State v. Christian R. Colon, 2010AP839-CR, District 1, 4/19/11
court of appeals decision (not recommended for publication); for Colon: Amelia L. Bizzaro; case activity
Colon’s refusal to testify against codefendant Rivera constituted a substantial and material breach of his plea bargain, such that the State was freed from restrictions on its allocution, ¶¶9-16.
The sheriff placed Colon in a cell with Rivera the night before Colon was to testify, in violation of an order to keep the pair separate, not to say common sense. Although Colon subsequently expressed safety concerns for his family, he never asserted “anything definitively pointing to a threat made by Rivera,” the absence of which dooms his equitable argument (essentially: the State itself caused the breach by putting Colon in harm’s way, and is therefore estopped from profiting from its wrongdoing).
¶16 Colon’s argument that his due process rights were violated by the State’s withdrawal from the agreement is also without merit. “The supreme court stated … that the constitutional due process requirements of ‘decency and fairness’ are satisfied if the party seeking to vacate a plea agreement establishes that there is a material and substantial breach of the agreement.” Toliver, 187 Wis. 2d at 357 (citation omitted). The language of the agreement is clear that a refusal to testify constitutes a material breach and that the sole authority to make such a determination belongs to the State. Colon affirmed that he reviewed the terms of the agreement with his counsel prior to accepting it. The record supports nothing more than a conclusion that Colon changed his mind about testifying against Rivera and therefore breached the plea agreement. That Rivera may have had the opportunity to threaten Colon is not the same as actually threatening Colon. No evidence of a threat exists in the record.[3]
The court goes on to say that the breach – refusal to testify – was so obviously material that a hearing on whether to enforce the plea bargain terms wasn’t necessary. In effect, the State was merely enforcing the agreement’s sanction, rather than seeking release from the agreement, ¶¶17-18, citing Toliver, 187 Wis. 2d at 358. Granted, the court faithfully follows Toliver, a slight quibble follows. Isn’t it more that the breach is factually undisputed than that the State seeks to enforce the sanction; that the undisputed nature of the breach makes a hearing unnecessary? In other words, had Colon made a colorable claim of coercion by Rivera, and attributable to the State’s misfeasance, wouldn’t he have been entitled to a hearing to determine whether the sanction should be enforced? In any event, the general rule is that an evidentiary hearing is necessary before the State may be released from its obligations under a plea agreement because of an alleged breach by the defendant, State v. Rivest, 106 Wis. 2d 406, 414, 316 N.W.2d 395 (1982).
It follows that trial counsel wasn’t ineffective for failing to move for a Rivest hearing: because no evidence exists as to any threats made by Rivera, such a request would have been futile, ¶¶19-22.
