March 15, 2016 – The Wisconsin Supreme Court has unanimously ruled that the state did not breach a plea agreement by recommending “consecutive” sentences where the plea agreement was silent on the issue of “concurrent” or “consecutive” sentences.
Defendant Patrick Tourville argued that his defense lawyer was ineffective for failing to object to the state’s breach. But in State v. Tourville, 2016 WI 17 (March 15, 2016), the supreme court ruled that the lawyer was not ineffective, because there was no breach.
“Given the State did not breach the plea agreement by arguing for consecutive sentences, Tourville fails to establish the deficient performance necessary for an ineffective assistance of counsel claim,” wrote Justice Ann Walsh Bradley.
The state had charged Tourville with 17 criminal counts in four unrelated cases. All the charges were consolidated into one plea agreement. Tourville agreed to plead guilty or no contest to four charges, including felony theft as a party to the crime.
The agreement indicated that the state would cap its sentencing recommendation at the high end of the sentence recommended by a presentence investigation report (PSI).
The PSI recommended initial confinement and extended supervision on each of the four counts. It did not recommend whether the sentences should be concurrent or consecutive. Thus, the state recommended that Tourville serve consecutive sentences.
Ultimately, the court sentenced Tourville to consecutive sentences totaling 14.5 years in prison and 11.5 years extended supervision. In a postconviction motion, Tourville argued that his defense lawyer should have objected to the state’s recommendation.
The supreme court noted that Tourville’s ineffective assistance claim hinged on whether the state breached the plea agreement. A breach with no objection could amount to ineffective assistance, the court explained. But it concluded there was no breach.
“If the recommendation for concurrent sentences was not bargained for and is not contained within the terms of a plea agreement, we will not engraft those terms into the agreement,” wrote Justice A.W. Bradley, applying contract law principles.
The supreme court also cited the controlling 2005 case of State v. Bowers and rejected Tourville’s argument that Bowers is distinguishable or should be overturned.
In Bowers, a plea agreement was also silent on whether the defendant’s sentence should be consecutive or concurrent with a sentence he was already serving.
“In sum, we agree with both the circuit court and the court of appeals that Bowers controls the outcome of this case,” Justice A.W. Bradley wrote.
Finally, Tourville argued that there was an insufficient factual basis to accept his guilty plea for felony theft as a party to the crime. He said he had nothing to do with the felony theft. But the supreme court noted evidence that he was “a party” to that crime.
A person is a “party to a crime” if they intentionally aid and abet the commission of it. Tourville admitted that he assisted three other men who stole a gun safe containing firearms. Tourville brought them to his campsite, helped them access the safe, and helped dispose of the safe in a swamp. They paid Tourville for the services he provided.
“These facts provide a sufficient basis for Tourville’s guilty plea to the charge of party to the crime of felony theft,” wrote Justice A.W. Bradley for the unanimous court.