State v. Conger
2010 WI 56, 2010 Wisc. LEXIS 50, 325 Wis. 2d 664 (2010)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A circuit court has inherent authority and statutory basis to independently review and reject a plea agreement, including amendments to charges, if it deems the agreement not to be in the public interest, and the views of law enforcement can be one of many appropriate factors in this determination. A judge's rejection of a plea agreement alone does not automatically require recusal.
Facts:
- Joshua D. Conger was charged with possession with intent to deliver more than 200 grams but less than 1000 grams of marijuana within 1000 feet of a park (a Class H felony) and possession of drug paraphernalia.
- Police found forty-eight individually wrapped baggies of marijuana totaling 774 grams, a digital scale, a box of sandwich baggies, and marijuana stems hidden behind a ceiling tile in the home Conger shared with his girlfriend and a third person.
- Conger reportedly told a police officer that he owed $2900 to a drug supplier.
- Conger, who was 22 at the time of the offense and had no prior record, negotiated a plea agreement with the prosecutor.
- The plea agreement proposed reducing the felony charge to three counts of misdemeanor possession of marijuana with intent to deliver, dismissing the drug paraphernalia charge (to be read-in at sentencing), and included a recommendation for specific sentencing terms.
- The prosecutor's rationale for the plea offer included Conger's lack of prior record, the drugs being found in a shared residence, Conger not admitting ownership, his good conduct on bail, and participation in drug/alcohol counseling, aiming to give him a chance to "clean up his act."
- Circuit Court Judge Peter L. Grimm expressed skepticism about the proposed amendment of charges and requested additional information, including the correct weight and street value of the marijuana, the status of co-defendants' cases, and the drug unit's (MEG Unit) opinion of the agreement.
- The MEG Unit informed the court that they "generally [are] not[] in favor of reductions from felonies to misdemeanors."
Procedural Posture:
- Joshua D. Conger was charged by the State in Fond du Lac County Circuit Court, the Honorable Peter L. Grimm presiding, with felony possession with intent to deliver marijuana and possession of drug paraphernalia.
- The prosecutor and Conger presented a negotiated plea agreement to the circuit court, which included amending the felony charge to misdemeanors.
- The circuit court held three plea hearings, during which Judge Grimm expressed skepticism and requested additional information before ruling on the motion to amend charges per the plea agreement.
- The circuit court denied the motion to amend the information pursuant to the plea agreement.
- Conger moved the circuit court for an order of recusal, arguing that Judge Grimm had acted in an adverse capacity or created an appearance of partiality.
- The circuit court denied Conger's motion for recusal.
- Conger petitioned for an interlocutory appeal, and the State joined Conger's petition, to the Wisconsin Court of Appeals.
- The court of appeals granted the petition, directed Judge Grimm to arrange representation and file a response, and designated Conger and the State as co-appellants and Judge Grimm as an intervenor-respondent.
- The court of appeals then certified the appeal to the Wisconsin Supreme Court under Wis. Stat. § (Rule) 809.61.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
1. Does a Wisconsin circuit court possess the authority to independently review and reject a negotiated plea agreement that involves amending felony charges to misdemeanors, based on whether the agreement serves the public interest? 2. Are the views of law enforcement an appropriate factor for a circuit court to consider when evaluating such a plea agreement? 3. Does a circuit court judge's rejection of a plea agreement, in itself, automatically mandate recusal from further participation in the case? 4. Does a judge become a 'party' or 'amicus curiae' requiring recusal under Wis. Stat. § 757.19(2)(b) if designated as an intervenor-respondent by an appellate court during an appeal of their plea rejection decision?
Opinions:
Majority - N. Patrick Crooks, J.
Yes, a circuit court may reject a plea agreement, including amendments to charges, if it independently determines the agreement does not serve the public interest, and it may consider the viewpoint of law enforcement as one appropriate factor. No, a judge's rejection of a plea agreement does not automatically require recusal under Wis. Stat. § 757.19(2)(f) or (c). The question of whether Judge Grimm's designation as an intervenor-respondent requires recusal under Wis. Stat. § 757.19(2)(b) is remanded for further factual development. The court's authority to reject a plea agreement stems from Wis. Stat. § 971.29 (which permits amendment of charges without judicial approval only prior to arraignment) and its inherent authority, as established in State v. Kenyon and Guinther v. City of Milwaukee, to reject pleas that are not in the public interest. This judicial review serves as a crucial safeguard to protect the integrity of the plea process, akin to independent determinations of a factual basis for a plea or whether a plea is knowingly, intelligently, and voluntarily made. This approach reconciles the prosecutor's broad discretion in charging decisions with the court's jurisdiction once a criminal proceeding has commenced; the prosecutor's unchecked discretion to amend charges ends at arraignment. The "public interest" standard is broad and not capable of precise outlines, meaning the factors a court may weigh will vary by case. One appropriate factor among many may be the viewpoint of law enforcement, and considering this factor does not automatically invalidate the decision. This is distinct from State v. Matson, which concerned a breach of a joint sentencing recommendation after a plea was already entered. Here, the court sought law enforcement input before accepting the plea as one of several factors. Finally, a court's rejection of a plea agreement does not, in itself, constitute a "personal interest in the outcome" under Wis. Stat. § 757.19(2)(f) or acting in an adverse capacity, and thus does not automatically require recusal. The presumption that judges are free from bias and prejudice is well established. However, the court remanded the specific issue of whether Judge Grimm's designation as an "intervenor-respondent" by the court of appeals means he has become a "party" or "amicus" in the action, which could trigger a different recusal requirement under Wis. Stat. § 757.19(2)(b).
Dissenting - David T. Prosser, J.
No, a circuit court should not have broad, independent authority to reject a plea agreement solely based on its view of "the public interest" in a way that infringes upon the executive branch's core power to prosecute criminal actions. A judge's rejection of a plea agreement on policy grounds constitutes involvement in the prosecution, compromising judicial impartiality, and Wis. Stat. § 971.29 was not intended to grant such broad authority to the judiciary regarding plea agreements. The majority opinion improperly expands the power of the judiciary at the expense of the executive branch, crossing a well-understood line separating the executive's power to prosecute from the judiciary's power to adjudicate. The "inherent authority" relied upon by the majority is largely based on Guinther v. City of Milwaukee and State v. Kenyon, which involved prosecutors moving to dismiss charges, not the rejection of negotiated plea agreements on public interest grounds. Historically, while judges had statutory roles in initiating complaints, this was an impartial function, not a prosecutorial one. Legislative changes in 1969 (Wis. Stat. § 968.02) explicitly granted primary authority to district attorneys to issue complaints, with limited judicial review. Wis. Stat. § 971.29(1), allowing amendments without leave of court prior to arraignment, was historically interpreted as a protection for defendants against prejudice, not a grant of broad judicial review over plea agreements. Judicial participation in plea bargaining is generally prohibited to maintain neutrality. When a court rejects a plea agreement on policy grounds, it becomes involved in the prosecution, taking on a role that compromises its neutrality. The majority's emphasis on "independent review" and a "duty" for courts to evaluate plea agreements in terms of "the public interest" will lead to judges becoming normative actors in plea decisions, open to criticism, and potentially aligning with law enforcement against district attorneys, thereby systematically undermining the authority of prosecutors.
Concurring - Shirley S. Abrahamson, C.J.
Yes, the circuit court correctly exercised its power to reject the plea agreement, and the majority opinion appropriately stresses the significant weight due to the prosecutor's recommendation while upholding the judiciary's constitutional role in checks and balances. No, the majority's decision does not unconstitutionally expand judicial power. While affirming the circuit court's de novo power to reject a plea agreement, the majority opinion correctly stresses the significant weight a circuit court should give to the district attorney's recommendation and evaluation of the public interest. This deference to the prosecutor's reasoning preserves the office's necessary autonomy. Judicial review of prosecutorial decisions to amend or dismiss charges is a necessary "safety valve" to assure fairness and promote trust in the legal system. Contrary to the dissent's assertions, Wisconsin's constitutional and statutory history, and long-standing precedents of this court, demonstrate that a circuit court's evaluation of plea agreements is not a usurpation of executive power but rather maintains proper checks and balances between government branches. The office of district attorney has no "core" or inherent powers beyond what statutes provide, whereas circuit courts have inherent and implicit power in performing their functions. The power to file charges has historically been, and continues to be, shared between the district attorney and the judiciary (e.g., Wis. Stat. § 968.02(3) allows judges to permit the filing of a complaint if the district attorney refuses). Wisconsin case law, including State v. La Pean, State v. Kenyon, State v. Comstock, and State v. Lloyd, has consistently recognized the inherent and statutory power of trial courts to refuse to accept pleas, and plea agreements, that do not serve the public interest, and to approve or disapprove amendments to charges. Therefore, the majority's decision is not a novel departure from past cases or a new balance of power, but rather upholds the well-established allocation of powers and duties.
Analysis:
This case significantly reinforces the Wisconsin circuit courts' independent authority to review and reject plea agreements, particularly those involving charge reductions, based on a broad "public interest" standard. It clarifies that this judicial oversight does not usurp prosecutorial discretion but acts as a check and balance once judicial jurisdiction is invoked. The decision also validates the consideration of law enforcement's views as a factor, distinguishing it from post-plea agreement breaches that undermine accepted deals. Future cases will likely see circuit courts more actively scrutinizing plea deals for public interest considerations, potentially leading to more rejections or requiring prosecutors to articulate more robust public interest justifications for negotiated outcomes. Furthermore, the remand regarding the judge's status as an intervenor-respondent highlights the judiciary's sensitivity to maintaining impartiality even while asserting its review powers.
