Oct. 25, 2022 – The Wisconsin Court of Appeals has ruled that a prosecutor who said both parties agreed that a 25-year sentence was appropriate breached a plea deal that limited the defendant’s sentence to 20 years.

In State v. Weigel, 2022 WI App 48 (July 28, 2022), the Court of Appeals District IV also held the failure of the defendant’s lawyer to object to the prosecutor’s statement constituted ineffective assistance of counsel.

Plea Bargain for Abuse Charges

In 2019, the Lafayette County District Attorney charged Jamie Weigel with four counts for abusing her two young children. The district attorney also charged the father of the children.

Weigel agreed to a plea bargain. The district attorney agreed to recommend no more than a 20-year sentence, “including initial incarceration and extended supervision.”

In exchange, Weigel pled guilty to two of the four charges: physical abuse causing great bodily harm to one child, and chronic neglect causing bodily harm to the other child.

Before the judge sentenced Weigel, he sentenced the victims’ father to a 25-year sentence: a 20-year bifurcated sentence and five years of probation.

At the sentencing hearing, the judge said that Weigel’s conduct was worse than the father’s conduct. As a result, both Weigel’s lawyer and the prosecutor assumed that the judge would impose an equal or greater sentence on Weigel.

Multiple PSIs

The presentence investigation report (PSI) submitted by the Department of Corrections (DOC) recommend a 20-year sentence for Weigel: 14 years of initial confinement and six years of extended supervision.

Weigel submitted an alternative PSI, which recommended a 25-year sentence: 10-12 years of initial confinement plus 8-10 years of extended supervision, and five years of probation.

Weigel also submitted a sentencing memo based on the alternative PSI. The memo recommended a 25-year sentence: 10 years of initial confinement plus 10 years of extended supervision, and five years of probation.

‘Both Parties Agree’

At Weigel’s sentencing hearing, the prosecutor told the judge that the PSI submitted by DOC was “spot on.”

But the prosecutor also mentioned the sentence that the judge had meted out to the father and the alternative 25-year PSI submitted by Weigel, and told the judge that “Both parties agree that 25 years in total is appropriate.”

The judge imposed a sentence of 30 years on Weigel: 20 years of initial confinement plus 10 years of extended supervision. Weigel petitioned for post-conviction relief.

Weigel argued that the state had materially and substantially breached the plea agreement. She also argued that her lawyer had rendered ineffective assistance of counsel by failing to object to the prosecutor’s statement at the sentencing hearing.

The post-conviction court denied Weigel’s petition. Weigel appealed.

Prosecutor’s Statement Contradicted Plea Agreement

Writing for a three-judge panel, Judge Jennifer Nashold explained that the prosecutor’s comment that a 25-year sentence was appropriate breached the plea agreement because it directly contradicted the terms of the agreement.

“Such indirect undercutting of the plea agreement is … prohibited,” Nashold wrote.

The state argued that it had never promised not to recommend that Weigel’s sentence include probation. Instead, the state argued, it had promised only to cap its recommended bifurcated sentence at 20 years.

Weigel argued that the state was trying to use a technical definition of “sentence” in the context of a plea agreement, and that such an attempt was misguided.

The court of appeals agreed. The term “sentence,” Judge Nashold wrote, “should not be interpreted to refer only to the bifurcated sentence.”

“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,” Nashold wrote.

“Weigel testified that she believed that ‘everything would be capped at 20 years,’” Judge Nashold wrote. “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.’’

Judge Nashold also pointed out that construing the plea agreement in the manner the state was advocating would violate the spirit of the agreement.

“As Weigel correctly notes, probation may have a ‘major consequence,’ including the possibility of revocation and additional prison time, meaning that Weigel’s ‘exposure would be much more significant than the 20-year cap [that the] agreement contemplated,” Nashold wrote.

Breach was Material and Substantial

Nashold concluded that the state’s breach of the plea agreement was material and substantial because it deprived Weigel of a material and substantial benefit for which she had bargained.

The state argued that Weigel’s lawyer implicitly modified the terms of the plea agreement by filing a PSI and a sentencing memo that recommended a 25-year sentence. Consequently, the state argued, it was impossible for the state’s breach of the plea agreement to have deprived Weigel of a bargained-for benefit.

Judge Nashold disagreed.

“Weigel’s only obligation was to plead guilty to two specified charges,” Nashold wrote. “Weigel held up her end of the bargain and remained free to argue for any sentence she chose.”

Additionally, Judge Nashold reasoned that it was problematic for the state to argue that its breach was not substantial and material because both parties expected that the judge would impose a longer sentence on Weigel than he had imposed on 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,” Nashold wrote.

Remanded for Resentencing

Judge Nashold also concluded that Weigel’s lawyer had rendered her ineffective counsel by failing to challenge the remark made by the prosecutor during the sentencing hearing.

Under Wisconsin Court of Appeals precedent, Nashold pointed out, when a lawyer fails to object to a substantial and material breach of a plea agreement, the client is automatically prejudiced.

Judge Nashold noted that Weigel’s lawyer never sought her permission to waive an objection to the state’s breach of the plea agreement.

The court of appeals remanded Weigel’s case to a different judge for resentencing.