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COURT OF APPEALS DECISION DATED AND RELEASED April 24, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1497-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
LARRY COOK,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Racine County: DENNIS J. FLYNN, Judge. Affirmed.
Before Anderson, P.J.,
Brown and Nettesheim, JJ.
PER CURIAM. Larry Cook appeals from
a judgment convicting him of possession of a controlled substance with intent
to deliver in violation of §§ 161.14(4)(t), 161.41(1m)(h)1 and 161.48, Stats., and sentencing him to four
years in prison. He also appeals from
an order denying his motion for sentence modification. He contends that the trial court erred when
it determined that no new factor existed which could be considered for purposes
of sentence modification. He also
contends that the prosecutor breached a plea agreement with him by opposing his
motion for sentence modification. We
reject both arguments and affirm the judgment and the order.
Following entry of a no
contest plea in this case, Cook testified favorably to the State in an
unrelated criminal case against another defendant (the Britt case). Cook contends that his cooperation with the
prosecutors in that case was anticipated at the time of sentencing in this
case, but was not considered as a factor at sentencing because the Britt case
had not yet been tried and he had not yet testified. He contends that cooperativeness is a relevant factor to be
considered at sentencing and that the information regarding his testimony
therefore constituted a new factor for sentencing purposes, necessitating
consideration by the trial court of whether his sentence should be reduced.[1]
A trial court may in the
exercise of its discretion modify a criminal sentence upon a showing of a new
factor. State v. Michels,
150 Wis.2d 94, 96, 441 N.W.2d 278, 279 (Ct. App. 1989). A defendant must establish the existence of
a new factor by clear and convincing evidence.
Id. at 97, 441 N.W.2d at 279. However, the issue of whether a set of facts constitutes a new
factor for sentencing purposes presents a question of law which we review
without deference to the trial court. Id.
A new factor is a fact
or set of facts highly relevant to the imposition of sentence but not known to
the trial judge at the time of sentencing, either because it was not then in
existence or because it was unknowingly overlooked by all of the parties. Id. at 96, 441 N.W.2d at
279. In addition, it must be an event
or development which frustrates the purpose of the original sentence. Id. at 99, 441 N.W.2d at
280. There must be some connection
between the factor and the sentencing which strikes at the very purpose for the
sentence selected by the trial court. Id.
Even if we accept Cook's
claim that the information regarding his cooperation is "new"
information, it is not highly relevant to his sentencing and clearly does not
strike at the very purpose for the sentence chosen by the trial court. A review of the sentencing transcript
reveals that the primary factors considered by the trial court in imposing
sentence were Cook's rehabilitative needs and the need to protect the
public. The trial court considered
Cook's past offenses while on probation and parole, his drug problems, and his
lack of employment and vocational skills.
It concluded that Cook had to be removed from society until his drug
abuse and vocational problems were dealt with and imposed a sentence directly
related to that goal. There is no
indication that it based the sentence on conclusions regarding Cook's moral
character or similar factors as to which his cooperativeness would be relevant. Consequently, as determined by the trial
court at the postconviction hearing, nothing in the information regarding
Cook's postsentencing testimony in the Britt case was highly relevant to the
sentence imposed by the trial court in this case or struck at the very purpose
of that sentence. A new factor for
purposes of sentence modification therefore was not shown.
Cook next contends that
in exchange for his testimony in the Britt case, the prosecutor agreed to
refrain from opposing any motion for sentence modification brought by him. He contends that the prosecutor breached
that agreement when he argued that Cook's cooperation in the Britt case did not
constitute a new factor for purposes of sentence modification.
Agreements between
prosecutors and criminal defendants are analogous to contracts and courts may
draw upon contract law principles for their interpretation. See State
v. Windom, 169 Wis.2d 341, 348, 485 N.W.2d 832, 835 (Ct. App.
1992). Wisconsin law provides that
unambiguous contractual language must be enforced as it is written. Id. When the parties to a written agreement
intend the writing to be the final expression of their agreement, the terms of
the writing may not be varied or contradicted by any prior written or oral
agreement in the absence of fraud, duress or mutual mistake. Dairyland Equip. Leasing v. Bohen,
94 Wis.2d 600, 607, 288 N.W.2d 852, 855 (1980). Parol evidence is inadmissible to vary or explain unambiguous
written contractual terms. Schmitz
v. Grudzinski, 141 Wis.2d 867, 872, 416 N.W.2d 639, 641 (Ct. App.
1987).
The record includes a
memorandum drafted by Cook's counsel and approved by the district attorney's
office dated April 6, 1994, one day before Cook testified in the Britt
trial. It provided: "This memorandum will set forth the
understanding and agreement negotiated for the truthful testimony of Larry Cook
as a prosecution witness." In it,
the prosecutor agreed that immediately after Cook's testimony in the Britt
trial, he would write to the chairperson of the parole board explaining that
Cook had cooperated with the investigation and prosecution of Britt, had
provided significant testimony on the State's behalf in that case, and had
testified at personal risk to himself.
The document was signed by Cook's attorney and the prosecutor, and
stated that "[t]his memorandum correctly states our understanding."
Because this agreement,
on its face, purports to set forth the final and complete agreement between the
State and Cook, it may not be altered by parol evidence indicating that before
its execution the prosecutor also told Cook that he would not oppose a motion
to modify sentence.[2] Moreover, it is undisputed that the
prosecutor fulfilled his agreement to write to the chairperson of the parole
board. Consequently, no basis exists to
conclude that the State breached any agreement with Cook or to disturb the
trial court's order denying postconviction relief.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.