State v. Patrick K. Tourville
876 N.W.2d 735, 2016 WI 17, 367 Wis. 2d 285 (2016)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A plea agreement that is silent on whether sentences will be concurrent or consecutive is not breached when the State recommends consecutive sentences, thereby precluding an ineffective assistance of counsel claim for failure to object. A sufficient factual basis for a guilty plea to party to the crime of felony theft exists when the defendant willingly aids others in the continued 'asportation' and concealment of stolen property, even if not involved in the initial taking.
Facts:
- Several men, not including Patrick Tourville, stole a gun safe containing firearms and other tools.
- The men subsequently contacted Patrick Tourville, informing him they possessed a safe and required a location to take it, as well as assistance in opening it.
- The men picked up Patrick Tourville from his residence and transported him and the stolen safe to his campsite at a resort.
- Patrick Tourville participated with the other men in opening the stolen safe.
- Patrick Tourville provided advice to the other men regarding where to dispose of the safe, which they ultimately discarded in a swamp along the side of the road.
- The men later compensated Patrick Tourville in cash for his assistance.
- Patrick Tourville and the State entered into a plea agreement.
- This plea agreement stipulated that 'The joint sentencing recommendation is to order a presentence investigation; the state will cap its recommendation at the high end of what the PSI orders,' but it remained silent regarding concurrent or consecutive sentences.
- A Presentence Investigation Report (PSI) was prepared for the court, which recommended a range of initial confinement and extended supervision for each charge but did not include any recommendation for concurrent or consecutive sentences.
Procedural Posture:
- The State of Wisconsin charged Patrick Tourville with seventeen criminal counts across four separate cases in Polk County Circuit Court (trial court/court of first instance).
- Patrick Tourville entered guilty pleas to felony theft as a party to a crime, felony bail jumping, burglary while armed with a dangerous weapon, and misdemeanor theft, all as a repeater, pursuant to a plea agreement.
- The Polk County Circuit Court, Judge Molly E. GaleWyrick presiding, accepted Tourville's guilty pleas and sentenced him to consecutive prison sentences totaling 26 years.
- Patrick Tourville filed a post-conviction motion with the circuit court, alleging ineffective assistance of counsel due to the State's alleged breach of the plea agreement and an insufficient factual basis for his guilty plea to party to the crime of felony theft.
- The circuit court denied Patrick Tourville's post-conviction motion.
- Patrick Tourville (appellant) appealed the circuit court's decision to the Wisconsin Court of Appeals, which affirmed the circuit court's judgment and order (appellee: State of Wisconsin).
- Patrick Tourville (petitioner) sought review of the Court of Appeals' decision from the Wisconsin Supreme Court.
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 prosecutor breach a plea agreement that caps the sentencing recommendation at the high end of a presentence investigation report (PSI) but is silent on concurrent or consecutive sentences, by recommending consecutive sentences? 2. If the prosecutor does not breach the plea agreement, is trial counsel's failure to object to a recommendation for consecutive sentences considered ineffective assistance of counsel? 3. Was there a sufficient factual basis for the circuit court to accept Patrick Tourville's guilty plea to party to the crime of felony theft where he did not 'take and carry away' the property but aided others in opening and disposing of a stolen safe?
Opinions:
Majority - Ann Walsh Bradley, J.
No, a prosecutor does not breach a plea agreement that caps the sentencing recommendation at the high end of a PSI but is silent on concurrent or consecutive sentences, by recommending consecutive sentences. Consequently, trial counsel's failure to object to such a recommendation is not considered ineffective assistance of counsel. Yes, there was a sufficient factual basis for the circuit court to accept Patrick Tourville's guilty plea to party to the crime of felony theft because he willingly aided others in the continued 'asportation' and concealment of stolen property. The Court determined that the plea agreement was silent on the issue of concurrent or consecutive sentences. Applying contract law principles, the Court reaffirmed that parties are only bound by the explicit terms of the agreement, and courts will not 'engraft these conditions into a fully integrated plea agreement' (citing State v. Bowers, United States v. Fentress, among others). Therefore, the State's recommendation for consecutive sentences did not constitute a breach of the plea agreement. Without a breach of the plea agreement, Tourville could not establish 'deficient performance' by his trial counsel under the Strickland v. Washington test for ineffective assistance of counsel, as there was no valid objection to be made. The Court explicitly declined to overrule Bowers. Regarding the factual basis for the guilty plea, the Court found it sufficient for Tourville's plea to party to the crime of felony theft. Although Tourville did not participate in the initial 'taking and carrying away' of the property, he willingly aided the other thieves in their continued efforts to carry away and conceal the safe and its contents. The Court cited State v. Marshall for the principle that aiding and abetting only requires a defendant to be a willing participant who undertakes some conduct that objectively aids another in the execution of a crime with the intent to provide such assistance. Further, referencing State v. Grady and Hawpetoss v. State, the Court clarified that 'asportation' (taking and carrying away) is a transaction that continues beyond the initial taking, and one can be guilty as a principal if they aid in the asportation or removal of stolen property. Tourville's actions, including taking the thieves to his campsite, helping to open the safe, advising on its disposal, and receiving payment, were sufficient to establish that he aided and abetted the ongoing felony theft.
Analysis:
This case significantly reinforces the strict interpretation of plea agreements in Wisconsin, placing the onus on defendants to explicitly negotiate and include all desired sentencing conditions, such as concurrent sentences, within the agreement. Its affirmation that silence in a plea agreement does not imply a commitment to concurrent sentencing effectively limits implied terms in plea bargaining. Furthermore, the decision broadens the scope of liability for 'party to the crime' felony theft by clarifying that aiding in the ongoing 'asportation' or concealment of stolen property, even post-initial taking, provides a sufficient factual basis for conviction. This may lead to an increased number of successful prosecutions against individuals who facilitate the aftermath of a theft.
