In Wisconsin criminal law, the word “sentence” is sometimes used generically to include probation; other times it’s used in a technical sense to refer only to imprisonment, and thus excludes probation. See, e.g., State v. Fearing, 2000 WI App 229, ¶6, 239 Wis. 2d 105, 619 N.W.2d 115. In this case the state attempts to defend its breach of a plea agreement by saying its agreement to cap its “sentence” recommendation referred to the technical meaning of “sentence,” and thus allowed it to also make a recommendation for consecutive probation. The court of appeals isn’t persuaded.
Weigel pleaded guilty to two charges: physical abuse of one child and chronic neglect of another, both as party to a crime; two other charges were dismissed and read in. In exchange for her pleas, the state agreed to “cap [its] recommendation at a 20 year sentence, including initial incarceration and extended supervision.” (¶¶2-3). Weigel was in front of the same judge who’d given the less culpable father of the children a 20 year bifurcated sentence and 5 years of probation. (¶4).
The PSI recommended 20 years (14 in, 6 out) while Weigel, in a defense sentencing report and memorandum, recommended 20 years (10 in, 10 out) on one count and 5 years of probation on the other. (¶5). At sentencing, the state argued the PSI’s recommendation of 14 plus 6 was “pretty much spot on.” So far so good, and consistent with its agreed-upon cap. But the prosecutor then referred to the defense sentencing recommendation as one “for a 25 year sentence,” suggested that recommendation came from the fact the father got “a 25 year sentence,” and then said “there’s not a lot that we’re arguing about today. Both parties agree that 25 years in total is appropriate. The only issue … is the amount of initial incarceration.” (¶6) (emphasis supplied). The court imposed 30 years (20 years in, 10 years out). (¶7).
The prosecutor’s statement breached the plea agreement:
¶16 …. At worst, the State’s … remark [that 25 years in total is appropriate] directly contradicted the plea agreement by explicitly recommending a sentence of twenty-five years. At best, the State’s remark constituted an indirect “[e]nd run around [the] plea agreement”—i.e., a “covert” indication “that a more severe sentence [wa]s warranted.” See [State v.] Williams, [2002 WI 1,] 249 Wis. 2d 492, ¶42[, 637 N.W.2d 733]. Such indirect undercutting of the plea agreement is likewise prohibited. See id.; see also, e.g., id., ¶¶47-48 (the State breached the plea agreement where it recited information in the PSI to imply that it agreed with the PSI’s harsher sentence and that it would not have entered into the plea agreement had it known that information); [State v.] Poole, 131 Wis. 2d [359,] 360, 364[, 394 N.W.2d 909 (1986)] (the State breached the plea agreement where it stated that the recommendation was “before we knew” that the defendant’s probation had been revoked in a separate case).
The state tries to avoid this result by arguing the plea agreement limited only what “sentence” it could recommend, and because probation isn’t a “sentence,” it wasn’t precluded from asking for probation in addition to the 20-year bifurcated sentence. But the state did not, in fact, explicitly recommend a bifurcated sentence and a term of probation. Instead, the state argued for 16 years of initial confinement and then said “25 years in total is appropriate.” (¶18). And in any event:
¶19 …[W]e agree with Weigel that “the [S]tate’s attempt to inject a technical definition of the word ‘sentence’ into the context of plea negotiations is misguided.” It is true that, in other contexts, we have observed that “generally probation is not considered a sentence.” See Fearing, 239 Wis. 2d 105, ¶6. This statement, however, was in reference to the meaning of the term “sentence” as used in particular statutes. Id. Thus, we observed, “While ‘sentence’ may also be used in a more general sense, to include probation, it is a legal term and should be given its legal meaning when used in the statutes and the law unless there are strong indications the term was used in a general sense.” Id. (emphasis added; internal quotation marks and quoted source omitted).
¶20 This is just such a case where the term “sentence” should be given its general or colloquial meaning and should not be interpreted to refer only to the bifurcated sentence. The question before us does not involve statutory interpretation; instead, in analyzing a plea agreement, we are guided by principles of contract law. See State v. Wills, 187 Wis. 2d 529, 537-38, 523 N.W.2d 569 (Ct. App. 1994); State v. Bembenek, 2006 WI App 198, ¶11, 296 Wis. 2d 422, 724 N.W.2d 685. “A contract is based on a mutual meeting of the minds as to terms, manifested by mutual assent.” Bembenek, 296 Wis. 2d 422, ¶11 (internal quotation marks and quoted source omitted). Here, the record shows that both Weigel and the State construed the term “sentence” broadly, to include any term of probation that might be imposed by the court. At the [postconviction] hearing, Weigel testified that she believed that “everything would be capped at 20 years.” And at sentencing, the State itself used the term “sentence” to refer to the combined bifurcated sentence and period of probation recommended by Weigel, describing that “total” “sentence” as “25 years.”
¶21 Moreover, although the email from the prosecutor did not explicitly state that the State would not recommend an additional term of probation, we agree with Weigel it would “defeat the purpose and spirit of the agreement” to permit the construction of the agreement now advanced by the State. As Weigel correctly notes, probation may have “major consequences,” including the possibility of revocation and additional prison time, meaning that Weigel’s “exposure would be much more significant than the 20-year cap [the] agreement contemplated.” “Contract law reads into commercial contracts a duty to deal in good faith,” and this principle applies equally to the plea agreement context. Wills, 187 Wis. 2d at 537. We conclude that it would be a violation of this contractual duty for the State, having agreed to “cap” its recommendation at a twenty-year bifurcated sentence, to then recommend an additional term of probation.
The court also concludes the breach was material and substantial. It roundly rejects the state’s claim (¶¶24-25) that Weigel wasn’t deprived of her bargained-for benefit because her own sentencing recommendation “implicitly modified” the terms of the plea agreement out of recognition that the father’s sentence effectively established the floor for her sentence:
¶26 …. Nothing in the plea agreement limited Weigel’s sentencing request; rather, Weigel’s only obligation was to plead guilty to two specified charges. Weigel held up her end of the bargain and remained free to argue for any sentence she chose. Therefore, Weigel’s seeking a twenty-five-year sentence did not and could not “implicitly modif[y]” the terms of an agreement that she had already fulfilled.
¶27 Moreover, we agree with Weigel that her strategy in arguing for a twenty-five-year total sentence does not diminish the significance of the State’s breach. Weigel apparently assumed that she would be most likely to receive a relatively shorter period of initial incarceration if she herself recommended a total sentence that “matched” the father’s. But pursuant to the plea agreement she had already entered, Weigel would necessarily make that request against the backdrop of the State’s recommending a twenty-year total sentence. The State indisputably denied Weigel the benefit of that agreement when it instead stated that a twenty-five-year total sentence was “appropriate.”
¶28 Furthermore, we agree with Weigel that it is “problematic” for the State to argue that the breach was not material and substantial because both parties anticipated that she would receive a higher sentence than the father. Weigel expected and had a right to an individualized and independent sentencing hearing, and we reject the State’s implication that her sentence was in any way predetermined. …. We also agree with Weigel that— given the circuit court’s apparent view that she was more culpable than the father—it was particularly important that the State adhere to the twenty-year cap that it had agreed to, so as to counteract the effect of the father’s sentence.
Note that trial counsel didn’t object to the state’s breach, so Weigel raised the issue via an ineffective assistance of counsel claim. Because the state materially and substantially breached the plea agreement and trial counsel neither objected nor sought Weigel’s permission to waive the objection, trial counsel was deficient; prejudice is presumed from the fact of the breach. (¶¶8-12, 30-33). And despite the state’s “somewhat vague” suggestion, which is unsupported by any meaningful argument, that plea withdrawal may be the appropriate remedy, the preferred remedy is specific performance–that is, a new sentencing hearing before a different judge. (¶¶34-36).