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COURT OF
APPEALS DECISION DATED AND
RELEASED April
4, 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. |
Nos. 95-2717-CR
95-2718-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
RODNEY
CALHOUN,
Defendant-Appellant.
APPEALS
from judgments of the circuit court for Monroe County: MICHAEL J. ROSBOROUGH, Judge. Affirmed.
VERGERONT,
J.[1] Rodney
Calhoun appeals from a judgment of conviction for misdemeanor battery contrary
to § 940.19(1), Stats., and
from a judgment of conviction for misdemeanor bailjumping contrary to § 946.49(1)(a),
Stats.[2] Calhoun pled guilty to each charge pursuant
to a plea agreement. He argues on
appeal that the State breached the plea agreement and asks that we remand for
resentencing before a different judge and order compliance with the plea
agreement. We affirm the convictions
and the sentences because we conclude the State did not breach the plea
agreement.
BACKGROUND
Calhoun
was initially charged with third-degree sexual assault, disorderly conduct with
a penalty enhancement for threat of use of a dangerous weapon, misdemeanor
battery, and disorderly conduct. The
charges arose out of a series of incidents with his wife. An amended complaint dropped the sexual
assault charge after Calhoun's wife partially recanted her allegations of
sexual assault. As a condition of his
release on bond, Calhoun was ordered not to have any contact with his wife. Calhoun was subsequently charged with
committing felony bailjumping by violating the bond condition. This second complaint alleged that Calhoun
had called his wife and asked her to contact his counsel to help "get him
out of this mess."
On
May 31, 1995, the parties appeared in court seeking approval of a deferred
prosecution agreement whereby Calhoun would enter Alford pleas to
misdemeanor battery and disorderly conduct in the first case and misdemeanor
bailjumping in the second case. The
court declined to approve that agreement because Calhoun denied that he had
battered his wife and stated that he was only entering into the agreement to
try to save his marriage. Calhoun's
counsel also stated that Calhoun had a solid alibi defense to the bailjumping
charge. The court explained that under
these circumstances it would not accept the agreement because the diversion
program did not work when people went into counseling denying that they have
done anything wrong. The trial court
set a trial date for the first case.
On
August 2, 1995, before the scheduled trial date, the parties appeared in court
with another plea agreement. The
agreement called for Calhoun to plead to misdemeanor battery in the first case
and to misdemeanor bailjumping in the second case. The State was to recommend withholding sentence and placing
Calhoun on probation for two years with AODA and domestic abuse assessments and
treatment, and fines and costs left to the court's discretion. As part of the agreement, the State agreed that
it would not produce any testimony at the plea hearing. Calhoun's counsel later explained that the
purpose of this portion of the agreement was that Calhoun's wife could be a
very convincing witness, and it was difficult to tell when she was telling the
truth and when she was not because she made contradictory statements; he had
concerns that she would draw sympathy from the court.
At
the August 2, 1995 hearing, Calhoun denied that a battery took place. The court directed the prosecutor to present
Calhoun's wife's testimony concerning the battery alleged in the first
case. When Calhoun's attorney informed
the court that part of the agreement was that the State would not produce
testimony, the court repeated that it was directing the State to present testimony,
and that Calhoun could withdraw from the plea agreement if he wished. After conferring with Calhoun, his counsel
advised the court that they "[had] no problem with allowing the alleged
victim---or the victim to testify."
The
prosecutor questioned Calhoun's wife on the circumstances of the battery, and
on the telephone and personal contacts that had violated the bond condition of
no contact. Calhoun's attorney
attempted to limit Calhoun's wife's testimony on the bailjumping charge to the
one telephone contact alleged in the second complaint, with no details of that
conversation, but the court overruled those objections. Calhoun's counsel cross-examined Calhoun's
wife, attempting to impeach her credibility.
The court overruled the prosecutor's objection that some of this
questioning was irrelevant. On
redirect, the State asked a few questions on the matters raised in
cross-examination, with the court overruling Calhoun's counsel's objection that
the State had agreed not to present testimony.
At
the close of the testimony, the court declined to accept Alford
pleas, giving Calhoun the choice of pleading guilty or not guilty. Calhoun entered a guilty plea to each of the
two charges.
Calhoun's
counsel explained that Calhoun wanted to enter Alford pleas[3]
because he did not admit that a battery took place. The court declined to accept Alford pleas and
stated that Calhoun's choice was to plead guilty or not guilty and go to
trial. The court then engaged in a
thorough colloquy as required by State v. Bangert, 131 Wis.2d
246, 389 N.W.2d 12 (1986). The court
emphasized that it did not need to accept the recommendation of no jail time
and advised Calhoun that it was considering jail time at that point despite
that recommendation. Calhoun said he
understood that and still wanted to proceed with the plea agreement. After hearing Calhoun's counsel's
explanation concerning the State's agreement that the State would not put on
testimony and his view that the State's questioning went beyond what was
necessary to establish a factual basis for the pleas, the court asked Calhoun
if he wanted to withdraw his pleas and go to trial. Calhoun said he did not want to.
The
court accepted Calhoun's pleas. On the
battery charge, it imposed and stayed a nine-month jail sentence, placed
Calhoun on probation for two years, and, as conditions of probation, ordered
sixty days in jail, AODA and domestic abuse assessments, certain fines and
assessments, and no contact with his wife.
On the bailjumping charge, the court ordered a consecutive six-month
jail sentence, with certain fines and assessments.
DISCUSSION
If
a plea rests in any significant degree on a promise or agreement of the
prosecutor, so that it can be said to be part of the inducement or
consideration, such promise must be fulfilled.
Santobello v. New York, 404 U.S. 257, 262 (1971). Where, as here, the facts are undisputed,
whether the State violated the plea agreement is a question of law which we
review de novo. See State
v. Wills, 193 Wis.2d 273, 277, 533 N.W.2d 165, 166 (1995).
Calhoun
contends that the State breached the plea agreement because the direct and
redirect examination of Calhoun's wife went beyond that necessary to establish
a factual basis for the plea. We
conclude that the State did not breach the plea agreement because it was
ordered by the court to present testimony to provide a factual basis for the
charges, and its questioning of Calhoun's wife was appropriate given that
order.
A
plea agreement that does not allow the sentencing court to be apprised of
relevant information is void as against public policy. State v. McQuay, 154 Wis.2d
116, 125, 452 N.W.2d 377, 381 (1990).
Whether to accept an Alford plea is within the trial
court's discretion. State v.
Garcia, 192 Wis.2d 845, 856, 532 N.W.2d 111, 115 (1995). Before accepting either a guilty plea or a
plea of no contest, the court must make such inquiry as satisfies it that the
defendant, in fact, committed the crime charged. Section 971.08(1)(b), Stats.
When
Calhoun denied that a battery took place and contested the allegations in the
complaints, the court properly ordered the State to present testimony to
establish a factual basis for the pleas.
The State had to comply with that order or the court would not accept
the pleas. It was not possible for the
State to comply with that order and comply with its agreement not to present
testimony. At that point, Calhoun had
the option, which the court made clear to him and which he discussed with his
attorney, of going forward with the plea hearing or proceeding to trial. He chose the former and agreed to permit his
wife to testify.
Calhoun
recognizes that the State had no choice but to present Calhoun's wife's
testimony when the court directed it to do so.
However, he argues that the State should have limited questions to the
bare minimum necessary to establish a factual basis for the pleas. We reject this argument. The State had no obligation to attempt to
guess how little testimony it could present while still satisfying the court
that there was a factual basis for the pleas.
That was not what the State had agreed to. The court's ruling on the objections by both parties was a clear
indication that it wanted a full development of the facts relating to the
charges. The State's questions, on
direct, were appropriately focused on laying a factual basis for the
pleas. The questions on redirect were
appropriate given defense counsel's cross-examination.
Calhoun
made the decision not to admit that the complaints provided a factual basis for
the pleas. This entailed the obvious risk
that the court would want testimony to establish that basis, with the equally
obvious result that the State could not comply with its agreement not to
present testimony. Calhoun had the
right to have the State honor its agreement if the court did not direct
otherwise. But he did not have the
right to limit the court's ability to have the information it felt necessary in
order to have valid pleas. Calhoun had
two opportunities--once before his wife testified and once after--to withdraw
his pleas in view of the court's determination that it wanted Calhoun's wife's
testimony. He is not entitled to
enforcement of the plea agreement before a different sentencing judge.
By
the Court.—Judgments affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.