¶16 In reviewing whether the circuit court properly denied the State's motion to revoke the diversion agreement, I must first interpret the agreement because the circuit court is bound by its terms. See State v. Barney, 213 Wis.2d 344, 358-59, 570 N.W.2d 731 (Ct. App. 1997) (interpreting diversion agreement's terms regarding revocation to determine whether the circuit court's revocation of the agreement was proper and stating that the circuit court is obligated to follow those terms).
This presents a question of law. State v. Barney, 213 Wis. 2d 344, 353, 570 N.W.2d 731 (Ct.App. 1997). ¶ 16. It is true that sentencing, as it is commonly understood, did not occur until after the trial court denied the motion for plea withdrawal, revoked the deferred prosecution agreement, and entered the judgment of conviction against Daley based on his underlying no contest plea.
¶ 14. In State v. Barney, 213 Wis.2d 344, 570 N.W.2d 731 (Ct.App. 1997), the circuit court accepted a diversion agreement similar to the one in this case. Several months after sentencing, the circuit court revoked the agreement, but did not consider alternatives to revocation as was required by the agreement.
In Wisconsin, a defendant will be permitted to withdraw his plea prior to sentencing if there is a "fair and just" reason for doing so, and the prosecution will not be "greatly prejudiced" by the withdrawal. State v. Barney, 213 Wis.2d 344, 570 N.W.2d 731, 735 (Wis.Ct.App. 1997). The state conceded at oral argument that it would not have been prejudiced by a withdrawal of Ward's guilty plea, so our inquiry turns solely on whether a fair and just reason exists for withdrawal under Wisconsin law. Wisconsin courts have "consistently articulated a liberal rule" in determining what constitutes a fair and just reason to withdraw a plea.
With respect to Opgenorth, although Ward makes the conclusory allegation that Opgenorth would not move to withdraw Ward's guilty plea, I cannot identify any grounds that would have justified such a motion. Wisconsin allows pleas to be withdrawn after sentencing only for "manifest injustice," Wisconsin v. Barney, 213 Wis. 2d 344, 353 (Ct.App. 1997), and I can see no such injustice in this case. There was no breach of the plea agreement, and thus Opgenorth's failure to bring any such breach to light was not erroneous. Although Ward faults Opgenorth for not making a statute-of-limitations argument, Ward's submissions on this point are too conclusory to warrant further discussion.
The higher burden of the manifest injustice standard is thus appropriate, since it is a deterrent to defendants testing the waters for possible punishments and acting out of disappointment in the eventual punishment imposed.State v. Barney , 213 Wis.2d 344, 354, 570 N.W.2d 731, 735 (Wis. Ct. App. 1997) (quotation marks omitted). See also State v. Daley , 292 Wis.2d 517, 527-28, 716 N.W.2d 146, 151 (Wis. Ct. App. 2006).
In a more recent case, the Wisconsin Court of Appeals concluded a guilty plea accepted by a trial court in connection with the implementation of a diversion agreement “constituted ‘sentencing’ for purposes of determining the standard to be applied in deciding [a] motion to withdraw [a] guilty plea.” State v. Barney, 213 Wis.2d 344, 570 N.W.2d 731, 735 (App.1997). I acknowledge some of the Wisconsin court's statements on the record during the proceeding were unclear. Although at one point the court stated “I'll find him guilty,” I conclude this statement is best understood as an explanation of what could happen at some future date if Olsen fails to comply with the requirements of the deferred judgment.
The Court entered the following order on this date: Defendant-appellant-petitioner, Sean M. Daley, has filed a petition for review. The State has filed a response that the court of appeals' decision in this case conflicts with binding precedent, State v. Barney, 213 Wis. 2d 344, 570 N.W.2d 731 (Ct.App. 1997). Having considered the petition for review and the State's response,
Id. , ¶¶3-5, 24-25. The circuit court in Terrill had justified its action by attempting to distinguish Comstock and State v. Barney , 213 Wis. 2d 344, 570 N.W.2d 731 (Ct. App. 1997), on the basis that it had not yet entered judgment at the time it reconsidered accepting the plea agreement. Terrill , 242 Wis. 2d 415, ¶23.
Engel has not been convicted of burglary, nor has the burglary charge been resolved, because of the deferral of judgment. See e.g. State v. Barney 570 N.W.2d 731 (Wis.Ct.App. 1997) (outlining breach of agreement where court agreed to defer judgment of conviction for sexual assault if defendant complied with conditions, and where breach resulted in entry of conviction and sentencing). Without the entry of judgment, Engel's guilty plea alone does not transform the charge into a conviction.