State v. Comstock

Wisconsin, Plaintiff-Appellant, State

v. Defendant-Respondent- Robert J. Comstock, Petitioner. Supreme Court argument February No. 90-2080-CR. Oral 1992.—Decided June 1992. (Also 354.) reported in 485 N.W.2d defendant-respondent-petitioner For the there were Jury Ahrens, briefs David G. Ahrens Appleton & and oral argument by David G. Ahrens. plaintiff-appellant

For the argued by the cause was Moeller, Marguerite M. attorney assistant general, with whom Doyle, on the briefs was James E. attorney general. ABRAHAMSON,

SHIRLEY S. J. This is a published review of a appeals, decision of the court of Comstock, v. (Ct. State 163 Wis. 2d 471 N.W.2d 596 1991), App. reversing an order of Outagamie county court, Hoffmann, circuit John P. Circuit Judge. issue on review is whether the double clause of the United States Constitution was violated when a cir- (Judge cuit court Gage case), Michael in this upon con- sidering presentence investigation, sua sponte vacated previously accepted pleas no contest and reinstated felony charges original contained information.1 jeopardy forth,

For the reasons set we hold that upon acceptance attached this case the circuit court's plea of the defendant's of no contest to the amended We information. further hold that the circuit court (Judge Gage) Michael violated federal constitutional protections when, case, under the of circumstances this sponte pleas it sua the vacated defendant's rein- and original charges.2 stated the

Accordingly, we reverse the decision of the court of appeals. agree part We with that the of circuit court's Hoffmann's) (Judge dismissing P. John order four the felony charges, disagree part and we with that of the (John Hoffmann's) dismissing circuit court's P. order charges pleas. the two misdemeanor and the no contest We the remand cause to the court for circuit reinstate- alleging ment of the amended information two misde- charges pleas meanor and the of no contest and for sen- tencing proceedings.

Furthermore, as the both state and the defendant urge,3 superintending authority,4 we exercise our and pleaded contest,

1 The defendant case this no the cir and accepted plea. parties plea cuit court the treat a no contest case, guilty plea purposes and a the same for of issues this opinion. this so does noted, appeals 2 As court of this case involves an issue of law, requiring application principles constitutional undisputed facts. pro

3 The state contends that the defendant's constitutional against tection double was not violated. Nevertheless authority urges superintending state this court to exercise its following declare the rule for future cases: Circuit courts shall validly accepted guilty plea hereafter vacate a or no contest sponte sua direct each circuit court to refrain from plea no contest after the circuit court vacating guilty or validly accepted plea by assuring itself of the has basis for the voluntariness of the the factual was charges unless the circuit court finds that there party intentionally in procuring fraud or that a withheld from the circuit court material information accept which would have induced the circuit court not to plea.5 explains, holding As the state's brief of the avoids one of the unfortunate unintended effects appeals' in this case permitting decision sponte vacating sua plea, of the no contest circuit court's namely speak that an accused will be reluctant truth- fully presentence investigation in the for fear that a dis- may plea. closure cause the circuit court to vacate the We first set forth the background facts and felony case. 2 Next we discuss counts and which were Lastly felony reduced to misdemeanor counts. we discuss counts 3 and which were dismissed. except procuring

their own motion where there has been fraud party intentionally or where a has withheld from the circuit court material information which would have induced the accept plea. circuit court not to guarantees The defendant contends that his constitutional urges were violated and superintending this court to exercise its authority requests urges as the state but that the court's order be applicable to his case. supreme superintending "The court shall have and administra authority VII, 1(1), tive over all courts." Article sec. Wis. Const.

5 Neither the state nor the circuit court asserts that this case withholding involves fraud or the intentional of material information.

I. purposes The relevant facts of this case for of this undisputed. are Before review we describe the relevant facts, however, we that note the dissent recites as fact a description of the sexual detailed relations between the party's defendant and the victim. Neither of the briefs transcripts hearings nor the of the circuit court's nor the appeals' opinion gives of court relationship, an account asserted opinion not,

and this does because this nar- is rative relevant to the constitutional issue presented in bar. the case at

Furthermore, the dissent admits that it recites presentence investiga- numerous facts from drawn report. opinion disapprove Dissenting tion at 956. We practice. legislature provided this has presentence investigation report be to a disclosed limited people. number of circuit court to use the presentence investigation purposes. sentencing for After sentencing, presentence report be shall confidential provided except shall not be as made available report court order and statute. The sealed was when it report opened court; arrived this was this court was available to members of the court. The presentence report be will resealed when decision is presentence report part released and the will not be 972.15(4), public 1989-90, record. Section Stats. sentencing, "After reads: unless otherwise authorized (5) presentence court, sub. or the under ordered the investigation report be shall confidential and shall not be any person except upon specific made available to legislative authorization of the court.''6 The comments accompanying "presentence explain sec. 972.15 972.15, 1989-90,

6 Section in full: Stats. reads reports public should not be records. The information reports cases, in many such often unverified and would (1) investigation. 972.15 Presentence After a conviction the may presentence investigation. order a (2) presentence report investigation When a has been received judge report the shall disclose the contents of the to the defendant's attorney attorney prior sentencing. and to the district the When represented by attorney, defendant is not an the contents shall be disclosed to the defendant. (2m) person preparing presentence investigation The the report attempt shall to contact the victim to determine the eco- nomic, physical psychological effect of the crime on the victim. person preparing report may any appropriate person The the ask for preclude person information. This subsection does not who prepares report including any from information for the court concerning impact crime of a on the victim. (2s) years age, person If the defendant is under 21 preparing presentence report attempt shall to determine whether adjudged delinquent the defendant has been under ch. 48 or has had adjudication any years immediately a similar other state in the 3 preceding complaint relating present the date the criminal to the and, so, offense if was issued shall include that information in the report. (3) judge may identity any person The conceal the who provided presentence investigation report. information in the (4) sentencing, After unless otherwise authorized under sub. (5)or court, presentence investigation report ordered shall any person be except confidential and shall not be made available to upon specific authorization of the court. (5) department may presentence investigation use the report programming, parole for correctional consideration or care any person imprisonment, placed and treatment of sentenced to probation, parole department released on or committed to the under any person custody department ch. 51 or 971 or other in the or purposes. department may report for research make the availa- agencies persons purposes ble to other or to use for related to correc- programming, parole consideration, treatment, tional care and or Any report subject research. use of the under this subsection is to the following conditions: (a) report If a is used or made available to use for research purposes personal subjects, and the research involves contact with department, agency person conducting may or the research use a true, harm to informants or the irreparable if cause even Commentary Sentencing ABA The to the defendant."7 Standards, leg- Procedure on which the Alternatives and 972.15, position: modeled sec. reinforces islature by public interests are served disclosure. legitimate "No for sources close incentive both for the offender and The cooperate candidly presentence to the offender to they if knew that their investigation might be lessened part public could become of the record."8 statements undisputed September In Now the relevant facts. 1989, defendant, Comstock, charged Robert J. was complaint degree criminal with two counts of second assault, felony, having a Class C for sexual contact sexual person age intercourse with a over the of and sexual 940.225(2)(e), age years. of 16 Section and under charges 1983-84.9 The were based on incidents Stats. 6, 1984, January the victim was occurred on while which 6, 1984, January visiting the defendant's home. On birthday, shy months of her 16th victim was about two years was about 40 old. and the defendant only subject subject's subject consent of the or the with the written representative. authorized (b) department agency person or the or to whom any report shall not disclose the name or other made available identifying subject, except for characteristics disclosure employes department, agency appropriate or or staff members purposes program- person necessary correctional as for related to consideration, treatment, ming, parole research. care and or 63, 255, (reprinted in Wis. West's 7 Section ch. Laws 972.15, 85). Ann., sec. at Stat. Criminal Justice Association, Standards

8 American Bar for 18-5.3, (2nd 1980). ed. sec. at 18.362 Felony exceed penalty Class C is a fine not to

9 The for each $10,000.00 years, Sec imprisonment or both. or not to exceed 939.50(3)(c), Stats. 1983-84. tion October hearing was held on preliminary Judge Circuit Court Michael W. Outagamie before only witness. The victim the victim as the

Gage, with evening on the of the defendant's conduct testified about Immediately preliminary January following 1984. attorney informa- assistant district filed an hearing, the four counts of second tion the defendant with charging assault, which all based on the incidents degree sexual January 1984. occurred on 26, 1989, attorney the assistant district On October in a written the defendant and the circuit advised discovery demand for response to the defendant's any of criminal inspection that the state was unaware record for the defendant. 13, 1989,

On November the assistant district attor- ney permission the circuit court for to introduce moved prior at trial evidence of "other crimes or bad acts" sexual contact between the defen- alleged based on other from younger dant and the victim and the victim's sister January through April 1984. The circuit court was thus it of alerted to the state's assertion that had evidence involving other incidents of sexual misconduct younger the victim and a member of her defendant and family. plea agree state and the reached a

The defendant attorney forth ment which the assistant district set 11, 1989. hearing the record at a court on December prosecution agreed to amend counts to reduce (felonies) degree them from second sexual assault to (misdemeanors) degree fourth sexual assault and to dis four miss counts three and of the information.10 The 940.225(3m), charges 10 The amended fall under sec. Stats. 1983-84, provides as which follows: "Whoever has sexual contact person person guilty with of that of a a without consent A Class misdemeanor." plead agreed to no contest to the two counts

defendant prosecution degree addition, In assault. fourth sexual years probation agreed with a maxi- recommend three probation. days jail as a condition mum of 75 any bring prosecutor agreed on the record not to further any charges the defen- for other incidents between other victim or the victim's sister. dant and the may state not involve them- Circuit courts plea agreement process and not bound are selves by any prosecutor plea agreement a defen- between a charges permitting prosecutor to amend dant. Before accepting allege before a less serious offense and guilty or no contest to the amended defendant's satisfy charges, circuit court must itself that charges fit the crime and that the amendments amended may, public A in interest. circuit court as are the including questions, written, the ask sufficient court has plea agreement, prosecutor's entering the to reasons for accepting plea satisfy the the itself of wisdom longstanding charges. in this This is law of reduced state.11 punishable by fine of A a maximum

A Class misdemeanor 939.51(3)(a), $10,000.00 jail in nine months or both. Section or 1983-84. Stats. Section 971.08(1)(b), 1989-90, requires a circuit Stats.

11 inquiry in it that the defendant court to such as satisfies "[m]ake "person charged." judge crime The trial must fact committed the con ally 'that the conduct which the defendant admits determine charged in or information or the indictment stitutes the offense pleaded the defendant has offense included therein to which an " State, 661, guilty.' Ernst v. 674, N.W.2d 713 43 Wis. 2d grounds, part overruled in on other omitted), (1969) (citations Bangert, (1986). 246, State v. 389 N.W.2d 131 Wis. 2d plea agree- power accept reject a A has the or circuit court public reducing amending charges; or it should consider ment hearing, compliance At the December 11 with procedure 971.08, 1989-90, sec. Stats. and the this court accept pleas guilty has set forth for a circuit court to and plea agreements, the circuit court advised the defendant accept plea agreement that the court need not plea agreement; was not bound if the court charges pursuant plea agreement, reduced the to the it prosecutor's need not adhere to the recommended sen- impose tence; and that the circuit court could a sentence up to the maximum amount authorized statute for accepted plea misdemeanors, the two if even it agreement. advising legal

After the defendant of the conse- quences plea agreement, Judge Gage of a stated his understanding plea agreement on the record. Then judge engaged personally long the defendant in a colloquy,determining that the defendant understood the original charges, nature of the and amended understood making interest its agreement decision about complete should make a agreement. record of the The court personally must advise agreement the defendant that the inis no way binding on the court. State ex Gray, rel. White v. 57 Wis. 2d 17, 29-30, remand, (1973), 203 N.W.2d 285, 58 Wis. 2d after Roubik, (1973); State 206 N.W.2d 163 v. 137 Wis. 2d 305-07, (Ct. App. 1987). 404 N.W.2d 105 prosecutor "In cases in which the has moved to reduce the charge complaint proper, although mandatory, it is also for why charge the court to ascertain ascertaining was reduced. After assuring this information plea, itself of the voluntariness of the charge, the propriety factual any proposed basis for the and the of charge, reduction of the the court should then determine whether or State, accept plea." not Salters v. 708, 715, to the 52 Wis. 2d 191 (1971). N.W.2d 19 State, Rahhal v. See also 144, 150, 52 Wis. 2d 187 N.W.2d (1971); McQuay, State v. 800 154 Wis. 2d 452 N.W.2d (1990). 377 penalties, voluntarily and was entering the maximum upon plea plea. agreement Based and the record preliminary hearing, made at the circuit court (counts felony charges the amendment of two allowed 2) felony misdemeanor dismissed charges, and two (counts 4), charges and found a factual basis for the plea, accepted and the defendant's of no contest the two misdemeanor counts. accepted circuit pleas court thus the no contest felony only and charges

and reduced dismissed the after preliminary lengthy hearing a which victim set relating felony to the four original forth all facts counts 6,1984, January sexual contacts on for four after the allegations circuit court had been alerted to the state's had in other of engaged the defendant instances sexual misconduct with the victim and the victim's sister. accepting pleas,

After the no contest the circuit presentence it a ordering then stated that was investigation "as formal matter" and set the date for sentencing hearing. accepting guilty plea, After ordinarily guilty circuit court will find the accused of I judgment order that a conviction be entered. Wis- Traffic, consin Benchbooks —Criminal Judicial (1987).12 case, In Arraignment/Pleas, CR-4-8 this expressly the defendant guilty circuit court did find expressly judgment and did not order that a of convic- tion be entered. Nevertheless the circuit court guilty be deemed to have found the defendant case must of the two misdemeanors and to have ordered that a 972.13(1), 1989-90, provides "judg

12 Section Stats. that a upon guilty be of ment of conviction shall entered a verdict jury, finding guilty by jury or a the court in cases where a waived, guilty or a or no contest."

judgment of conviction be entered because the circuit presentence court ordered a investigation. Section 972.15(1), 1989-90, Stats. expressly requires a convic- tion before may the circuit court presentence order a investigation.13

The victim present was court at the December hearing at which the accepted circuit court the defen- pleas dant's of no contest. The victim addressed the 972.15(1), 1989-90, 13 Section Stats. states convic that"after may presentence tion the investigation." order a (Emphasis added.) 3640, 972.15(1)

Section 1991 Wis. Act amended sec. to presentence investigations limit felony. to convictions for a State,

In Rosado v. (1975), 70 Wis. 2d 234 N.W.2d 69 presentence circuit court investigation ordered a before it accepted guilty plea pursuant a agreement. to a Under the plea agreement, agreed plead guilty accused charge, to the prosecution agreed and the probation. to recommend presentence investigation revealed that the accused had other victim, sexual contacts influencing with the investigator recommend incarceration. The circuit court sentenced the prison. accused to The accused plea; moved to withdraw his motion supreme was denied. The court held that the circuit ordering presentence court's investigation a accepting before guilty plea was error. Because the circuit court had determined voluntarily that the intelligently accused had entered the ordering presentence before investigation and because the circuit court did guilty plea, not vacate the supreme accused's court held that the circuit court's violation requir- of the statute ing a ordering presentence conviction before investigation was harmless way prejudiced error which in no right the accused's to a sentencing procedure. fair We need not bar, re-examine Rosado. In the case at unlike in

Rosado, the circuit court guilty plea vacated the on the basis of presentence investigation. case, Rosado, This unlike thus involves the examining presentence effect of investigation to guilty plea. vacate a setting end to discuss hearing at the

circuit court time she could be sentencing for at a when the date courtroom.14 the sentencing hearing court held the

The circuit presentence investigation report, January 1990. with the defendant and the included an interview which victim,15 parties court the at was available to the that, of report because the time. The concluded that circuit court could not sentence agreement, the severity. appropriate It recommended with defendant plea agreement court if that reject the circuit the that available. option were hearing circuit court had sentencing

Prior to the the from the victim and her also received communications family objected communications to and friends. These plea agreement and advised the circuit the harm the victim psychological and economic significant long continuing of her sexual relation- suffered because The circuit court also received ship with the defendant. to the defendant. letters favorable 1989-90, 950.04(1), part chapter enti 14 Section of Stats. Crime," grants victim "Rights and Witnesses of of Victims tled agencies and right to informed local law enforcement the be attorney disposition the of case. district the final the victim of a about the need to advise the statute silent agreement. 1989-90, 950.04(2m), provides that a victim

Section Stats. per- right provided information the have the court with has to economic, physical, psychological the taining effect of to the upon felony con- of a and have the information crime the victim sidered the court. 1989-90, 972.15(2m), per provides that "the

15 Section Stats. attempt presentence investigation con preparing shall to son economic, physical psycho victim determine tact the upon logical effect the crime the victim." Two other communications were also before the cir- 17, 1990, January psycholo- court. On cuit the victim's gist probation sent a officer. letter This letter importance advised officer of the to the victim of holding the defendant for harm accountable he upon her and agreed inflicted with the recommendation plea agreement. that the circuit court reject On Jan- 17, 1990, County uary Outagamie Attorney District explained sent letter to circuit court. This letter he upon that had reviewed the file the victim's com- plaint. attorney The district concluded that the victim plea agreement; was dissatisfied with the the assis- attorney tant district believed he had valid reasons for entering agreement; into the and that the district attor- ney probably would have handled the differently matter had he been in charge of the case. The attorney district stated, however, that was seeking he to vacate the plea agreement. The attorney reported district also that he had the express advised victim that she could her objections plea agreement court, about the to the circuit including her concerns about her need to receive restitu- pay expenses tion to for counselling. her At the sentencing the hearing, circuit expressed its concern about how the case had been han- sponte dled and sua question raised the plea whether the agreement be could voided. The circuit court asked that counsel it of positions advise their the on circuit court's power to original charges] "reinstate in the interest [the of justice or otherwise." The circuit court adjourned the sentencing hearing taking testimony. without 23, 1990, January

On the defendant for "spe moved performance" plea cific agreement, of the alleging that prosecutor both the and circuit court had breached agreement. January hearing 24, 1990, the circuit court At a despite finding law, concluded, as a matter despite accepting the no basis for the and factual charges, pleas to reduced it could vacate the contest public agreement in the interest. pros explored and cons of

The circuit court then plea agreement. accepting the perceived following factors as

The circuit court acceptance plea agreement: supporting its initial age hearing, First, defendant, 45 at the time of the according Second, to the victim's had no criminal record. preliminary hearing, testimony six the victim was at felony birthday four of her 16th when the weeks short allegedly Regardless of the victim's occurred. offenses age, (consent prove consent if the state could lack of dispute), being the contact would be a misde- an issue plea agreement. also sec. under See meanor 944.15(2), (Class A Misdemeanor for sex- 16-18). Third, sex- Stats. 1983-84 with a minor who is ual intercourse experience, with emotional and is a traumatic ual assault psychological signifi- There was effects on the victim. testifying reliving the for the victim's cant concern place experience.16Fourth, six the offense took almost charges brought, years memories were before the testimony, had the victim's the state fade. Other than place any proof or the that the offenses took not revealed Finally, implicit parties' in the of the incidents. date accept plea agreement was decision to circuit court's plea agreement knowledge would save the that the uncertainty expense trial, while still accom- of a strong public policy recognize courts continue to "While system testimony, justice compelling has favor of the criminal public policy years begun cognizance to take of another recent assisting gaining acceptance: victims and witnesses which has been Gilbert, 501, system." State v. justice 2d 109 Wis. in the criminal (1982). 326 N.W.2d plishing the goals state's of convicting the defendant of a serious crime and supervising the defendant through probation.

Relying heavily upon expressed wishes of the victim supporters and her and the materials submitted acceptance after the pleas and the conviction and sentencing, before the the circuit court pleas vacated the First, for the following reasons: presentence report punishments recommended not available under Second, reduced charges. the victim was willing testify participate at trial and fully Third, in the case. presentence report supplementary material revealed the extent of the emotional and psychological damage the defendant's conduct caused the victim. sua sponte, vacated the defen- court,

The circuit dant's pleas no contest to the two misdemeanor charges and reinstated the felony four counts contained in the original information. Judge Gage then recused himself from participation further in the matter. The case was assigned Waupaca County Circuit Court Judge John P. Hoffmann.17 6, 1990,

On March the defendant filed a motion to dismiss the reinstated information on double jeopardy grounds. Judge granted motion, Hoffmann that dis- missing felony the four counts prejudice. with The cir- Hoffmann) cuit (Judge ordered, further without explanation, that the pleas no contest to the two misde- meanor counts Judge which Gage had vacated on Janu- ary 1990, remain vacated. The appealed state from Judge Hoffmann's order to the appeals. court of

17According record, Judge to the Chief Harold Froelich asked assigned the case be Judge to a Circuit from outside Outagamie County because the victim's county father was a official. appeals Judge reversed Hoffmann's court of the reinstated information. With dismissing

order from charges amended felonies respect to the two 2), (counts appeals 1 and the court of misdemeanors upon the circuit jeopardy attached concluded that pleas, no the acceptance of the contest but court's original of pleas and reinstatement the vacation of the Relying on jeopardy. constitute a second charges did not State, v. 708, 191 understanding of Salters Wis. 2d its (1971), appeals the of concluded that the court N.W.2d of judgment until a valid con jeopardy same continued 972.15, 1989-90, sec. Stats. authorizes Although viction. investigation only presentence court to order a a circuit conviction, appeals apparently of con the court after that, report investigation presentence cluded because a information, court may furnish relevant the circuit presentence report the should have reviewed this case accepting final about the making before decision agreement.18 respect felony charges two dismissed

With 4), (counts appeals the court of concluded that 3 and had never attached. upon parties which the and the 18 Salters and other cases In distinguishable this appeals of relied are from case. court case, cases, acceptance of the circuit court's unlike the cited charges part agreement; the circuit pleas to of a reduced was pleas assuring accepted after itself the no contest pleas, charges, basis for the voluntariness the factual propriety proposed reduction of the of the dismissal and charges; circuit court convicted the defendant and ordered cooperated; investigation presentence in which the defendant acceptance of party court's neither claimed that the circuit erroneous; changed mind pleas never its was circuit court validity pleas. about the

I I. examining validity reinstating Before of the four felony charges, briefly jeopardy we review double law. jeopardy of

The double clause the Fifth Amendment provides any person subject "[N]or as follows: shall be put jeopardy for the to be in same offence twice of life or guarantee limb . . This federal constitutional against through enforceable states the Fourteenth Maryland, 784, v. Amendment. Benton 395 U.S. 794 (1969).19 interpreting jeopardy

The decisions double are com- plex apply, turning and difficult to understand and often Supreme on the factual context. The United States jeop- its Court has criticized own decisions on double ardy, commenting "they hardly that can be character- consistency clarity." ized as models of Burks v. (1978).20 States, 1, United 9 437 U.S.

According analysis, jeop- to the Court's the double (1) ardy protections: against clause offers three a second prosecution acquittal, (2) for the same offense after against prosecution a second for the same offense after (3) against multiple punishments conviction, and for I, 8(1), provides: 19 Article sec. the Wisconsin constitution " person may put for the same offense be twice [N]o punishment. . .." 20 "Despite antiquity, however, guarantee [against its roots in jeopardy] and, double seems both one of the least understood years, frequently litigated provisions one of most recent Rights. confusion, Bill of This has done Court little alleviate the opinions, including by me, replete and our ones authored are with culpa's mea assumptions emphasis." occasioned shifts States, 684, (1980) J., Whalen v. United (Rehnquist, 445 U.S. 699 (citations dissenting) omitted). protections prin- are these Underlying offense. same retrial after finality. bar to of fairness ciples state will not acquittal ensures conviction or individual, attempts to convict an repeated make thereby exposing the accused to continued embarrass- ment, expense, increasing the risk of anxiety, and while impermissibly enhanced or an an erroneous conviction punish- cumulative protection against sentence. sentencing that a court's designed ments is ensure limits confined to the established discretion is Johnson, 493, Ohio v. 467 U.S. 498-499 legislature. Washington, Arizona v. (1984); U.S. 503-05 Co., Supply States v. Martin Linen United (1978); Wilson, v. United States (1977); U.S. 568-70 (1975). 332, 342-44 U.S. jeopardy trig- is not prohibition against double proceedings. Jeop- until attaches" the

gered "jeopardy of of exposure the risk a determination ardy means Israel, Criminal 3 W. J. or LaFave and guilt innocence. 972.07, 24.1(c) (1984). Thus sec. Procedure at 63 sec. (1) 1989-90, provides jeopardy attaches when that Stats. jury, in a without a trial to the court a witness is sworn (2) jury has been com- the selection of the and when sworn in trial. jury jury and a pleted

I I I. felony of the two counts We now turn to the issue 2) misdemeanor (counts 1 that amended to two and were state, pleaded guilty. The to which the defendant counts defendant, appeals agree that and the court of a circuit jeopardy attaches when has held that court See State v. accepts plea court an accused's of guilty.21 Waldman, (1973); 57 Wis. 2d 203 N.W.2d 691 State, v. Salters 708, 714, 52 Wis. 2d 191 N.W.2d 19 State, (1971); Hawkins v. 264, 267, 2d 30 Wis. State, Belter v. (1966); 57, 62, N.W.2d and 178 Wis. (1922). In 189 N.W. this case the circuit court accepted no defendant's contest. We therefore conclude, cases, prior on the basis of our jeopardy attached. acceptance of a or no is guilty contest beyond

proceeding preliminary steps listed sec. exposes 972.07 and an risk of accused a determi- guilt. previously, nation of As we after accepting stated guilty plea, will ordinarily circuit court find the guilty accused a judgment order that of conviction be entered.

In this case expressly the circuit court did not find guilty the defendant not expressly did order that a Nevertheless, judgment of conviction be entered. as we explained previously, the circuit court must be deemed order, to have this finding made because the circuit presentence investigation. court ordered a Section 972.15(1), 1989-90, requires expressly Stats. a convic- may tion before the circuit presentence order a investigation.

Our upon conclusion that attached cir acceptance court's guilty pleas supported by cuit State, Belter v. 57, 189 (1922). Belter 178 Wis. N.W. 270 appears to be the original adopting Wisconsin case the qf rule that jeopardy upon acceptance guilty attaches a plea jeopardy prevents and that double a court from

21 proper procedure acceptance plea by The for the of a the State, v. 708, 191 Salters court is in set forth 52 2dWis. N.W.2d (1971). party Neither the contends that circuit court erred in procedure accepting plea. the it used in the defendant's no contest if it the guilty plea subjects on its own motion vacating a greater aof offense. charges accused to In Belter in lower pleaded guilty accused the the pos- to the of municipal court misdemeanor branch of jail mink was sent to to and skins and sessing muskrat sentencing, the At the time set for sentencing. await case to municipal of court certified the lower branch the infor- municipal where an of the court upper the branch with the same charging mation was filed the accused prior crime, of a convic- repeat as a offender because but The was sentenced forgery. tion for accused possession for the months when the maximum sentence six of skins alone was months. proceeding in lower argued

The accused that the in placed jeopardy proceeding branch him and that in his upper branch therefore violated constitutional protection against supreme double The jeopardy. plea in acceptance guilty of the accused's of held that to the subjected the accused forthwith lower branch municipal jurisdic- and court's statutory penalty that the try for the offense had become a tion to the accused municipal court could not on motion finality. or on the court's own motion erase the first prosecutor proceeding. supreme court concluded accepted guilty as a verdict of guilty of was the same placed thus been once jury. Having be sub- proceeding, the accused would the lower branch penalty upper in the branch ject greater new to a of the accused's constitutional proceeding violation holding its as rights. The court summarized supreme follows: court, guilty, accepted as it was

His was subjected any trial then there waiver statutory penalty. The to the defendant forthwith jurisdiction try him for an exercise of such finality, had then it offense become a and could not be, by prosecutor by either motion or the court motion, wiped jurisdic- on its own out and the other tion . . to bind over be substituted .. The state in charged effect elected to have a trial to the as offense try and the assumed and determine for such offense, binding, such choice election and are having fully magistrate, juris- exercised the one diction, Belter, forego must the other. 178 Wis. at 62 added).22 (emphasis Belter, with

Consistent several federal circuit courts appeal recently of have concluded that jeopardy attaches United v. upon acceptance States guilty plea. Britt, (8th 353, 1991); F.2d United 917 356 n.3 Cir. Baggett, States v. cert. (11th Cir.), 901 F.2d 1548 denied, Kim, United v. (1990); 111 S. Ct. 168 States 884 189, 191 (5th United v. 1989); F.2d States Cambindo Cir. Valencia, (2nd 1979), cert. denied 609 F.2d 637 Cir. States, sub nom. Prado v. United (1980). 446 U.S. 940 The state asks this court our overturn earlier United States v. San- adopt decisions holding Soto, tiago (1st 1987), 825 F.2d 616 Cir. and several cases,23 other federal which hold that does not accepts attach when the guilty plea trial court unless imposes the trial court sentence and enters judgment. appear federal jeop- courts to reason that the double State, 264, 267, 140 22 Seealso Hawkins v. 30 Wis. 2d N.W.2d (1966) (jeopardy guilty plea "accepted" 226 attaches when the is court); State, 708, 714, Salters v. 52 2dWis. 191 N.W.2d (1971) (jeopardy "entered"); guilty plea 901 attaches when the Waldman, 234, 237, (1973) v. State 57 Wis. 2d 203 N.W.2d 901 (harmonizing by stating Hawkins guilty and Salters court). accepted is not until entered

23 See,e.g., Zimmerman, (3rd Cir.), Gilmore v. 793 F.2d 564 denied, (1986); Combs, cert. 479 U.S. 962 United v. States (10th 1980), denied, (1981). F.2d 1295 Cir. cert. U.S. the accused's is not violated because protection ardy double finality repose protected the and interests of in the strongly implicated less clause are jeopardy guilty. plea than in a verdict of guilty of a acceptance felony respect with to counts one argues that The state counts, two, amended to misdemeanor which were and support jeopardy the view that federal cases state's these of acceptance court's the upon the circuit did not attach pleas. no defendant's contest Soto, initially Santiago complaint

In the criminal "For unknown accused with two felonies. charged the the reasons," charged information 825 F.2d at the misdemeanor. At the combined with one accused sentencing hearing on misdemeanor the district the and possible lack court, although expressing concern with the intent, plea. accepted guilty Later in the the of criminal to guilt, "appearing denied his hearing same the accused The F.2d at 617. plea," his mind on the change guilty on its own motion then vacated district court A charge. plea to misdemeanor and dismissed felony of for the the accused a grand jury later indicated activity. The that the district same accused asserted charge guilty plea of to the lesser acceptance court's charge acquittal greater on and implied connotes an charge for the more serious would prosecution that prosecution unconstitutionally subject him a second for offense. the same Santiago Soto court, following

The earlier federal always cases, double rejected the view that acceptance guilty plea. a The federal upon of attaches acceptance guilty a that of appeals court of concluded offense, rejection a included followed plea to a lesser of hearing imposition plea in the same without of that carry the same entry judgment, or did sentence jury a verdict finality tranquility and as expectation entry after as of judgment trial or fol- sentence lowing guilty plea.24 a Zimmerman, also relies Gilmore v. state (3rd 1986), in

F.2d 564 Cir. which the accused was charged with several offenses including homicide. The Santiago Ohio,

24 The Soto court cited Brown v. 432 U.S. 161 (1977), misdemeanor, pleaded guilty in which the accused a joyriding, jailed. was sentenced and After he served his sen tence, theft, prosecution state initiated second for auto felony. joyriding Court held was a lesser included offense theft, jeopardy prohibited prosecu of auto and double a second prosecution tion. A second for the same offense offended finality repose accused's interests in after his first conviction. Johnson, compared The Brown case be should with Ohio v. (1984). 467 U.S. 493 was ranging Johnson indicted for offenses grand pleaded guilty from to murder. He theft to lesser included involuntary manslaughter grand of offenses and theft and not guilty to the more objections, serious offenses. Over the state's the accepted guilty pleas trial court the and dismissed the more seri- jeopardy ous grounds. offenses on double The United States Supreme acceptance Court concluded the guilty pleas that of the some, all, charges to in but not the the same indictment had none implications of implied acquittal the of an and did not constitute felony charges a pending verdict. Since the were filed and when pleaded perceived the guilty, accused the Court no of concerns prosecutorial Furthermore, abuse. the accused's in final- interest ity less, Court, implicated was jury wrote the in than a verdict case, pending charges because the accused knew of the and the objections Court, charges. state's to dismissal the the Thus acceptance (but all) treating guilty plea the of a to some not pending charges differently from jury a on conviction based verdict, jeopardy held that not in did attach that case when the accepted guilty plea trial court charges the to the lesser while the charges pending. more serious remained The Court concluded prosecutorial overreaching there was no and the state should right be denied full opportunity its to a fair and to convict those who have violated the law. accepted guilty plea man- the accused's

district court slaughter. sentencing "an the court found At district support inadequate the defendant's factual basis plea," equivocal guilty 793 F.2d at and the district objections, court, reinstated the not over the accused's charges. guilty plea original Relying on Brown to the appeals Johnson, con- note federal court of see the prosecution single with a that the case involved cluded guilty charge pend- plea accepted while a more serious ing; an trials the case does not raise issue successive many over such as characterizes controversies double jeopardy. Santiago in Soto Gilmore are distin-

The facts guishable cases, in bar. In from those the case at both accepted guilty plea the but then district court the grounds relating it to the factual basis for the vacated on Santiago accepted plea. In Soto circuit court when the rejected proceeding guilty plea in on it same the may guilty, grounds it not be is hard to that accused placed any conclude that the accused was although meaningful Gilmore, In the vacation of sense. subsequent proceeding, in a reason for was Santiago Soto. was the same as vacation bar, concluded In the at the circuit court never case acceptance no contest was defective that ground or no existed that factual basis plea voluntarily or intelli- the defendant had entered party gently. that the circuit court's Neither claims acceptance plea reasons erroneous. For these of the was upon which rationale of the cases we do not think the the the facts of this case.25 state relies fits

25 which, bar, at no chal In an Arizona case in like the case plea, grounds accepting the Arizona lenge to the for the was made sponte could not sua Supreme Court concluded that a trial court validly accepted. In guilty plea had a which the court vacate State, Salters v. cases federal resemble 52 Wis. 708, (1971), upon 2d N.W.2d which the state concept jeopardy." relies for the of "continued The state argues even if jeopardy this court finds that felony attaches counts one and two when the circuit accepted court the defendant's pleas to these counts as amended, jeopardy the same that attached when the pleas accepted were pleas continued when the were vacated and the information reinstated. Because Salters different, we do not believe Salters gov- factually is so erns this case.

Charged murder, degree with first pleaded Salters guilty to a charge. lesser After ascertaining that it was voluntary, the circuit accepted plea. the Thereafter police officer testified about the During facts. the testi- mony expressed the circuit court concerns pro- about the priety charge reduction. The proceedings were adjourned. At a proceeding state, later "at the request court," of the circuit 52 Wis. 2d at moved to reinstate original complaint. The circuit court granted the motion and set aside the A guilty plea. dif- judge presided ferent over the reinstated charges. At proceedings these again the state moved for reduction of the charge, the accused again pleaded guilty to the Superior Court, Williams v. (1981), 130 Ariz. 635 P.2d 497 plea agreement, the accused accepted entered into a the court guilty plea, and the sentencing. case was set for At the time set for sentencing judge rejected agreement second and rein- original charges. stated the accept- accused asserted that the plea placed ance of the him in and that could not be vacated without his Supreme consent. The Arizona Court accepted held that once plea agreement the trial court finding guilty, jeopardy entered the attached and the trial court reject plea agreement could not later subjecting without jeopardy. accused to double charge, accepted

reduced and the circuit court Subsequently and sentenced the accused. the accused guilty plea moved to vacate the and the conviction of the jeopardy grounds. charge on double reduced supreme jeopardy court denied the double chal- declaring lenge, continuing jeopardy that there is from entry plea26 of the until an accused has had a valid charged.27 trial free from reversible error for the offense explained "in The court ity that order for there to be valid- jeopardy assertion of double there have to the would judgment acquittal to be a of or conviction or a dismissal charges prosecution begun and then a second Salters, the basis of the same offense." 52 Wis. 2d at 715. concluded the circuit court The court that when ordered original complaint jeop- reinstated it did not end one ardy begin According another. to the Salters deci- jeopardy sion, continues until a circuit court enters a acquittal.28 judgment of conviction or significantly, to the court's con- More understand tinuing jurisdiction theory, the Salters court went on to Waldman,

26 In State v. court stated 57 Wis. 2d at accepted by was not entered until the trial court. that a Schmear, State 126, 135, 135 v. 27 The court cited 28 Wis. 2d (1965), theory. continuity jeopardy N.W.2d 842 for the of case, Schmear continuity jeopardy like the other Wisconsin examined, cases we involves a mistrial or reversal of a conviction because of error and a retrial. Schmear recognizes that an alterna theory declaring protection against for the accused's tive that namely theory, jeopardy the waiver double violated is grounds cannot ask for and receive a new trial on accused inconsistently being placed error and then claim the first trial. Schmear, the Salters alternatively

28 Asin concluded knowingly, pleaded guilty time he had that when Salters a second expressly any objection jeop intelligently, on double waived ardy grounds. contrary supreme had, circuit court to the

state that the accepted plea receiving directive, the evi- court's before accuracy. supporting dence its voluntariness and factual Salters, above, Thus the like federal cases described accepting guilty plea fully a court's a without involved hearing making the evidence and a determination of vol- accuracy. acceptance untariness and factual Thus the of plea the was erroneous. significantly In

The case at bar differs from Salters. the plea the circuit case at bar court satisfied itself that the voluntary factually

was accurate. The circuit changed validity court never its mind about the plea. in

The circuit court Salters refused to convict or acquit guilty plea granted the his accused on but instead (in own) the state's effect the court's motion to reinstate greater charge. the in circuit court the case at bar is entry judgment deemed to have ordered the of a of con- presentence investigation. viction because it ordered a explained previously, cannot, As we the circuit court presentence report statutes, under the order a until after conviction. accepting plea agreement

Before a circuit court may, questions, written, as this court has ask sufficient prosecutor's including entering plea reasons for the agreement, satisfy accepting itself of the wisdom of charges. jury, court, to reduced The circuit like a

29 The court also stated that prosecutor charge "in cases which the has moved to reduce the complaint proper, although mandatory, it is also for the court why charge ascertaining to ascertain was reduced. After assuring plea, information and itself of the voluntariness of the charge, propriety any proposed factual basis for the and the reduc- charge, tion the court should then determine whether or not to accept plea." 52 Wis. 2d at 715. presentence not consult a report need to have sufficient knowledge to decide whether guilty. to find the accused prohibit Indeed statutes the circuit court from order- ing presentence investigation until there has been a conviction. forth,

For the reasons set we conclude that because jeopardy attaches when a accepts circuit court an accused's of guilty, jeopardy attached this case when the circuit accepted the defendant's no con- pleas test counts 1 agree amended and 2. We with that part of the circuit court's order dismissing prejudice with felony 1 2. counts and not, however,

We do agree part with that circuit court's order vacating pleas the no contest to the two misdemeanor counts dismissing and those counts. The "specific defendant moved for performance" of the plea agreement, and the defendant has never withdrawn pleas. asserted, his so, The defendant has correctly Judge Gage that erred vacating pleas the no contest to the misdemeanor charges. Judge Gage's vacating order pleas effect, the misdemeanor was parties of no and the should be returned to the situation before existing pleas. vacation of the We remand matter to the cir- cuit court to reinstate charges the misdemeanor and the pleas no contest sentencing and for proceedings.30 Court, Campas Superior v. 30 The state calls our attention to (Ct. 1989), App. supporting 159 Ariz. 767 P.2d 230 the result reinstating charges we reach the misdemeanor and the no pleas. Campas guilty plea contest entered his to one count of an judge plea. appellate A indictment. second vacated the The court judge held that the second was bound the terms of the agreement. remedy sentencing pursuant was a remand for to

IV. prosecutor turn to We counts 3 and which the moved to which dismiss and the circuit court dismissed accepting when defendant's no contest 2. argues amended counts The state that double jeopardy does not bar the reinstatement of these counts because never attached. The state asserts pleaded guilty defendant has never to these counts acquitted and has never punished been or convicted of or for the commission felony charges. of these two Montgomery State,

Relying 183, 195, v. 128 Wis. (1906), Johnson, 107 N.W. 14 Ohio v. 467 U.S. (1984), States, v. United 420 U.S. 377 Serfass (1975), the appeals' state asserts that the court of rein stating felony these two counts accords with state and supreme precedent. federal We conclude that distinguishable cases the state cites are from this case. Montgomery State, 183, 107 In v. 128 Wis. N.W. 14 (1906), granted prosecutor's the court motion to dis miss charge to which the pleaded accused had guilty. charge was dismissed prejudice; without prosecutor bring announced his intention to further bar, charges. Unlike the Montgomery case at did not prejudice involve a dismissal with or a dismissal of some charges upon guilty plea specified charges other pursuant plea agreement.31 to a Johnson,

In v. (1984), Ohio 467 U.S. 493 after accepting guilty pleas the accused's charges, some the Hecht, original plea agreement. See also United States v. (3rd 1981). F.2d 657-58 Cir. Waldman, State v. The state could also have cited 57 Wis. Montgomery (1973), 2d 203 N.W.2d 691 which like involved guilty plea granting prosecutor's a not request and the court's charge prejudice. dismiss the without objections, court, trial over the state's dismissed the charges more serious to which the accused had not pleaded. Supreme Court held that did not charges attach to the dismissed and that the state could try charges. contrast, the accused on the dismissed In prosecutor agreed in the case at bar to dismiss the charges plead two to which the defendant did not with promise reprosecute. not to In Johnson because the pending charges pleaded accused knew of the when he guilty prosecutorial the Court was not concerned about finality abuse and did not think the accused's interest seriously implicated. was In this case the defendant pleaded guilty felony charges with the that assurance plea agreement would be dismissed the merits and his accepted. was In this case the court is concerned about potential prosecutorial abuse and the defendant's inter- finality implicated. est (1975), States, In ass v. United 420 U.S. 377 Serf holding indictment,

federal district court dismissed an the accused was entitled to have his local draft government board reexamine his draft status. When the appealed appeals, to the court of the accused contended jurisdiction govern that the court lacked because the prohibited appealing by jeop ment was from the double ardy Supreme clause of the Fifth Amendment. The jury Court concluded that because no had been empaneled, jeopardy had not attached when the court pre-trial Accordingly ruled on this dismissal motion. appealable Court concluded that the dismissal was an order. case, cites,

In unlike in the cases the state felony charges prejudice upon two were dismissed with plea agreement the state's motion. This case involves a pleaded guilty in which the defendant to two reduced charges felony charges. in return for the dismissal of two charges upon prose- court dismissed the

The circuit express agreement prosecutor that the would not cutor's any bring charges for other incidents between defen- dant and the victim or the victim's sister. The state has plea agreement be vacated and the asked that complied plea agreement has with the and the defendant by presentence order in the cooperating circuit court's investigation. allowing

We conclude that the state to reinstate the felony prejudice dismissed with this case charges two allowing repeated would amount the state to make attempts to convict an individual for the same offense. felony Allowing charges the state to reinstate the two plea agreement contravention of a the defen- with which complied principles finality dant has violates the underlying fairness the double clause. prosecutor Our court has stated that when the sovereign behalf of the state has contracted with an charges accused to dismiss and the court has dismissed charges, "subsequent reprosecution charge of a dis a result of a bargain missed as is barred elemen State, 769, 775, tary process." due Nelson v. 53 Wis. 2d (1972). State, 193 N.W.2d 704 See also Austin v. 49 Wis. 727, 734-36, (1971); State, 2d 183 Mallon v. N.W.2d 56 185, 189-90, (1970); 2d State v. Wis. N.W.2d 364 Bond, 179, 187-88, (Ct. 139 Wis. 2d 407 N.W.2d 277 1987); York, App. Santobello v. New 404 U.S. (1971). principles We thus have concluded that of fair ness, finality repose prohibit prosecutor from reprosecuting charges that a court dismissed as a result If plea agreement. prosecutor of a a valid bound plea agreement, process protects and due the defendant prosecutor's withdrawing agreement, from the from the jeopardy of double do not believe that considerations we sponte to sua court process permit and due a circuit plea prosecutor agreement. relieve the from a valid ended, the proceeding the December When pursuant to every had reason to believe that defendant felony charges four were termi- plea agreement the the convictions of the misdemeanors were nated and that his in cooperated this belief the defendant Acting final. presentence investigation. the its own order

The circuit then vacated pleas felony the counts and accepting dismissing the of the felony charges on the basis reinstated the any showing that the presentence investigation without plea grounds was erroneous on acceptance guilty of the these or lack of a factual basis. Under of involuntariness sponte sua circumstances, order vacat- the circuit court's implicates public's the and the ing pleas significantly in in fairness finality, repose, interests defendant's attempt withdraw way prosecutor's as a to same validly accepted plea agreement. from a supporting no case We conclude that the state cites felony charges dismissed with position its the two may of this case be prejudice under the circumstances case, In fairness —whether reinstated. this fundamental process or due derived from the double reprosecuting from prohibits prosecutor clause — dismissed counts (counts original 3 and information). may not be a that "while there charges dissent case, if certainly appears it as

provable fraud here sleight maneuvering some of hand there was attorney and the defendant." Dissent- assistant district description opinion provides at The dissent no ing 966. alle- any maneuvering. Unsupported or evidence of such appropriate simply disagree- because of gations are not attorney's offering ment of a district with wisdom accepting the charges reduce and the circuit court's charges defendant's of no contest reduced convicting charges. the defendant of these proper operation justice system of the criminal attorney's its depends exercising on the district office prosecutorial a sound manner and on the discretion exercising powers public circuit courts' their inter- party agreement, est. The circuit court is not a to a upon prosecu- agree charges need not to reduce the motion, accept prosecutor's tor's and need not or sentencing defense's recommendations. public persons interest is to convict of the they guilty impose penalties

crimes of which are and to Increasingly that fit the crime and criminal. there has public, legislative, judicial been concern for the victims, well-being especially needs and of child victims See, e.g., State v. 1989-90; and witnesses. ch. Stats. Gilbert, 501, 513, 515, 109 Wis. 2d N.W.2d (1982). case, In prosecutor this both the circuit opportunity court sufficient to had obtain information plea agreement fully relevant to the and to make a informed decision based on the legally information avail- given oppor- able to them. Both could have the victim an tunity express to her views about agreement accepted plea. before the circuit court the defendant's case, public policy The relevant as discussed earlier, policy provided by is the legislature sec. providing 972.15 a circuit should not presentence order —and therefore should not consider —a investigation legislature before conviction. The under- presentence investigations may stood that rest on hear- no relation to the say bearing and contain information charged. defendant Presentence crime with which the are, according legislature, to the relevant investigations guilt the determination of or inno- sentencing, to to purpose prevent possible of sec. 972.15 is to cence. One premature the defendant from submission prejudice to court. presentence investigation circuit speak truthfully a defendant Another is to allow presentence investigation without fear that a disclosure sponte the circuit court sua may be used to reexamine conviction, and charge guilty plea, and vacate a plea agreement. legislatively public policy declared of the state

leads to the conclusion that a circuit court cannot vacate its dismissal on the merits of counts 3 and from the information on the basis of information derived conducted, required by as stat- presentence investigation ute, after conviction.32 forth, part with that agree

For the reasons set we felony with dismissing prejudice the circuit court's order 4. counts 3 and

V. urge, defendant we exer- As both the state and the authority, and direct each circuit superintending cise our sponte sua a or no vacating guilty court to refrain from validly accepted the the circuit court plea contest after plea of the voluntariness of the plea by assuring itself unless the circuit charges and the factual basis for the plea in or procuring there was fraud court finds that intentionally withheld from the circuit party that a supra 32 See note 13. cir- which would have induced the

material information accept plea. not to cuit court preserves right holding This the circuit court's duty apprised relevant information before to be of all plea accepting guilty or no contest and before sentenc- a ing the circuit court to make informed deci- and allows McQuay, protecting public State v. interest. sions (Ct. 1989), App. rev'd 148 Wis. 2d 436 N.W.2d 905 grounds, other 154 Wis. 2d 452 N.W.2d 377 (1990). comports principles holding of funda- This with finality, repose. holding fairness, also mental This explains, avoids, the state's brief one of the unfortu- as appeals' of the court of decision nate unintended effects sponte permitting the circuit court's sua this case vacating plea, namely of the no contest that an accused speak truthfully presentence will be reluctant investigation may for fear that a disclosure cause the plea agreement. circuit court to vacate the or appeals' We therefore reverse the court decision and remand the cause to the circuit court for reinstate- alleging ment of the amended information two misde- charges pleas meanor and the of no contest and for sen- tencing proceedings.

By appeals the Court.—The decision of the court of is is reversed and the cause remanded to the circuit court. (concurring). per-

STEINMETZ, J. is This case a example why judges very fect trial should be selective accepting plea bargains. accepting Before bar- gain, judge important must take into account several factors. judge right

First, a has the to know the nature and severity charges being of the dismissed or reduced. authority judge being exercised, and, Exclusive judge right origi- therefore, the has the to know what the charges significance any nal are and the dismissals. judge

A must also be as to informed the attitude of particu- crimes, the victim or victims of the defendant’s larly when crimes of violence or sexual abuse are involved. It would be best to have the victim in court judge when this information is made known to the present, any if because the victim is not incorrect state- acquiesces plea arrange- ment that the victim to in the may resulting ment create a fraud on the court in the judge voiding proceedings. later the entire judge

Furthermore, should be aware of the previous any illegal defendant's convictions and other contact between the defendant and the victim which are being charged. necessary This information is for the judge accept reject to make an informed decision to or plea bargain. judge duty accept

A does not have a to arrangement, may judge participate nor in its formula- judge rather, and, before, tion. But as we have said is only obligated accept arrangement. or such refuse an judge role, For that must have as much information possible careftilly as consider the factors outlined parties disagree judge's If decision, above. with the attorney charges. the district can move to dismiss the If granted, attorney the motion is the district can issue new charges at discretion. his/her

I am authorized to state JUSTICE WILLIAM G. joins opinion. CALLOW concurring (dissenting). CECI, LOUIS J. J. There is some- thing fundamentally wrong in this I case. conclude that majority opinion's interpretation of the law of double directly contrary established law of plea agreement this state and further conclude that the is therefore void public policy in and against this case by compelled I to begin ab initio. I therefore dissent. feel record, by in letters as shown bringing light to facts majority opinion presentence report, which and the ignores. (which opened presentence report had been chambers) by is before this

before it was received these and, appeal as part of the record transmitted on court as majority acknowledges, part was of the reason- even the it vacated the no-contest ing by used the trial court when felony need charges. reinstated the four One pleas and why the trial court juris not be a doctor to understand report, in by the disclosures contained was shocked report detailing unspeakable a course of sexual abuse of the child became 16 child the defendant before age. years of defendant, 6, 1984, January

On who was old, married, children, fathered four years had been divorced, years previ- and then remarried almost two ously. degree The defendant had earned a master's and shop. owned a Corvette 6, 1984, victim, January February born

On 15-year-old sophomore high was a school. She prior children his was a friend of defendant's marriage and had been welcomed into the defendant's years. such for The victim lived in the same home as neighborhood as the defendant. 11 years

From about the time the victim had turned age, begun spend significant she had amounts of result, time at the defendant's home. As a the victim dependent upon the his became defendant and wife. Eventually, figure the defendant became a father such her him "Poppa that she called C." For a number of years night question, slept before the the victim over weekend, at the defendant's home at one night least each visiting with the defendant's children. 6, 1984, January

On the victim younger and her sister were visiting defendant's children sleeping dinner, over at the defendant's home. After the defen- dant, children, victim, his wife two of his younger the victim's sister were all watching rented mov- ies on the television in the defendant's living room. The defendant was on seated a couch with the victim. The wife, children, defendant's his and the younger victim's sister were all nearby seated the same room. The victim asleep, back, was half was lying her and had legs lying her lap. across the defendant's everyone While in else the room concentrating was on the playing movie television, on the the defendant was concentrating on 15-year-old the girl lying next to him. surreptitiously

The defendant maneuvered his hand under the blanket that was covering placed her and his leg. hand on her Being careful that no in one else the noticed, room slowly he moved up his hand the victim's leg, massaging caressing and her until he had his hand vaginal on her area. The victim was startled and became awake, but the defendant whispered pretend to her to sleeping. that she was still proceeded defendant then sexually to assault

the by rubbing victim her vaginal through pair area sweatpants that she was wearing.1 Not satisfied to be

1 Each of the acts between the defendant and victim are sex pursuant 940.225(2)(e), 1983-84, ual assaults to sec. Stats. which provides:

940.225 Sexual assault.... (2) Degree any Second Sexual Assault. Whoever does following guilty felony: of a Class C her 15-year-old's vaginal through area massaging drawstring slowly untied the sweatpants, the defendant her manipulated his hand inside sweatpants of her and family making All sure that his panties. the while notice, he then sister didn't take younger the victim's sexually by inserting finger her his into assault began to her vagina. began, another

As one rented movie ended and by upstairs in one people other the room drifted one up told his wife that he would be bed. The defendant while; just in see how the next movie bed he wanted to finally girl the defendant and the were came out. When room, sexually in the defendant assaulted the alone sexually breasts and continued to by fondling victim her his Even- by inserting finger vagina. assault her into her sexually by the victim tually the defendant assaulted performing upon into fellatio him. The guiding her his then took the victim into the basement of defendant sexually again performing home and assaulted her Thereafter, upon sexually her. the defendant cunnilingus every day: by having the victim almost other assaulted upon him perform performing her fellatio his couch, bed, floor, on cunnilingus on her basement, a vehicle. (e) person Has sexual contact or sexual intercourse with a who years age years. age over of 12 and under the of 16 is 940.225(4), 1983-84, Stats. Pursuant to sec. the victim's con- 940.225(2)(e). 940.225(4) sent is not an issue under sec. Section provides part: in (4) 'Consent', section, as used in means words Consent. by competent person give who is of overt actions a informed freely given agreement indicating inter- consent to have sexual alleged in

course or sexual contact. Consent not an issue violations (l)(d) (2)(c), (d) (e) .... of subs. and and ongoing The victim's consent to the sexual assaults only an issue after the victim's 16th birth- would become day, February 22, which occurred on 1984. Consent is prior pursuant not an issue 940.225(4), to that date because to sec. only given by person Stats., consent can be competent who is to show words or overt actions that freely giving agreement she is to have sexual intercourse age years or sexual contact. Persons under the incompetent of 16 are give having consent to sexual intercourse persons contact, or sexual similar to who suffer mental unconscious, illnesses 940.225(2)(c)-(e) or who are see sec. (4), Stats. 1983-84. pattern activity of sexual between the defen- April 7, 1984, dant and the victim continued until six years after the and one-half weeks victim had turned 16 according when, old, victim, to the the defendant had penis-vaginal sexual her for intercourse with the first time. defendant thereafter continued his sexual period years. abuse of the victim for a of over four She in her saw a counselor March of who told night- that she had been abused. She had started to have screaming, shaking, mares where she would awaken sweating, and then she would vomit. The victim felt peers. isolation, shame, and "different than" her part defendant, For all of the conduct on the the victim of adolescence and inno- which robbed her significant psychological cence and caused her and eco- County Attorney's Outagamie harm,2 nomic District 2 According to a letter received the circuit court from Chris M.S., Servaty, psychologist treating a licensed who was the vic tim, issues, symptoms, feelings the victim exhibited the com psychologist victims. The that she ten mon to incest stated had experience years treating sexual abuse victims. The letter part: stated caregiver/surrogate

Because Mr. Comstock was the role of father 6, 1989, consisting on October filed an information office felony All C counts. four counts related only of four Class January night on the of only the acts of the defendant despite filed the victim's other counts were 1984. No sexual assaults of the complaints about the defendant's January arraignment 1984. At after victim after 6, 1989, hearing on October the defendant preliminary to all four counts of the information. pleaded guilty 11, 1989, December the circuit court hearing At a attorney pro assistant district of a was informed felony counts 3 and of posed plea agreement to dismiss information, felony to reduce counts and to mis time, cap days' of 75 and to allow jail demeanors with a to Texas. The defendant's probation to be transferred attorney plea agreement court that also advised the attorney's prevented bringing the district office from any other committed the deten- charges for offenses victim], authority power he held and over her. [The victim] [the relationship given position was not to consent to the sexual power differential. As is the case with all incest victims the adult responsibility appropriate parental figure has to maintain sexual very their care. boundaries with children under was a [The victim] adolescent, feeling family estranged origin from vulnerable her of attention, caring, in need and direction. Mr. Comstock of adult dependency encouraged exploited emotional her [the victim's] vulnerability in order to meet his own needs. identify could not nor disclose the sexual abuse until she [The victim] had received some distance and emotional detachment from Mr. dynamic extremely 'keeping Comstock. of the secret' is common retribution, believed, being with incest victims. Fears of of not of being responsible negative family, feelings for outcomes for the guilt prevent 'telling disclosing and shame victims from or secret'. recovery process probably require current will several [The victim's] years therapy. average range more of treatment for incest years. victims is three to five sister, against younger dant or her either victim who also by had been assaulted the defendant. The victim present stated she was day that that and was plea bargain. shocked She had not previously only been advised of the bargain and knew about it presented in open when it was court. She was not asked plea bargain. proceed- to comment about the The entire ing took less than 20 minutes. majority opinion infer, would like readers to statute,

footnoting rights the victims' the victim opportunity express had an her dissatisfaction with to the Majority op. circuit court. at 931 n.14. Such an inference should not be made. The verbatim transcript of the portion plea hearing relevant of the is as follows: DISTRICT Your

[ASSISTANT ATTORNEY]: Honor, present indicated she'd like to be [the victim] [sentencing] hearing, for that and it would be easier Friday her Monday, for to come back on a or a request get would if to see we could that date on a Friday Monday. or school, you

THE COURT: Are ma'am? Yes.

[THE VICTIM]: University of Minnesota [THE VICTIM]: Minneapolis. your THE you COURT: And what —Don't any holiday

have break? Oh, yes, just it would be a little [THE VICTIM]: date, regardless I bit inconvenient. will be here preference Ibut was if I asked had a of the date. going THE COURT: Are there classes on at that time? Yes. We are on a trimester. Our

[THE VICTIM]: 9n/i nroalr orine fno might point I

[DEFENDANT'S ATTORNEY]: out, Honor, prior January Your 15 is an official King Day,

Martin Luther I don't if know Minnesota goes where to school has that same date. [the victim] be, In they effect it if would did have that same observance, day would be the first school of that week, guess so I equivalent it would be Monday to a if they did have that same observance. Well,

THE COURT: I discourage don't want to your presence, you but it looks like can be available reasonably. okay. That's

[THE VICTIM]: THE going keep COURT: So I am it on that date. The 15th or 16th? [DEFENDANT'S Sixteenth. ATTORNEY]: you.

Thank As easily can be seen from transcript, the victim was given the opportunity express to her dissatisfaction with the to the circuit court. from, issue that I dissent whether jeop double

ardy and process prevent due the reinstatement 4, counts 3 and is an issue of constitutional fact. This court reviews questions of constitutional fact without deference to the decisions of the lower courts. State v. Anderson, 441, 165 447, Wis. 2d (1991). 477 N.W.2d 277

This court has consistently held jeopardy that upon "attaches" the circuit court's acceptance guilty of a or plea.3 Jeopardy no-contest also attaches when a wit- ness is sworn in a trial to a court jury without a or when jury has been sworn in jury 972.07, trial. Section However, Stats. until today, this court has never held jeopardy that attaches separate to counts of an informa- tion to which a defendant pleaded had not guilty, which Waldman, 3 See 234, 237, State v. 57 Wis. 2d 203 N.W.2d 691 (1973); State, 708, 714, Salters v. 52 Wis. 2d 191 N.W.2d 19 (1971); State, 264, Hawkins v. 30 Wis. 2d 140 N.W.2d 226 (1966); State, 57, 62, 189 and Belter v. (1922). 178 Wis. N.W. 270

962 trial, prior to a defendant's and to which were dismissed or accepted guilty had not a defendant's no- a court majority today plea. contest The result reached Waldman, contrary State v. 57 2d directly Wis. (1973), State, Montgomery v. 203 691 128 N.W.2d 183, 107 (1906). My 14 examination of Wald- Wis. N.W. Montgomery, conjunction man and with U.S. Supreme precedent, major Court convinces me that the ity today. reaches an erroneous result Waldman,

In this court stated that of not "[a] Waldman, trigger jeopardy." does not double 57 guilty Waldman, Therefore, following jeopardy 2d at 238. Wis. never attached to counts 3 and 4. Montgomery,

In this court stated that "the accused actually trial must have put must be on trial —that is the in jeop- commenced —before he can be said to have been Montgomery, ardy." 128 Wis. at 195. The defendant here in Mont- position similar as the defendant stands gomery regard to counts 3 and which were dis- with jeopardy never in to counts 3 and 4. missed: he was as Supreme precedent supports U.S. Court's also my jeopardy never attached to counts conclusion States, (1975), 4. In v. United U.S. Serfass charges held that does not attach the Court prior in dismissed to a defen an indictment that are put Serfass, trial. 420 U.S. at 389. being dant's in granted had the defen federal district Serfass prior indictment to trial. dant's motion to dismiss the " risk of a deter Supreme [wjithout Court held that attach, and neither guilt, jeopardy does not mination double appeal prosecution an nor further constitutes analy Id. 391-92. The Court concluded its jeopardy." at principle is a "fundamental that an noting sis that it he can suffer jeopardy accused must suffer before double Id. jeopardy." at 393.

963 apparent reading It from information that the charged separate offenses counts 3 and 4 were charged from the offenses which were different acts 1 counts and which were the reduced counts. See State (1980) Eisch, 25, 31-34,

v. 96 Wis. 2d 291 N.W.2d 800 (four intercourse, acts of sexual each different in kind differently statutes, from others and defined separately chargeable offenses, constitute four criminal place when all of the acts took at the same location period within a of time that did exceed two and one- hours). jeop- I half ardy would therefore conclude that double prosecution

does not bar the further of counts 3 and 4. protected addition,

In no interest defendant jeopardy implicated by allowing the double clause is prosecution continued of counts 3 and 4. The double jeopardy protection against prose- clause offers a second acquittal; protects cution for the same offense after it against prosecution a second for the same offense after protects against multiple punishments conviction; and it Johnson, for the same offense. Ohio v. 467 U.S. at 498. protects princi- The double clause therefore ples repose: multiple against of fairness trials prohibited, defendant for one criminal act are and the beyond state cannot sentence a defendant the limits imposed by legislature. Here, Id. at 498-99. none of protections implicated by allowing these would be rein- acquittal statement of counts 3 4. and There has been no 4. counts 3 and Counts 3 and are different offenses charged than what was under counts so there prosecution multiple punish- would not be a second or ments. As the defendant committed four felonious crimi- prosecution acts, nal the continued of counts 3 and multiple would not be a trial for one criminal act nor beyond sentence expanding it the defendant's would be imposed by legislature. the limits jeopardy prevent I does not conclude that double 4 felony counts 3 and of the informa- reinstatement 4 Counts 3 and were dismissed the circuit court tion. and, therefore, plea, prior accepting the defendant's 4. In deciding never attached to counts 3 and reinstated, majority that these counts cannot be opinion comports reaches a result that with neither the Supreme precedent precedent U.S. Court's nor the this court. in required is

The reinstatement of counts 3 case, only they this not because are not barred double do otherwise would be jeopardy, but also because to State, Young In v. against public policy. 49 Wis. 2d (1971), in we stated that certain circum- N.W.2d previously accepted plea must vacate a stances a court plea agreement against public policy. if agreement Young, proba- In to recommend prosecutor agreed plea. was exchange tion for a no-contest After the presentence report recommended commit- accepted, the because of the ment to the state correctional institution adjustment defendant's difficulties and mental health In problems. responding to the defendant's assertion pro- attorney that the district was bound recommend regardless presentence investigation bation of what the revealed, agreement we noted that such an would have to against public policy: be vacated as presentence report developed if Even facts probation made not the best interests of the com- himself, munity or of the defendant the district attor- ney, argued, what it is bound himself to recommend disposition longer proper he no believed to be a agreement, reversal case. were fact If agreement required, he because the was would agreement kept, but because the was void as againstpublicpolicyab initio. added).

Young, (emphasis at 369 49 Wis. 2d totality in of the circumstances this case and by egregiousness of the offenses as shown the record require plea agreement before this court that this be against public policy. considered void as While there may provable certainly case, in not be a fraud it appears sleight-of-hand ifas there was some maneuver- ing attorney here the assistant district and the defen- plea agreement I in dant. conclude that the this case is void ab initio. plea agreement against following

This void as public policies: sentencing penalties defendants with appropriate only allowing committed; to the crimes plea agreements those that are believed the district attorney proper disposition serving case; to be a public's prosecuting abusers; in interest child well-being concern for the needs and acknowledging of victims. After public policies, majority the above opinion implies they significant that are not and states they according because, are not relevant to this case majority, only public policy to the relevant is that a presentence investigation court should not consider a prior Majority op. major- to conviction. at 952-953. The ity opinion attempt explain why does not to the one public policy hangs upon important it its hat is more public policies than the listed above. When one considers public weighs policies case, all relevant in this it is apparent plea agreement against public that the here is policy. proposed days sentence of 75 does not take into particular

account the rehabilitative needs of this victim. significant psycho- The victim this case has suffered logical damage punished and needs to see the defendant important part therapy. psy- of her The victim's an as chologist stated: respond like

The last I to to this letter issue would importance of need to is the hold Rob- [the victim's] harm ert Comstock accountable for the and trauma experience. required has her to It has he caused personal courage emo- tremendous amount legal pursue options energy tional for [the victim] way for against perpetrator. her This is a her express appropriately anger her and to reclaim personal power important life. It is an sense her recovery. step needs to feel her toward her She that being seriously by court victimization is taken the system him others will hold accountable as and that well. stated, opinion have in a previously

We unanimous Abrahamson, for by majority Justice who writes the for today, prosecuting alleged that not an child abuser "may her inflict harm on the child greater his or acts a free demon- by allowing alleged go the abuser to and that the of does not strating to the child state Wisconsin suffering child's to high enough a value on the place the justice person alleged to to have caused bring Gilbert, 501, 507, suffering." State v. 2d 326 109 Wis. sadly (1982).4 Today's majority opinion N.W.2d 744 for the victim's welfare abandons this concern get slap off a on the Mr. Comstock to with virtual allows acts committed. Whatever wrist for the heinous he has Jones, 488, 496, 444 also v. 4 See State 151 2d N.W.2d Wis. (Ct. 1989) ("where App. a minor child has been the victim 760 crime, significant finds that a sexual and where trial positive perpetrator will of that crime have a incarceration effects," "espe recovery from its it influence the child's appropriate needs at cially" consider the victim's rehabilitative to sentencing).

967 process due interests the defendant has are far out- public weighed by policy concerns outlined above. addition, In majority opinion cases upon relies 950 proposition "subsequent at for the that a reprosecution of a result of charge dismissed as a a by elementary bargain process" is barred due are inappli State, to Nelson v. cable this case. case of 2dWis. 769, 775, (1972), merely 193 N.W.2d 704 mentioned so dicta that other cases had held. cases cited State, 727, 734-36, Nelson are Austin v. 49 Wis. 2d (1971); State, 185, v. N.W.2d 56 and Mallon 49 Wis. 2d 189-90, (1970). In 181 N.W.2d 364 Austin both Mallon the issue was whether a defendant could with guilty plea uncharged draw after offenses were "read in" to sentencing pursuant the record at the time of plea bargain. the defendant's Austin and Mallon are inapplicable therefore to this case. of appeals The court Bond, v. 187-88, decision State 139 Wis. 2d (Ct. 1987), App. N.W.2d 277 U.S. Supreme York, Court v. decision Santobello New 404 U.S. (1971), binding both concerned the issue of the state prosecutor's promise, which is not issue before today. the court

I would portion affirm that of the unanimous court appeals decision which held jeopardy that did not that, attach to the charges two dismissed case therefore, double does not bar their reinstate- addition, ment. In I plea agreement conclude public this case against policy is and is therefore ab void initio.

The manner in which this entire case has been han- by dled attorney district shameful. The sexual and psychological abuse suffered this victim —when she was a child —cries out justice, for and this court now compounds injustice.

For the reasons stated and because there is some- fundamentally thing wrong in this case as determined majority, I dissent.

Case Details

Case Name: State v. Comstock

Court Name: Wisconsin Supreme Court

Date Published: Jun 17, 1992

Citation: 485 N.W.2d 354

Docket Number: 90-2080-CR

Court Abbreviation: Wis.