Wisconsin Court of Appeals finds no breach where plea agreement was silent.

• Author: Ziemer, David

Byline: David Ziemer

The Wisconsin Court of Appeals held on March 9 that, when a plea agreement was silent on the issue of whether the State would recommend consecutive or concurrent sentences, the prosecutor's request for consecutive time was not a breach of the agreement.

Richard L. Bowers was charged with operating a motor vehicle with a prohibited alcohol concentration and operating while intoxicated (5+). At the time, he was on probation for an OWI-5 conviction, for which sentence had been withheld.

Pursuant to a plea agreement, Bowers pleaded no contest to the operating a motor vehicle while intoxicated charge and the other counts were dismissed. The agreement provided that the State would recommend two years initial confinement and three years of extended supervision. The agreement was silent as to whether the sentence should be consecutive or concurrent to the sentence for OWI-5.

According to the opinion, at sentencing, however, the State incorrectly recommended two and one-half years of initial confinement and two and one-half years of extended supervision, consecutive to the OWI-5.

Bowers' attorney objected to the misstatement of the agreement's terms, and the State amended its recommendation as to the length of the sentence. However, his attorney did not object to the request that it be consecutive.

The court sentenced Bowers to three years initial confinement, and two years extended supervision.

Bowers moved for resentencing, claiming that the state's initial recommendation materially and substantially breached the agreement, and that his attorney was ineffective for failing to object to the request for consecutive time.

Winnebago County circuit Court Judge Barbara H. Key denied the motion, and Bowers appealed. The court of appeals affirmed in a decision written by Judge Daniel P. Anderson and joined by Judge Harry G. Snyder. Judge Richard S. Brown dissented on the consecutive/concurrent issue.

The court agreed with the State that the first of the claimed breaches was not material and substantial, analogizing the case to that in State v. Knox, 213 Wis.2d 318, 570 N.W.2d 599 (Ct.App.1997).

In Knox, the prosecutor misstated the agreement by requesting consecutive, rather than concurrent, sentences. Recognizing the error, however, the prosecutor advised the court of the mistake, and recommended the concurrent sentence that had been bargained for.

The court in Knox held, "the deviation from the original terms drew a prompt objection...