Washington's assertion that there was a plea agreement in place.

¶ 9 The DOC recommendation for reincarceration following revocation is more appropriately analogized to a presentence investigation report (PSI) at the original sentencing. See State v. Brown, 2006 WI 131, ¶ 24, 298 Wis.2d 37, 725 *539 N.W.2d 262. The securing of a PSI is an integral part of the sentencing function and is solely within the judicial function. Young v. State, 49 Wis.2d 361, 368, 182 N.W.2d 262 (1971). The purpose of a PSI is to assist the judge in selecting the appropriate sentence for the individual defendant. State v. Knapp, 111 Wis.2d 380, 384, 330 N.W.2d 242 (Ct.App.1983). The DOC does not function as an agent of either the State or the defense in fulfilling its PSI role but as an agent of the court in gathering information relating to a specific defendant. State v. Suchocki, 208 Wis.2d 509, 518, 561 N.W.2d 332 (Ct.App.1997), abrogated on other grounds by State v.

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State v. Washington, 2009 WI App 148, 775 N.W.2d 535 (Wis. Ct. App. 2009).

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