Wisconsin Supreme Court muddies the waters in plea bargaining

In State v. Frey, the defendant agreed to plead to certain charges and the state agreed to dismiss certain charges outright, rather than read them in, at sentencing.  This distinction between dismissing charges outright and dismissing and reading them in has always been a critical one.  In several cases courts have routinely recognized the distinction.  Even the official plea form that the defendant is required to fill out and sign warns him that the judge may consider read-in charges when imposing sentence.  Of course, in light of this warning, the only rational conclusion is that charges dismissed and not read in, i.e., dismissed outright or simply dismissed, cannot be considered by the judge when imposing sentence.  This makes sense for a couple of reasons.

First, if charges that are dismissed and not read in could be considered by the judge when imposing sentence, why doesn’t the mandatory plea form give the same warning?  In other words, why does it warn the defendant only about read in charges, if charges dismissed and not read in could also be considered by the judge?

And second, the prosecutor can initially file any nonsensical charges he wishes, and because of the so-called “transactionally-related” rule at preliminary hearings, it might even be easier to bring frivolous charges in felony cases than in misdemeanor cases.  So when such charges are later dismissed and not read in, it’s unthinkable that a judge should be able to consider those charges when imposing sentence on the charge to which the defendant is pleading. 

The conclusion that charges dismissed outright should not be considered at sentencing is inescapable.  But unfortunately, good reasoning doesn’t hold up in court.  Instead, Frey holds that trial judges, when imposing sentence, can treat charges dismissed outright the same as charges dismissed and read in.  As illogical as this is, it isn’t surprising.  Courts are allowed to consider all kinds of unproven, uncharged, and wholly unreliable allegations when imposing sentence.  Only in the rarest of cases, e.g., where a judge makes up facts that are completely and verifiably false, will appellate courts begrudgingly reverse a defendant’s sentence.  So, the decision that judges can consider charges dismissed outright at sentencing, no matter how illogical, is consistent with the courts’ love of punishment and their high comfort level with imposing said punishment based on anything and everything, including highly unreliable hearsay. 

But what the court in Frey did next is even more alarming, and makes me wonder whether a single justice has ever defended or prosecuted a single criminal case before donning the black robe.  The court goes on to state that, “The term ‘dismissed outright’ should be discontinued.  It leads to misunderstanding.  Instead, plea bargains should pin down whether a district attorney is agreeing not to prosecute a dismissed charge.” ¶ 88.

What?!  I had to read that about three times before I could believe it.  Of course the district attorney is agreeing not to prosecute a dismissed charge; the charge is, after all, being dismissed.  Dismissal of charges is also what induces a defendant to plead to other charges.  The court’s misplaced speculation about whether a dismissed charge can be prosecuted is just another example its inexplicable misapplication of contract law in the context of plea bargains.

But in any case, this decision sends strong messages to defense counsel.  First, the world of criminal law is growing even more complex, and often in illogical and unpredictable ways; the result is that the court has created yet another pitfall for the unsuspecting lawyer.  And second, we now have to state the obvious when reaching plea bargains.  Although prosecutors and trial judges who don’t read the Wisconsin Supreme Court cases will look at us like we’re nuts, the terms of our clients’ plea bargains likely need to include an additional clause that goes something like this:

. . . The state further agrees not to (a) re-file any charges or (b) file any additional charges based on any of the factual allegations in the complaint or discovery materials.

Even before Frey, I had always included similar language to protect against the state filing additional charges based on the factual scenario described in the complaint.  (This risk is not merely speculative, as prosecutors are often allowed to charge several crimes for a single act, and sometimes they overlook some of them when initially drafting the complaint.  However, several legal doctrines may also prevent subsequent charges based on the facts in the original complaint.)  But now, apparently, it is necessary to explicitly state that the prosecutor will not re-file charges that he is dismissing as part of the plea bargain, even though their dismissal is what induced the defendant, at least in part, to plead to other charges.  Contract law principles and the concept of consideration be damned, apparently.  

But what about other aspects of the language?  Would the above clause be enforceable?  Is it broad enough?  Is it too broad?  I once had a judge reject language like this: “The state agrees not to bring any additional charges alleged to have occurred before today, where Mr. X is the alleged victim.”  Why?  Because it was too broad and against public policy, as the state could be foregoing prosecution of past crimes of which it is currently unaware.  (I love it when judges look out for the poor, helpless, and overmatched government.)  Therefore, I changed the language to refer to “factual allegations in the pleadings or discovery materials” because the state necessarily knows about those. 

I guess we’ll never be sure what magic language we should use.  Regardless, Frey makes clear that the decades-old—or possibly the century-old?—practice of getting charges “dismissed outright” is no longer good enough.

[P.S., hat tip to Terry Rose for calling me to complain about this ridiculous holding, thus motivating me to write about it.]