State v. Williams

2001 WI App 7, 624 N.W.2d 164, 241 Wis. 2d 1, 2000 Wisc. App. LEXIS 1228

Opinions

BROWN, P.J.

¶ 1. 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 court she 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.

¶ 5. Whether the prosecutor violated the terms of a plea agreement is a question of law that we review de novo. See State 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. See State 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. See id. 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." See id. 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.

¶ 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.¹ As 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.

¶ 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; Valerius was present in court and was planning on testifying about her views. In short, the prosecutor did not need to provide any information. The court either already had the information or was about to get it.

¶ 10. Furthermore, the prosecutor did not discuss what she learned from the PSI or Valerius as a neutral commentator. She began her remarks by stating: "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." (Emphasis added). By this beginning, the prosecutor was informing the court that the after-acquired information affected her impressions of Williams. So, what followed after this opening remark was not a neutral account of after-acquired information provided for the benefit of the court. It was instead an explanation by the prosecutor as to why she now had a different take on Williams's character. Likewise, when discussing Valerius's testimony, the prosecutor was equally opinionated:

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....

... It just is very frustrating to think that someone could completely walk away and he so uncaring about a child. (Emphasis added.)

¶ 11. We are convinced that the prosecutor's remarks showed that she now had second thoughts about the plea agreement based on what she now knew about Williams's character. Thus, her statement a short while later, that the PSI writer has recommended prison, takes on added significance. This is especially so since the PSI writer had formed the same impressions for the same reasons and had recommended prison. The prosecutor made the impressions relied upon by the PSI writer her own, and she crossed the line when she went on to say how the PSI writer recommended prison. We cannot separate the prosecutor's newly held personal impressions of Williams from her gratuitous remark that the PSI writer recommended prison — gratuitous because the court already had the PSI in its possession and presumably knew the writer's recommendation. We are satisfied from the totality of the sentencing hearing remarks made by the prosecutor that the prosecutor was making the PSI recommendation her own.

¶ 12. We reiterate that a prosecutor is not required to advocate for a bargained sentence enthusiastically, see Poole, 131 Wis. 2d at 364, and may inform the court about the character of the defendant, even if it is negative. See Ferguson, 166 Wis. 2d at 324.² But what the prosecutor may not do is personalize the information, adopt the same negative impressions as the PSI writer and then remind the court that the PSI writer has recommended a harsher sentence than recommended. That is what happened here.

¶ 13. We discuss one other issue before closing. The State argues that Williams did not properly object to the prosecutor's statements. Trial counsel must object to errors with such specificity that the trial court and opposing counsel have an opportunity to remedy the defect. See Champlain v. State, 53 Wis. 2d 751, 758, 193 N.W.2d 868 (1972). We conclude that Williams's attorney objected with sufficient clarity to alert the trial court. In response to the prosecutor's extended remarks, Williams's attorney stated:

[T]he state seems to be undercutting its recommendation to the Court by relaying things that are not the state's position, they are an agent's position. ... [I]t seems to me that the state is in essence . . . undermining the recommendation that was put out and which Mr. Williams entered a plea-[B]ut I think if it gets to the point where the state is basically saying we want to change our recommendation, or we think the Court should without saying so, I think that's certainly something that is a problem.

It is clear that Williams's attorney was objecting because he thought that the prosecutor had breached the plea agreement by adopting the agent's position and was implying a change in her recommendation. This is made all the more evident by the fact that the trial court recognized it as an objection and initially agreed with Williams's attorney. The objection was sufficient. That Williams's counsel did not repeat his objection when the prosecutor replied that she was in fact abiding by the agreement is of no moment. The objection was out there, the court understood it to be so and that is all that is necessary. Objections need not be made with technical precision. They need to relay the proper information to the court. This objection passed muster.

¶ 14. We make one other comment. The State claims that the prosecutor's reply that she was not changing her recommendation salvaged the breach. We disagree. Just because the prosecutor says there was no breach does not make it so.

By the Court. — Judgment reversed and cause remanded with directions.

1 See United States v. Brown, 500 F.2d 375, 377 (4th Cir. 1974); Miller v. State, 322 A.2d 527, 529 (Md. 1974); People v. Barajas, 26 Cal. App. 3d 932, 936-37 (Cal. Ct. App. 1972); People v. Eck, 197 N.W.2d 289, 289—90 (Mich. App. 1972); Wood v. Commonwealth, 469 S.W.2d 765, 766 (Ky. Ct. App. 1971); Clancy v. Coiner, 179 S.E.2d 726, 731 (W. Va. 1971); Commonwealth v. Alvarado, 276 A.2d 526, 528-29 (Pa. 1971).

2 The prosecutor's negative remarks support a prison sentence, not probation. Had the recommendation been for a prison sentence, the remarks would have supported the recommendation.