2008 WI APP 105

State of Wisconsin,

�� Plaintiff-Appellant,�

�� v.

Miguel E. Marinez, Jr.,

�� Defendant-Respondent.

Opinion Filed:	June 26, 2008
Submitted on Briefs:�	January 14, 2008

JUDGES:	Dykman, Lundsten and Bridge, JJ.

Appellant
ATTORNEYS:	On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Jeffrey J. Kassel, assistant attorney general, and J.B. Van Hollen, attorney general.�

Respondent
ATTORNEYS:	On behalf of the defendant-respondent, the cause was submitted on the brief of Eileen A. Hirsch, assistant state public defender of Madison.�

COURT OF APPEALS

DECISION

DATED AND FILED

June 26, 2008

David R. Schanker

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.�

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.�

Appeal No.�	2007AP964-CR	Cir. Ct. No.� 2006CM354
STATE OF WISCONSIN��			IN COURT OF APPEALS


State of Wisconsin, �� Plaintiff-Appellant, �� v. Miguel E. Marinez, Jr., �� Defendant-Respondent.

�� APPEAL from an order of the circuit court for Jefferson County:� jacqueline r. erwin, Judge.� Affirmed.�

�� Before Dykman, Lundsten and Bridge, JJ.

�1�� LUNDSTEN, J. At issue here is whether a trial judge is prohibited from informing a defendant that the judge intends to exceed a sentencing recommendation in a plea agreement and offering the opportunity of plea withdrawal.� In State v. Williams, 2000 WI 78, 236 Wis. 2d 293, 613 N.W.2d 132, the supreme court declined to adopt a new rule mandating that judges follow this practice.� Here, the State argues that the reasoning employed in Williams dictates that a judge may not tell a defendant that the judge intends to exceed a sentencing recommendation.� We disagree, and conclude that trial judges may employ this practice.� Accordingly, we affirm.[1]

Background

�2�� The State charged Marinez with misdemeanor disorderly conduct involving domestic abuse.� Marinez grabbed his wife, pushed her out of their apartment, and locked her out.

�3�� The parties reached a plea agreement in which Marinez would enter a guilty plea in exchange for a joint sentencing recommendation of a $100 fine.� The trial judge accepted Marinez�s plea and proceeded to sentencing.� The judge asked about Marinez�s record and was informed that Marinez had a criminal history, including a battery, and that he was currently facing felony charges involving the physical abuse of a child.

�4�� The judge informed Marinez that she intended to exceed the plea agreement recommendation and �do something substantially different.�� The judge offered Marinez the opportunity to withdraw his plea.� The prosecutor objected, arguing that the judge was not permitted to give Marinez the option of withdrawing his plea.� The trial judge overruled the objection, explaining her decision as follows:

Particularly in a case where settlement negotiations were based on incomplete or faulty information and the defendant relied on sentencing recommendation promises, the Court deems it fair to allow plea withdrawal.� It is true that Mr. Marinez knew the Court could impose the maximum penalty.� It is also true that a sentencing court is not required to allow a defendant to withdraw a plea under these circumstances.� Nothing, however, prohibits this use of discretion where, as here, the Court finds a fair and just reason to allow withdrawal and the State has not demonstrated substantial prejudice.

(Citations omitted.)� Marinez opted to withdraw his plea, and the State petitioned for leave to appeal the court�s nonfinal order allowing plea withdrawal.� We granted leave to appeal, and then certified the issue to the supreme court.� The supreme court refused our certification.

Discussion

�5�� As noted, the State relies on Williams, and that is where we begin.� In Williams, the parties reached a plea agreement that included a sentencing recommendation.� Williams, 236 Wis. 2d 293, �4.� The trial judge accepted Williams� guilty plea and then substantially exceeded the recommendation.� Id., ��4, 8, 9.� Williams sought to withdraw his plea, but the judge denied the request.� Id., ��10-11.�

�6�� Williams appealed.� He eventually asked the supreme court to �adopt a new rule of procedure, which would require that if a trial judge anticipates exceeding the state�s sentence recommendation under a plea agreement, the trial judge must inform the defendant of that fact and allow the defendant to withdraw his or her plea.�� Id., �1 (emphasis added); see also id., �15.� The Williams court declined to adopt this �new rule� for two reasons.� Id., ��19-21.

�7�� First, the court deemed the rule unnecessary because existing plea procedures require that, as part of a voluntary plea, a defendant must be informed and understand that the State�s sentencing recommendation does not bind the court.� See id., ��20-25.

�8�� Second, the court viewed the rule as improperly injecting trial judges into the plea bargaining process.� See id., ��20-21, 26, 31.� The court said that �[r]equiring a trial judge to approve or disapprove of a particular sentence recommendation prior to sentencing would in effect cause the trial court to participate in plea bargaining and therefore would undermine the voluntariness of the plea.�� Id., �26 (emphasis added).[2]

�9�� The State argues in this case that it necessarily follows from the second reason in Williams that a trial judge is prohibited from informing a defendant that the judge intends to exceed the sentencing recommendation and allowing the defendant to withdraw a plea.� We disagree.

�10�� Although the Williams court�s second reason for its decision might be understood as casting doubt on the propriety of this practice, we do not read Williams so broadly.� In that case, the supreme court focused its attention on whether it should require all trial judges to employ this practice.� The court repeatedly spoke in terms of whether it should adopt a �new rule� of procedure under which a trial judge would be �requir[ed]� to or �must� inform a defendant of the judge�s intent to exceed the sentencing recommendation and allow the defendant to withdraw his or her plea.� Id., ��1-2, 15, 26, 31; see also State v. Hampton, 2004 WI 107, �37, 274 Wis. 2d 379, 683 N.W.2d 14 (�In Williams, this court was asked to adopt a new rule of procedure requiring a trial judge who anticipated exceeding the state�s sentencing recommendation under a plea agreement, to inform the defendant of the judge�s anticipated action and to allow the defendant to withdraw his plea.� (emphasis added)).

�11�� Notably, the Williams court was aware that some trial judges engage in this practice.� See Williams, 236 Wis. 2d 293, �35 (Abrahamson, C.J., concurring).� Yet, as the State concedes, �the supreme court in Williams did not expressly prohibit circuit courts from employing the procedure that it declined to mandate.�� Perhaps the court, without saying so, concluded that there is a significant difference between permitting and requiring on a topic that trial judges are well positioned to address without rigid mandates.

�12�� Accordingly, we do not read Williams as addressing whether the practice is prohibited.� Rather, the better reading of Williams is that the court reserved that question.� We therefore decline the State�s invitation to upset the status quo by reading Williams to prohibit the practice.�

�13�� The State argues in the alternative that the circuit court erroneously exercised its discretion in permitting plea withdrawal.� The State reasons that the trial judge based her decision on two erroneous factual findings:� (1) that Marinez �relied on sentencing recommendation promises,� and (2) that �settlement negotiations were based on incomplete or faulty information.�� We view this argument as an end-run on the central issue in this case, namely, whether the reasoning of Williams should be read as prohibiting a judge from informing a defendant of the judge�s intent to exceed a sentencing recommendation and allowing such defendant the opportunity of plea withdrawal.� If this practice is permissible, it need not be premised in this case on a finding that Marinez relied on the sentencing recommendation when entering his plea or that settlement negotiations were based on incomplete or inaccurate information.�

Conclusion

�14�� Accordingly, we conclude that the trial judge properly informed Marinez of her intent to exceed the plea agreement and that she properly permitted him to withdraw his plea.

�� By the Court.�Order affirmed.

[1] This appeal was originally a one-judge appeal.� It was converted to a three-judge panel by order on June 15, 2007.� See Wis. Stat. Rule 809.41(3) (2005-06).

[2] We have difficulty reconciling this second reason with case law suggesting that, after a plea agreement has been reached, but before the plea is entered, a judge may inform the parties whether the judge will ��concur in the proposed disposition,�� see State v. Wolfe, 46 Wis. 2d 478, 488-89, 175 N.W.2d 216 (1970) (quoting ABA Standards for Criminal Justice�Pleas of Guilty, � 3.3 (Approved Draft, 1968)), or, in the case of an agreement seeking dismissal of charges, a judge may reject an agreement, see State v. Comstock, 168 Wis. 2d 915, 927-29, 485 N.W.2d 354 (1992); Salters v. State, 52 Wis. 2d 708, 715, 191 N.W.2d 19 (1971); State v. Roubik, 137 Wis. 2d 301, 305-08, 404 N.W.2d 105 (Ct. App. 1987).� It is not apparent why the rule proposed in Williams constitutes participation in plea negotiations any more than in those scenarios.� In all these situations, the effect of the judge�s action is to communicate the judge�s view of an aspect of a plea agreement and effectively send parties back to the bargaining table.� Thus, it appears to us that the issue is the same pre-plea and post-plea, and whatever is permissible or required in the post-plea context should seemingly apply in the pre-plea context.

Case No.:	2007AP964-CR
Complete Title of Case:		�Petition for Review filed