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COURT OF APPEALS DECISION DATED AND RELEASED July 2, 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. 95-2667-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
WILLIAM J. PERRY,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: DIANE S. SYKES, Judge. Affirmed.
Before Sullivan, Fine
and Schudson, JJ.
SCHUDSON,
J. William J. Perry appeals from a
judgment of conviction for armed robbery, party to a crime, and from the order
denying his postconviction motion. He
argues that the prosecutor breached the plea agreement by informing the trial
court of an additional conviction, altering the sentencing matrix score on
which the agreement had been based. We
conclude that the prosecutor did not breach the agreement by advising the trial
court of additional, accurate information about Perry's criminal record. Therefore, we affirm.[1]
The facts are not
disputed. During the guilty plea
hearing, the prosecutor informed the trial court of the plea agreement:
Your
Honor, the State is going to recommend consistent with the matrix. When I filled the matrix out with [the
defendant's attorney], we determined that he fits into the zero on the A scale
and a one on the B scale, placing him at forty-eight to sixty months. I did not know at the time whether he had
been convicted of an open drug case that was pending in the system. That would change the A scale to a two. The B scale would remain at a one and that
would place him at sixty to seventy-eight months.
The State is going to recommend consistent with
the matrix as I understood it to be at the time that I filled it out, which
would be forty-eight to sixty months....
On
questioning from the court, Perry's lawyer agreed that this was an accurate
statement of the agreement.
At the sentencing
hearing, the trial court reviewed a completed sentencing matrix and then
invited the parties to offer their recommendations. The prosecutor stated:
Your
Honor, the State was going to recommend consistent with the matrix as I had
filled it out without—not knowing about his out of state conviction which would
have been [48] to 60 months in the Wisconsin state prison system. And I feel that I have to make that
recommendation because that's the recommendation Mr. Perry believed I would be
making.
Obviously, the new matrix places him about
double that. But I'm going to stick
with the recommendation that I had made earlier ....
Perry
contends that these statements constituted a breach of the agreement. We disagree.
“[P]lea
bargaining must be attended by procedural safeguards to ensure that a defendant
is not treated unfairly” because a plea agreement induces a defendant to waive
his or her fundamental right to a trial.
State v. Beckes, 100 Wis.2d 1, 3-4, 300 N.W.2d 871, 872
(Ct. App. 1980). Although the
prosecutor is not required to enthusiastically advocate for a particular
sentence, the prosecutor “may not render less than a neutral recitation of the
terms of the plea agreement.” State
v. Poole, 131 Wis.2d 359, 364, 394 N.W.2d 909, 911 (Ct. App.
1986). Where, as here, the facts are
undisputed, we independently review whether the State's conduct violated the
terms of the plea agreement, benefitting from the trial court's analysis. State v. Wills, 193 Wis.2d
273, 277, 533 N.W.2d 165, 166 (1995).
Denying Perry's postconviction motion, the trial court explained:
Both the prosecutor and the defense
attorney, as officers of the court and in the exercise of their professional
responsibilities, were obliged to advise the court of any errors in the scoring
of the matrix or change in the defendant's status which would affect the matrix
score.
In this case, the plea negotiations were based
upon the matrix score, with the prosecutor agreeing to recommend a sentence
“consistent with the matrix.” At the
time the negotiation was entered into and the agreement to recommend
“consistent with the matrix” was made, the matrix was incorrectly scored. Nevertheless, as the transcript reveals, the
prosecutor maintained her original recommendation even though it was based upon
an inaccurately scored matrix. In doing
so, however, she noted the accurate information and score to the court, as she
was obliged as an officer of the court to do.
We agree. This court has recognized “a strong public
policy of providing all relevant information to a trial court charged with the
responsibility of sentencing a criminal defendant.” State v. McQuay, 148 Wis.2d 823, 827, 436 N.W.2d
905, 906 (Ct. App. 1989), rev'd on other grounds, 154 Wis.2d 166, 452
N.W.2d 377 (1990). Further, “pertinent
factors relating to the defendant's character and behavioral pattern cannot be
immunized by a plea agreement between the defendant and the state.” Id. at 826, 436 N.W.2d at
906. Certainly, in most if not all
cases, a trial court's accurate understanding of a defendant's full criminal
record is critical to informed and intelligent sentencing. Where, as here, a prosecutor provides a
neutral, accurate statement of a defendant's criminal record and its impact on
the sentencing matrix, the prosecutor has not breached the plea agreement.
By the Court.—Judgment
and order affirmed.
Recommended for
publication in the official reports.