State v. Richardson

WEDEMEYER, P.J.

¶ 1. Dalvell Richardson appeals from a judgment entered after he pled guilty to one count of armed robbery as party to a crime. He also appeals from an order denying his postconviction motion, which sought resentencing for an alleged breach of a plea agreement and claimed ineffective assistance of trial counsel for failing to object to the breach. Because the sentencing court's findings of fact in denying the motion were not clearly erroneous and its conclusion of law that no breach of the plea agreement occurred was reasonably based, we affirm.

I. BACKGROUND

¶ 2. On October 16, 1998, Richardson and an accomplice, who is only partially identified in the *714record, committed an armed robbery in a home located at 2228 North 40th Street. At the time of the incident, several adults and four minor children were present in the home. Pursuant to a plea agreement, Richardson agreed to plead guilty to the charge. In turn, the State agreed not to recommend any specific sentence at the time of sentencing. The State affirmatively indicated that it would leave the length of incarceration entirely up to the court.

¶ 3. During the sentencing hearing, the State iterated its position. The trial court sentenced Richardson to thirty-five years in prison. Richardson moved for resentencing. The basis for the motion was that despite hairing committed itself to taking no position as to the length of incarceration, the State "repeatedly suggested that a very lengthy sentence was appropriate." There was no hearing on the motion. In a written opinion, the sentencing court denied the motion for resentencing. Richardson now appeals.

II. ANALYSIS

¶ 4. Richardson claims the prosecutor violated the terms of the plea agreement by making comments during the sentencing hearing that suggested to the court that a lengthy sentence was required. The trial court found that the prosecutor's comments did not constitute a breach of the plea agreement. We agree.

¶ 5. Whether a prosecutor violated the terms of a plea agreement will depend on the circumstances of every case. If there is a disputed question of fact as to whether the prosecutor violated the terms of the agreement, we shall give deference to the factual findings of the trial court unless they are clearly erroneous. State v. Wills, 193 Wis. 2d 273, 277, 533 N.W.2d 165 (1995). *715If there are no disputed facts, the question is one of law to be reviewed independently. Id. If, on the other hand, there is both a disputed question of fact and a question of whether the facts establish a breach, then we must first review the facts under the clearly erroneous standard of review and then determine as a matter of law independently whether the prosecutor violated the terms of the plea agreement. Id. at 277 — 78.

¶ 6. At the sentencing stage of a criminal proceeding, pertinent factors relating to the defendant's character and behavior pattern cannot be immunized by a plea agreement between the defendant and the state. Elias v. State, 93 Wis. 2d 278, 285, 286 N.W.2d 559 (1980). 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, 125-26, 452 N.W.2d 377 (1990).

¶ 7. Although what transpired at the sentencing hearing is not in dispute, the inferences drawn from the oral presentation of both the State and defense are disputed. Thus, we are presented, as was the postcon-viction motion court, with a record ripe for finding facts and reaching a conclusion of law, even though no motion hearing occurred.

¶ 8. The plea agreement, as entered in the record, reads:

[DEFENSE COUNSEL]: ... My client is willing to enter into a plea, based upon the negotiations being that [the prosecutor] will not recommend any specific sentence at the time of sentencing.
THE COURT: [Prosecutor].
[PROSECUTOR]: To be specific, the State is walling to leave the length of the incarceration entirely up to the Court, will not make any specific *716numerical type of recommendation. It will just be incarceration and restitution and leaving all specifics to the Court.

¶ 9. Richardson argues that the following statements made by the prosecutor at the sentencing hearing constituted a breach of the plea agreement: "this could have been a multiple count situation," "this particular case is, if not the most serious case I've handled this year, it is certainly among the top two or three," "[t]his is one of the most serious non-fatal crimes that I have dealt with." Richardson contends these comments "constituted a forbidden 'end-run' around the agreement." We are not persuaded.

¶ 10. After reviewing the written arguments of both parties and the record itself, the sentencing court made the following findings of fact. At the time of sentencing, the contents of the criminal complaint and pre-sentence report could have justified a multi-count charge against Richardson. The court "gleaned this for itself." From its review of the record, the court knew the facts surrounding the offense and would have considered the totality of the facts "with or without the prosecutor's comment regarding the potential for a multiple count information." The court found that the State was not precluded by the agreement from setting forth its honest opinion of the nature of the offense. It found that the prosecutor's appraisal of the case was supported by a list of ten aggravating factors — most of which were already known to the court — and five mitigating factors. It further found that the prosecutor did not deviate from the terms of its plea agreement. The prosecutor did not make a specific recommendation, but left the amount of time to be served entirely up to the court.

*717¶ 11. Without full context, a review of the prosecutor's introductory sentencing remarks might very well lead one to conclude that the prosecutor was attempting an "end-run" around the intent of the plea agreement. This first blush reaction, however, is not warranted when we consider the remarks in their full context. A complete review of the sentencing transcript reveals that Richardson's defensive ploy was to divert attention to his unknown accomplice, and to deflect responsibility onto the accomplice as the mastermind because the accomplice knew the home was a drug house used by individuals with prior drug convictions and an easy mark. Viewed in this light, it is not unreasonable to conclude that the prosecutor's comments were intended only to keep the factors for sentencing in their proper perspective. When a party opens the door on a subject, he cannot complain if the opposing party offers evidence on the same subject to explain, counteract, or disprove the evidence. United State v. Touloumis, 771 F.2d 235, 241 (7th Cir. 1985).

¶ 12. Further, the court found that the plea agreement did not prohibit the prosecutor from "setting forth its honest opinion of the nature of the offense, i.e. that it was one of the most serious armed robberies it had dealt with." The plea agreement indicated the State would not make a specific recommendation. The State did not. The comments that Richardson refers to as attempting an "end-run" around the agreement, taken in context, provided the trial court with relevant information, which cannot be immunized by a plea agreement or bargained away. Elias, 93 Wis. 2d at 285; McQuay, 154 Wis. 2d at 125-26.

¶ 13. In summary, we conclude that the sentencing court's findings of fact in its written decision *718denying the postconviction motion are not clearly erroneous and provide a sufficient basis for its conclusion that no breach of the plea agreement occurred. Sequentially therefore, there was no instance of ineffective assistance of trial counsel.

By the Court. — Judgment and order affirmed.