FILED nov 5, 1996
STATE OF WISCONSIN, Plaintiff, vs CHRISTOPHER JONES Defendant
Case No. F-962085
LEGAL MEMORANDUM IN SUPPORT OF RIVEST HEARING
STATEMENT OF CASE AND OFFER OF PROOF
On July 22, 1996, Attorney Curt Rogers notified Assistant District Attorney Karine O'Byme that the defendant would be accepting the State's offer of a plea negotiation. The defendant plead no contest pursuant to a plea negotiation reached with Assistant District Attorney Karine O'Byme pursuant to negotiations outlined in an offer letter to the defendant, dated April 24, 1996. It was a joint request to have the sentencing adjourned and the court ordered a pre-sentence investigation.
Although the offer letter clearly states that the District Attorney's Office will recommend 24 months in the State Prison, the letter goes on to note that the State's position is contingent on "There be no new criminal charges filed against the defendant prior to sentencing." The letter goes on to state that new criminal charges would be considered by the State to be a material and substantial breach of the plea agreement which would release the District Attorney's Office from its obligation to make this recommendation. A copy of the State's offer letter is attached hereto and incorporated by reference and marked for identification as "Exhibit A."
The defendant, defense Attorney Curt Rogers, and Assistant District Attorney Karine O'Byrne, also entered into a separate agreement wherein the defendant agreed to work as a confidential informant and the District Attorney's Office agreed to consider the defendant's work when making the State's recommendation. A copy of this agreement is attached and incorporated by reference and marked for identification as "Exhibit B." Exhibit B provides, among other things, that "Upon the conclusion of the defendant's cooperation with police, the District Attorney's Office will determine what consideration will be given to the defendant for his/her cooperation; the decision as to what benefit the District Attorney's Office will give to the defendant for his/her cooperation is solely within the discretion of the District Attorney's Office."
On August 23, 1996, Attorney Curt Rogers came to the District Attorney's Office in order to modify the terms of the written agreement. At that time, Attorney Rogers informed Assistant District Attorney Karine O'Byrne and Assistant District Attorney Patrick J. Kenney, that the defendant had urgent information regarding a conspiracy to commit a first degree intentional homicide of a member of the City of Milwaukee Police Department. However, Attorney Rogers informed the District Attorney's Office that his client would be willing to cooperate in this investigation and identify co-conspirators only if our office would make an affirmative recommendation that the defendant would not be sentenced to prison. At that time, Assistant District Attorney Patrick J. Kenney stated to Attorney Rogers that if the information
provided by the defendant was corroborated by some independent information, the District Attorney's Office would agree not to recommend prison as part of the disposition in the defendant's case.
Based upon information obtained from the defendant, several individuals were arrested on August 23, 1996, for conspiracy to commit first degree intentional homicide of a City of Milwaukee police officer. As a result of the investigation, five separate individuals were charged with a variety of criminal offenses. Three defendants confessed to taking part in the conspiracy. However, investigating officers determined that the defendants who admitted their involvement identified the defendant as the person who initiated the conspiracy.
For the purpose of this motion, Det. Octavio Delgado executed an affidavit, attached hereto and incorporated by reference, and marked for identification as "Exhibit C." The next several paragraphs will attempt to summarize Det. Delgado's affidavit and its attachments.
As a result of the arrests on August 23, 1996, three separate individuals were charged with Conspiracy to Commit First Degree Intentional Homicide and Conspiracy to Commit Arson of a Building. This matter is pending in Circuit Court Case No. F-964321 and Det. Delgado is the complaining witness. The three defendants are Tyrone Stallings, Joseph Davis, and Edward Jackson. Each of the defendants gave statements reflecting that Christopher Jones initiated the conspiracy. Additionally, an individual by the name of Dwayne Brown was also arrested with the co-conspirators. Brown is charged with Possession of a Firearm by a Convicted Felon, in F-964320. Brown's statement is also attached to Det. Delgado's affidavit and Brown's statement reflects that he was present because he had received a telephone call from Christopher Jones and during the conversation, Christopher Jones asked Brown to sell him a 9mm pistol.
On October 1, 1996, a police officer working in an undercover capacity, notified the Gang Crimes Unit that the officer believed that the undercover officer had purchased marijuana from the defendant, Christopher Jones. Christopher Jones was arrested by members of the Gang Crimes Unit and questioned regarding the alleged sale of marijuana and his involvement in the conspiracy to commit homicide. Although the defendant denied being involved in the homicide conspiracy, the defendant admitted that he was a marijuana dealer. According to Delgado's affidavit, the defendant stated that on the night the suspects were arrested for conspiracy to commit homicide, the defendant had ten pounds of marijuana in his home. During the defendant's October 1, 1996 interview, the defendant stated that he presently had a pound of marijuana in his home. However, the defendant then changed his statement and told Officer Delgado that the pound of marijuana was in a friend's house located at 2325 North 15th Street. After receiving this information, members of the Gang Crimes Unit did a "knock and talk" at the residence, located at 2325 North 15th Street, and were permitted to search the residence. During the search of the residence, officers recovered 404.4 grams (approximately 14-1/2 ounces) of marijuana from the residence. The defendant was released from custody on October 1, 1996, because the undercover officer was unable to identify the defendant as the person from whom the officer had purchased marijuana.
On October 7, 1996, the defendant appeared before this court for sentencing. At that time, the State argued that the defendant had materially breached his plea agreement and requested a "Rivest" hearing to decide the issue. The defendant was remanded and a hearing was scheduled for November 11, 1996.
The defendant provided an additional statement to police on October 9, 1996, while in custody and in the presence of his new attorney, Alan Eisenberg. The defendant reasserted he was not involved in the conspiracy. However, the defendant again acknowledged that he had a large quantity of marijuana in his house on August 23, 1996. This report is also attached to Det. Delgado's affidavit.
Has the defendant materially breached his plea negotiation and is the State relieved from recommending 24 months in the Wisconsin State Prison?
THE DEFENDANT HAS MATERIALLY BREACHED HIS PLEA NEGOTIATION WITH THE STATE OF WISCONSIN BY COMMITTING NEW CRIMINAL OFFENSES AND THE STATE SHOULD BE RELIEVED FROM RECOMMENDING 24 MONTHS IN THE WISCONSIN STATE PRISON AT THE DEFENDANT'S SENTENCING.
The State is requesting that the court release the State from its obligation under the plea agreement to recommend that the defendant serve a sentence of 24 months in the Wisconsin State Prison. State v. Rivest. 106 Wis.2d 406 (1982) requires that when the State seeks release from its obligations under a plea agreement because of an alleged breach of the agreement by the defendant, an evidentiary hearing is necessary to determine if there was a breach and if that breach was sufficiently material to release the State from its obligations under the agreement. Also see State v. Toliver. 187 Wis.2d 346 (Ct. App. 1994). The burden of proof is on the State to show by clear and convincing evidence that not only a breach occurred, but also that it was material and substantial. State v. Jorgenson. 137 Wis.2d 163, 168 (Ct. App. 1987).
In State v. Rivest. supra, the defendant admitted his participation in a robbery of a gas station owner but denied any involvement in his subsequent murder. The State and Rivest entered into a plea agreement, during which the defendant agreed to plead guilty to a charge of robbery and testify against the accomplice who Rivest accused of murdering the gas station owner. Prior to his trial, Rivest gave a conflicting statement regarding his involvement in the robbery and homicide. Therefore, the district attorney decided not to call Rivest as a witness against the accomplice at trial and charged Rivest with First Degree Murder. The defendant Filed a motion to bar his prosecution for First Degree Murder based upon the earlier plea negotiation. After hearings and arguments, the trial court entered an order setting aside the plea agreement and guilty plea to the robbery charge and authorized the State to continue the prosecution of the homicide complaint. The trial court held that the defendant had fraudulently induced the State to enter into the plea agreement through his false and misleading statements and materially breached the agreement by giving false testimony at his accomplice's preliminary hearing.
Initially, the Supreme Court determined that it was appropriate to have a hearing before the trial court to address the issue: "By analogy to contract law, we conclude the a plea agreement may be vacated where a material and substantial breach of the plea agreement has been proved. To allow a defendant to claim the benefit of an agreement where he, himself, is in default, offends fundamental concepts of honesty, fair play and justice." Id at 414.
The Court went on to establish that the burden of proof is on the party seeking release from the agreement: "We further hold that the constitutional due process requirements of decency and fairness are satisfied where the burden is placed upon the party seeking to vacate the agreement to establish both a breach, and that the breach is sufficiently material to warrant releasing the party from its promises (prosecution or defense) before the same judge who accepted the plea, whenever possible." Id at 414.
Although Rivest argued that his inconsistent statements were not a sufficient breach of the plea agreement to justify the vacation of the agreement, the Supreme Court disagreed, "It is ludicrous for the defendant to argue that his penurious testimony was anything less than a grave and material breach of the plea agreement." Id at 416. In the instant case, the defendant plead guilty pursuant to a plea negotiation reached with Assistant District Attorney Karine O'Byme pursuant to negotiations outlined in an offer letter to the defendant, dated April 24, 1996. Although the offer letter clearly states that the District Attorney's Office will recommend 24 months in the Wisconsin State Prison, the letter goes on to state that the State's position is contingent on "There be no new criminal charges filed against the defendant prior to sentencing." The offer letter goes on to state that the new charges would
be considered by the State to be a material and substantial breach of the plea agreement which would release the District Attorney's Office from its obligation to make this recommendation.
The State respectfully submits that the offer letter (Exhibit A) should be reviewed by the court to determine the conditions of the plea negotiation. In the past, Wisconsin appellate courts have consistently found that letters between the parties are convincing evidence of the terms of an agreement. State v. Bangert. 131 Wis.2d 246, 289 (1986); State v. Windom. 169 Wis.2d 341, 349 (Ct. App. 1992); State v. Toliver. 187 Wis.2d 346, 356 (Ct. App. 1994).
The facts in this case are substantially identical to the facts presented in State v. Toliver, supra, (Ct. App. 1994). Toliver and Dangelo Banks were suspected of committing sexual assaults. Toliver entered into a plea agreement with the State and entered a guilty plea to two counts of First Degree Sexual Assault. In exchange for the guilty plea, the State agreed to dismiss two other charges against the defendant and make a specific sentencing recommendation. Additionally, the defendant agreed to testify against co-defendant Dangelo Banks. However, at Banks' trial, Toliver refused to testify. The agreement specifically provided that the State would be free to recommend any penalty if the defendant violated the terms of the agreement. At sentencing, the State recommended a substantial consecutive prison sentence on the two charges of First Degree Sexual Assault for which the defendant had already plead guilty. Toliver argued that he should be permitted to withdraw his guilty plea. He argued that his failure to testify against Banks rendered the plea agreement null and void.
The Court of Appeals disagreed, "The State did not breach the agreement, Toliver did.
The State was following the sanction proviso of paragraph ten when it gave its sentencing
recommendation. Thus, to allow Toliver to claim the benefit of a new sentencing hearing when he breached the agreement offends the fundamental concepts of Rivest." Id at 357-358.
In the case before the court, the defendant solicited individuals to commit the homicide of a City of Milwaukee police officer in order to solve the crime and later take credit for the arrests of the co-conspirators. Additionally, the defendant has admitted to possessing and distributing large quantities of marijuana while out on bail and awaiting sentencing in this case. Therefore, the defendant has materially and substantially breached the agreement by committing substantial violations of the law.
For the reasons stated herein, the State respectfully requests that the court find that the defendant materially and substantially breached the plea agreement and the State is released from its obligation to recommend 24 months in the Wisconsin State Prison.
Dated at Milwaukee, Wisconsin this 4th day of November, 1996.
PATRICK J. KENNEY ' Assistant District Attorney State Bar Number 102230 GC
821 W. State Street, Room 208
Milwaukee, WI 53233
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