COURT OF APPEALS DECISION DATED AND FILED June 26, 2008 David R. Schanker Clerk of Court of Appeals |
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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. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT IV |
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State of Plaintiff-Respondent, v. Dennis J. Bravick, Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
¶1 VERGERONT, J.[1] Dennis Bravick appeals the circuit court’s order revoking the deferred prosecution agreement and the resulting adjudication of guilt and sentence for misdemeanor bail jumping contrary to Wis. Stat. § 946.49(1)(a). We conclude the circuit court did not err in revoking the deferred prosecution agreement and we therefore affirm.
BACKGROUND
¶2 The criminal complaint in this action charged that Bravick
failed to comply with a condition of his bond in another case, in which he was
charged with four counts of invasion of privacy. The invasion of privacy criminal complaint
alleged that Bravick, a middle school physical education teacher, entered the
girls’ locker room while girls were changing clothes. The bond condition he was charged with
violating in this case was not going on the premises of any
¶3 In this case, Bravick and the prosecutor entered into a plea agreement whereby Bravick pleaded no contest to misdemeanor bail jumping and entered into a deferred prosecution agreement. Under the terms of this agreement, the prosecution of the charge would be deferred for twenty-four months provided Bravick complied with the conditions of the agreement. If he breached any term of the agreement during that time, the prosecutor could move to set aside the agreement and, if the court vacated it, he could be sentenced on the charge; if he fully complied with the agreement during that time, this case would be dismissed with prejudice. At the same hearing at which the court accepted Bravick’s plea in this case and approved the deferred prosecution agreement, the court, at the prosecutor’s request and with the defense’s concurrence, dismissed the invasion of privacy case.[2]
¶4 The prosecutor subsequently moved to revoke the deferred prosecution because of Bravick’s breach of the following condition:[3]
You agree that you will not initiate contact of any kind with any of the complaining witnesses or alleged victims in Columbia County Case No. 2005CM000227 including all those who were named on the State’s Witness list filed on September 6, 2005 and those named in the matter of a dispute between the Poynette School District and the Poynette Education Association, WERC No. MA-13090, No. 65026 Case No. 16. A copy of the State’s witness list, in 2005CM000227, is attached hereto and incorporated herein by reference. Your mere presence in a public place, other than Poynette School District property, where a complaining witness is present does not, in an [sic] of itself, constitute initiation of contact. This provision does not prohibit you from attending the church of your choice nor does it limit your attorney’s ability to contact said witnesses unless such contact is directed by you solely for the purpose of harassing or intimidating the person contacted.
¶5 The prosecutor asserted that Bravick violated this condition
when he responded to a letter to the editor, published in The Poynette Press, by the mother of one of the girls who had been
in the shower room. After an evidentiary
hearing, the court made the following findings of fact. The mother’s name, Kris Anderson, was on the
list of witnesses attached to the deferred prosecution agreement. Her letter defended the students who were
involved as witnesses in the prosecution of the invasion of privacy charges. Bravick’s letter to the editor was published
in The Poynette Press one week
later. His letter was a direct response
to
Mrs. Anderson, you were there and witnessed your daughter say “Well, I’d been in the water, and then you go out, and you kind of feel dizzy so I didn’t know if I did or not.”
Countless times during the arbitration hearing your daughter claims she does not know what she saw.
Mrs. Anderson, you daughter claims to have seen me past the shower area a clear 10 feet past the shower wall.
The same thing your daughter claims to have heard when she looked. How did I walk 5-6 feet past these three students in the showers so your daughter could claim to see me with blurred vision because she was dizzy?
Several of the students in your daughter’s class knew their name was on this list that was destroyed by George Kintzer, the trained professional.
If you are looking for bravery then ask your daughter to tell the truth.
¶6 The court found not credible Bravick’s testimony that he
intended to communicate with the general public and did not know
¶7 The court withheld sentence and placed Bravick on probation for one year.
DISCUSSION
¶8 On appeal, Bravick argues that the court erred in deciding he
breached the deferred prosecution agreement because: (1) the court’s finding that “it was
practically certain that his letter would be seen by
¶9 The historic facts surrounding the alleged breach of a deferred
prosecution agreement are found by the circuit court sitting as fact finder,
and on review we accept them unless they are clearly erroneous.
¶10 Whether the conduct as found by the circuit court constitutes a
breach of the deferred prosecution agreement is a question of law, which we
review de novo. See Naydihor, 270
¶11 Bravick asserts that the State must prove a “material
and substantial breach” of the deferred prosecution agreement, citing Naydihor,
id.,
and that the State must do so by clear and convincing evidence, citing State
v. Jorgensen, 137 Wis. 2d 163, 167-68, 404 N.W.2d 66 (Ct. App.
1987). This is the standard the circuit
court applied. Both Naydihor and Jorgensen
concern an alleged breach of a plea agreement, not a deferred prosecution
agreement. The State does not respond to
Bravick’s assertion that they provide the applicable standard for what the
State must prove in this case. We
therefore treat this as a concession that Bravick is correct. See
Charolais
Breeding Ranches v. FPC Securities, 90
¶12 Bravick does not argue that “contact” may not be a written communication. Instead, he contrasts the court’s finding that “it was practically certain that his letter would be seen by Ms. Anderson” with a hypothetical situation in which Bravick or someone at his direction delivered the letter to her, suggesting that this hypothetical situation would constitute contact. As we understand Bravick’s argument, unless he or someone at his direction made certain she saw the letter, no contact occurred; and there is no evidence he or someone at his direction made certain she saw his letter in the paper.
¶13 It appears that Bravick is confusing the meaning of “contact”
with the question whether contact was intended by Bravick. Because Bravick does not argue that a written
communication is not a “contact” within the meaning of this deferred
prosecution agreement, we assume without deciding that it may be; and there is
no dispute that Anderson did read his letter in the newspaper. We agree with Bravick’s implicit premise that
Bravick must have intended contact with
¶14 The court’s finding that Bravick’s letter, though nominally
addressed to the editor and published in the paper, is in content a direct and
personal communication from Bravick to
¶15 Bravick also contends that he did not initiate the contact with
¶16 Accepting the circuit court’s assessment of Bravick’s
credibility, which finds support in the record, and accepting the court’s other
findings, we conclude there was clear and convincing evidence of a material and
substantial breach of the deferred prosecution agreement. We do not agree with Bravick that this was a
minimal breach, if any, that does not warrant revocation.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(f) (2005-06). All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] At the sentencing in this case, the parties agreed that this dismissal would be with prejudice.
[3] The prosecutor also moved to revoke on a different ground, but the court did not determine whether there was a violation of that other condition, and it is not relevant to this appeal.