¶ 16 Like prosecutors, "investigating officers may not undercut [a plea bargain] by making inconsistent recommendations." State v. Matson, 2003 WI App 253, ¶ 25, 268 Wis. 2d 725, 739, 674 N.W.2d 51, 58. The police officer did not do that here.

Once a plea agreement has been reached and a plea made, a defendant's due process rights require the bargain be fulfilled. Williams, 249 Wis. 2d 492, ¶ 37; State v. Matson, 2003 WI App 253, ¶ 16, 268 Wis. 2d 725, 674 N.W.2d 51. For example, a defendant's plea must be made knowingly and voluntarily, see Santobello v. New York, 404 U.S. 257, 261-62 (1971), and the circuit court must follow specific statutory guidelines before accepting the plea.

Wis. Stat. § 757.19(2)(f) provides, "Any judge shall disqualify himself or herself from any civil or criminal action or proceeding. . . [w]hen a judge has a significant. . . personal interest in the outcome of the matter." Conger advances another argument for the circuit court's recusal as well: that the circuit court's consideration here of law enforcement's view of the plea was a violation of the rule set forth in State v. Matson, 2003 WI App 253, J 27, 268 Wis. 2d 725, 674 N.W.2d 51 (holding that a letter submitted to the court by the investigating detective recommending a sentence length constituted a breach of a plea agreement that had included a joint sentencing recommendation). When the State breaches a plea agreement, the defendant is entitled to withdraw the plea or to be resentenced before a different judge.

In Wisconsin, courts impute the actions of law enforcement agents to the district attorney's office in many contexts, including the execution of plea agreements. See State v. Matson, 268 Wis.2d 725, 739-40, 674 N.W.2d 51, 58. (Ct.App. 2003). Although the breach in Matson flowed in the other direction (the agent broke the prosecutor's promise), the court's general concerns about fairness and agency apply to Gilbertson's situation.

DISCUSSION ¶ 6 Stewart argues that Officers Jekanoski's and Justus's requests that the circuit court impose the maximum sentence amounted to a substantial and material breach of the plea agreement, pursuant to State v. Matson, 2003 WI App 253, 268 Wis.2d 725, 674 N.W.2d 51. As a remedy, Stewart asks that we reverse the circuit court's order denying his postconviction motion and remand this case for specific performance of the parties' agreed-upon plea bargain, namely, a new sentencing hearing, at which the State will recommend a global twenty-five-year sentence before a different judge.

{¶ 206} I find instructive the reasoning in State v. Matson (Wis.App.2003), 268 Wis.2d 725, 674 N.W.2d 51. Matson appealed from convictions for child abduction and burglary as a repeat offender and from an order denying his petition for postconviction relief, arguing that the investigating officer's letter addressed to the sentencing court requesting the maximum sentence undermined the plea agreement, which provided that the state and Matson would jointly recommend at sentencing a 10–year confinement with 10 years of extended supervision on one count and 15 years of consecutive probation on the second count.

The last issue is whether the State breached the plea agreement when Chief Wilkinson sent a letter to the court asking the court to impose a longer sentence than the sentence the State agreed to argue for in the plea agreement. The State has conceded that this was a breach of the plea agreement under State v. Matson, 2003 WI App 253, ¶ 27, 268 Wis. 2d 725, 674 N.W.2d 51, and we agree. Because counsel did not object to the letter at the sentencing hearing, the issue arises in the context of ineffective assistance of counsel.

However, waiver is the intentional relinquishment of a known right. State v. Matson, 2003 WI App 253, ¶ 41, 268 Wis. 2d 725, 674 N.W.2d 51. We indulge in every reasonable presumption against waiver of a constitutional right.

Id. (citing Williams, 249 Wis.2d 492, ¶ 37, 637 N.W.2d 733; State v. Matson, 2003 WI App 253, ¶ 16, 268 Wis.2d 725, 674 N.W.2d 51). “It is well established, however, that the sentencing court is not in any way bound by or controlled by a plea agreement between the defendant and the state.”

We review the circuit court's factual findings under a clearly erroneous standard. State v. Williams, 2002 WI 1, ¶5, 249 Wis.2d 492, 637 N.W.2d 733; State v. Matson, 2003 WI.App. 253, ¶15, 268 Wis.2d 725, 674 NW.2d 51 ("The terms of a plea agreement and the historical facts of the State's conduct that allegedly constitute a breach of a plea agreement are questions of fact," which must be accepted unless clearly erroneous.).