COURT OF APPEALS DECISION DATED AND RELEASED FEBRUARY 13, 1996 |
NOTICE |
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. 95-1647-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
RALPH G. BARKE,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Oconto County: LARRY L. JESKE, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Ralph Barke appeals his sentence for three counts of
second-degree sexual assault of a child, having pleaded guilty to the
charges. Barke received six years in
prison on one count and ten years of consecutive probation on the other two
counts. The trial court dismissed seven
other sexual assault charges and read in five of the seven at sentencing. As part of the plea agreement, which the
prosecutor described for the trial court at the plea hearing, the prosecution
promised to recommend the lesser of either a ten-year sentence or of whatever
the presentence report recommended for one of the counts, with probation on the
remaining two counts.
At the sentencing
hearing, after the presentence report recommended a four-to-six year sentence
for one count, the trial court asked the prosecutor to refresh the court's
recollection on the plea agreement. The
prosecutor then reiterated the agreement, including the conditions concerning
the then lapsed, irrelevant ten-year figure.
Barke argues that the prosecutor violated the plea agreement by
rementioning the lapsed ten-year figure at the sentencing hearing once the
presentence report had recommended a lesser sentence. He considers the violation both ordinary and plain error. We reject Barke's arguments and affirm his
convictions.
Barke has given us no
basis for resentencing. First, Barke
did not object to the prosecutor's comments at sentencing and therefore waived
the matter. State v. Smith,
153 Wis.2d 739, 741, 451 N.W.2d 794, 795 (Ct. App. 1989). Barke also failed to object to the ten-year
figure when the prosecution mentioned it at the plea hearing. Although Barke claims that Smith
was wrongly decided, we disagree with this claim and are bound by prior
decisions. Section 752.41(2), Stats.
We note that Barke's six-year sentence fell within the four-to-six year
range recommended by the presentence report and ultimately sought by the
prosecution.
Second, Barke raises his
plain error argument for the first time in his reply brief, and we therefore
decline to consider it. Estate of
Bilsie, 100 Wis.2d 342, 346 n.2, 302 N.W.2d 508, 512 n.2 (Ct. App.
1981). Last, while we do not decide the
matter, we find persuasive the State's argument that the prosecutor did not
materially breach the plea agreement.
The prosecutor had already mentioned the conditional ten-year sentence
recommendation at the plea hearing, and he merely repeated this as background
information at the sentencing hearing.
The prosecutor never asked the sentencing court to impose a ten-year
sentence. In short, we doubt the
existence of any plain error.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.