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  • WisBar News
    February 24, 2015

    Sentencing Sticks Despite Mutual Misunderstanding on Plea Deal

    Joe Forward
    Legal Writer

    Feb. 24, 2015 – Nelson Fortes waived his right to withdraw a guilty plea because he proceeded with sentencing despite a mutual misunderstanding about the deal, a state appeals court has ruled while rejecting his ineffective assistance of counsel claim.

    The circuit court in Milwaukee County convicted Fortes for battery against an elderly person and burglary to a dwelling. Fortes and an accomplice broke into an elderly woman’s home, covered her head, and hit her in the face before stealing her jewelry.

    Ultimately, he pleaded guilty. At the plea hearing, the court was not made aware of any plea agreement but conducted the plea colloquy to ensure Fortes was entering the plea knowingly, voluntarily, and intelligently. The issue came up regarding sentencing.

    The state made a sentence recommendation totaling six years in prison with eight years extended supervision, but defense counsel argued that the state agreed to submit a presentence investigation (PSI) report with no sentence recommendation.

    The parties agreed, defense counsel argued, to let the judge decide the sentence with no recommendation from the state. However, the state believed both sides could still argue the sentence so long as the state dropped an additional robbery charge.

    The court found a mutual misunderstanding between the parties. At this time, defense counsel told Fortes he could seek a plea withdrawal, seek adjournment to review the plea hearing transcript, or proceed with sentencing and argue the sentence.

    Fortes chose to proceed with sentencing, and the sentencing judge followed the state’s recommendation for six years in prison with eight years of extended supervision.

    Fortes filed a postconviction motion for relief, requesting a plea withdrawal and a resentencing with a different judge. He said the plea hearing judge erred because he should have asked about the plea agreement during the plea colloquy and did not.

    Without knowing the terms of the plea deal, Fortes could not enter the plea knowingly, intelligently, or voluntarily, Fortes argued through his postconviction counsel. He also said his trial counsel was ineffective for failing to accurately convey to him the terms of the plea deal and failing to object when the state breached the agreement.

    The circuit court denied the motion, concluding that Fortes waived his right to a plea withdrawal when he proceeded with sentencing despite the mutual misunderstanding.

    In State v. Fortes, 2014AP714-CR (Feb. 24, 2015), a three-judge panel for the District I Court of Appeals affirmed, concluding Fortes waived his right to withdraw the guilty plea and his trial counsel was not ineffective for failing to object at the sentencing hearing.

    The panel rejected Fortes’s reliance on a 2006 case, State v. Brown, in which the Wisconsin Supreme Court concluded that defendants can request plea withdrawals after sentencing if based on a deficiency in the plea colloquy process.

    “We are not convinced that [Brown’s] proposition applies where a concern about the defendant’s understanding of the plea has been raised prior to sentencing and the defendant specifically elects to proceed with sentencing,” wrote Judge Joan Kessler.

    The panel noted that Fortes “explicitly elected” to proceed with sentencing even though he knew there was a mutual misunderstanding about the plea agreement.

    “In doing so, Fortes waived his right to subsequently seek plea withdrawal based on his misunderstanding of the plea agreement, the trial court’s plea colloquy, or the State’s decision to recommend a specific sentence,” Judge Kessler wrote.

    The panel noted a 1984 case, State v. Paske, in which the appeals court held that a defendant waived a right to challenge a plea agreement breach because the defendant expressly chose to proceed to sentencing despite a sentence recommendation change.

    “We conclude that Fortes, like the defendant in Paske, waived his right to seek plea withdrawal when he elected to move forward with sentencing, knowing that the State would be making a specific sentencing recommendation,” the panel noted.

    The appeals panel also noted that unlike the 1984 case of State v. Scott, the state did not withdraw, post-plea, its clear agreement on sentencing. “At sentencing, Fortes specifically told the trial court that he wished to proceed with sentencing, despite the confusion over what the State had agreed to recommend,” Judge Kessler wrote.

    Finally, the panel rejected Fortes’s argument that his trial counsel was ineffective, noting that his lawyer advised him of his options when confusion arose at sentencing.

    “Fortes implies that trial counsel should have sought to enforce the plea agreement,” Judge Kessler wrote. “However, as we have explained, trial counsel did, in fact, raise the issue at the sentencing hearing. Further, the trial court later determined that there was no plea agreement due to the parties’ mutual misunderstanding.”

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