Background

• Frey pleaded no contest to Counts 2, 5, and 6; Counts 1, 3, and 4 were dismissed as part of a plea agreement.
• Sentencing followed a lengthy explanation by the circuit court, which referenced considerations including the dismissed charges in evaluating Frey's character and public protection needs.
• The circuit court stated it could consider dismissed charges (uncharged or unproven) when assessing Frey’s character and pattern of behavior.
• Frey challenged the sentence, arguing the court improperly relied on dismissed charges and that he had an opportunity to refute purported factual inaccuracies.
• The court of appeals affirmed, concluding the court could consider dismissed charges for character, and the Supreme Court granted review.
• This decision clarifies that Dismissed charges may be considered for character and pattern of behavior at sentencing, but not for restoring prosecutorial leverage or violating plea terms.

Issues

Key Cases Cited

• State v. Leitner, 2002 WI 77 (Wis. 2002) (permits consideration of uncharged/offenses to discern character)
• Bobbitt, 178 Wis. 2d 11 (Ct. App. 1993) (allows consideration of evidence surrounding a charged offense to gauge gravity)
• Elias, 93 Wis. 2d 277 (Wis. 1980) (sentencing court must consider defendant's character and behavior)
• McQuay, 154 Wis. 2d 116 (Wis. 1990) (supports consideration of uncharged offenses in sentencing)
• Straszkowski, 310 Wis. 2d 259 (Wis. 2008) (history and function of read-in procedure at sentencing)
• Wesley, 2009 WI App 118 (Wis. Ct. App. 2009) (discusses ambiguity of 'dismissed outright' in plea bargains)
• Austin, 49 Wis. 2d 727 (Wis. 1971) (read-in procedure described and its implications)
• Bangert, 131 Wis. 2d 246 (Wis. 1986) (plea requirements and defendant understanding)
• Brown, 293 Wis. 2d 594 (Wis. 2006) (reiterates plea admonitions and court duties in plea proceedings)
• Guzman, 166 Wis. 2d 577 (Wis. 1992) (emphasizes public policy of informed sentencing information)