Other jurisdictions have commented on the distinctions between the various types of agreements between the State and a defendant. For example, in State v. Howe, 2 Neb.App. 766, 771, 514 N.W.2d 356, 361 (1994), the Nebraska Court of Appeals pointed out the " difference between a plea bargain, a statutory immunity agreement, and other bargains that are neither plea bargains nor statutory immunity agreements." A " pure plea bargain agreement" involves " a suspect who has been apprehended for allegedly committing a crime and, rather than face the prospects of an extended trial and a punishment of undetermined severity if convicted, decides to plead guilty to charges mutually acceptable to him and the prosecutor."
The district court found that the State had offered a plea agreement and that Wacker had not pleaded to anything. Citing to State v. Howe, 2 Neb. App. 766, 514 N.W.2d 356 (1994), the court found that the State's offer was purely for a plea to a lesser charge. The court found, however, that Wacker's confession was made as the result of a plea offer and suppressed the statements.
Copple, 224 Neb. at 688, 401 N.W.2d at 153, quoting Rowe v. Griffin, 676 F.2d 524 (11th Cir. 1982). The Court of Appeals labeled a similar agreement a "cooperation agreement" in State v. Howe, 2 Neb. App. 766, 773, 514 N.W.2d 356, 362 (1994). It noted that other courts have recognized the enforceability of such agreements, see United States v. Minnesota Min. Mfg. Co., 551 F.2d 1106 (8th Cir. 1977), and it concluded that a cooperation agreement is enforceable on equitable grounds if (1) the agreement was made, (2) the defendant has performed whatever the defendant promised to perform, and (3) in performing, the defendant acted to his or her detriment or prejudice.
We conclude, therefore, that when the defendant has performed as required by a cooperation agreement and, in performing, has acted to his or her detriment or prejudice, the cooperation agreement is enforceable in the same manner as a plea agreement. See United States v. Carrillo, 709 F.2d 35, 36 (9th Cir. 1983); State v. Howe, 514 N.W.2d 356, 362 (Neb. Ct. App. 1994); see also State v. Lummus, 449 N.W.2d 95, 100 (Iowa App. 1989) (enforcing State's agreement not to prosecute in exchange for the defendant providing information about certain thefts because the defendant had detrimentally relied on the State's promise); State v. Sturgill, 469 S.E.2d 557, 562 (N.C. Ct. App. 1996) (holding agreements not to prosecute in return for a defendant's confession "deserve the same scrutiny under contract and due process principles as promises made in the context of plea bargains"). We turn now to an analysis of the present case in the context of the defendant's ineffective-assistance-of-counsel claim.
("A 'pure plea bargain agreement' involves '"a suspect who has been apprehended for allegedly committing a crime and, rather than face the prospects of an extended trial and a punishment of undetermined severity if convicted, decides to plead guilty to charges mutually acceptable to him and the prosecutor."'" (quoting State v. Howe, 2 Neb.App. 766, 772, 514 N.W.2d 356, 361 (1994), quoting in turn United States v. Minnesota Min. & Mfg. Co., 551 F.2d 1106, 1111-12 (8th Cir. 1977))); and Custer v. State, 86 Md.App. 196, 199, 586 A.2d 51, 53 (1991) ("Traditionally, a 'plea bargain' or 'plea agreement' contemplates a conditional plea of guilty … to one or more pending charges." (quoting Gray v. State, 38 Md.App. 343, 356, 380 A.2d 1071 (1977))).
Parties' Reasonable Expectations. [7,8] In State v. Howe, 2 Neb. App 766, 778, 514 N.W.2d 356, 365 (1994), we stated: "`A plea bargain is a contract, the terms of which necessarily must be interpreted in light of the parties' reasonable expectations.
We note that both Miceli and his counsel testified to their understanding of the agreement, but their understanding is not proof of the terms of the agreement, and their understanding appears to be unreasonable in the light of the documentary evidence. Miceli argues that once an agreement is shown, the government bears the burden of establishing a breach by the defendant, and he relies upon State v. Howe, 2 Neb. App. 766, 514 N.W.2d 356 (1994). This statement implies that the ordinary rules on contract law control the enforcement of an agreement between a prosecutor and an accused.
In our view, such conclusion throws aside any number of basic contractual principles that logically are applicable, given that plea agreements are contracts. See State v. Howe, 2 Neb. App. 766, 514 N.W.2d 356 (1994) (finding that plea bargain is contract). One such basic principle which the Wills decision would obviously negate is that a court is not free to rewrite a contract or to speculate as to terms of the contract which the parties have not seen fit to include.