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State v. Asunto

Court of Appeals of Wisconsin, District II

August 8, 2017

State of Wisconsin, Plaintiff-Respondent,
v.
Derek Asunto, Defendant-Appellant.

         APPEAL from an order of the circuit court for Waukesha County Cir. Ct. No. 2011CF1166: JENNIFER DOROW, Judge. Affirmed.

          Before Kessler, Brash, and Dugan, JJ.

          KESSLER, J.

         ¶1 Derek Asunto appeals a non-final order of the circuit court denying his motion to enforce what he contends was an accepted plea agreement. Because the circuit court never actually accepted the plea agreement at issue, we affirm the circuit court.

         BACKGROUND

         ¶2 This case involves a relatively complicated set of facts involving multiple charges and multiple case numbers. On September 20, 2010, Asunto was charged with one count of disorderly conduct in Waukesha County Circuit Court Case Number 2010CM1929. Asunto was released on bond. On November 29, 2010, Asunto was charged with misdemeanor bail jumping, operating while intoxicated as a fourth offense (OWI 4th), operating with a prohibited alcohol content as a fourth offense (PAC 4th), and refusing to take a test for intoxication. These charges resulted in Waukesha County Circuit Court Case Numbers 2010CM2398 and 2010TR8886. On May 4, 2011, Asunto was charged with disorderly conduct, criminal damage to property, and two counts of misdemeanor bail jumping, resulting in Waukesha County Circuit Court Case Number 2011CM0883.

         ¶3 At a hearing on May 4, 2011, Asunto's counsel told the circuit court that with regard to case No. 2010CM2398, Asunto planned to "admit on the record that his refusal [to submit to intoxication testing] was improper, ... and then he's going to enter a plea today to bail jumping in that case." Counsel told the court that with regard to case No. 2011CM0883, Asunto would plead guilty to criminal damage to property. The State and Asunto agreed that "nothings going to happen with the OWI or PAC fourth today in 10CM2398, but it is the Defendant's intention on the date that we select for sentencing on the other matters to enter his plea and go to sentencing on that case as well." The remaining charges would be dismissed and read in, but the parties agreed to hold open those charges until the OWI and PAC charges were resolved. The court accepted Asunto's admission that his refusal was improper and his guilty pleas to criminal damage to property and one count of disorderly conduct.

         ¶4 On May 25, 2011, the circuit court held a hearing to resolve the remaining charges. However, before the court conducted a colloquy with Asunto as to his pleas to OWI 4th and PAC 4th, and before the court dismissed any of the other charges, the State informed the court that it believed Asunto's record contained another OWI-related conviction in Michigan. The State told the court its discovery "might make this a fifth offense [OWI]" which would "change ... many things." The State asked for an adjournment to look into the matter. The court granted the adjournment.

         ¶5 On July 1, 2011, the State filed a motion to amend the criminal complaint to change the OWI 4th charge to OWI 5th. The motion stated that Asunto was convicted of operating while intoxicated in Michigan on October 25, 2000, and that the conviction "had not been considered when the charges for [Asunto's] present case was charged." Asunto opposed the motion, arguing that the circuit court already accepted the parties' plea agreement and was bound by Asunto's plan to plead to OWI 4th.

         ¶6 The circuit court held a hearing on the State's motion. In an oral ruling, the court granted the State's motion to amend the OWI 4th charge to OWI 5th, noting that it never actually accepted Asunto's plea to OWI 4th. The court explained that it accepted Asunto's pleas to bail jumping and criminal damage to property, but that it had not yet accepted Asunto's plea to OWI 4th, nor were the remaining charges dismissed at that point. Specifically, the court said:

The first issue the Court sees that came to light is an argument really by the Defense on whether or not this Court accepted the plea agreement in this case, and therefore, that everybody should be bound by the O.W.I. fourth charge and not allow this to be amended to an O.W.I, fifth charge.
In this case, this Court took and accepted pleas from the Defendant on bail jumping, and I believe it was criminal damage to property, and specifically, a plea was not entered on the O.W.I, fourth that day.... I think the Defendant was [going] to be going somewhere, and we didn't want him taken into custody right away ... so the plea was never entered on that.
And the Court got the transcript from the May 25th hearing[.]... [A]nd I looked at that, and the Court never even got to the plea colloquy.
We had preliminary discussions between the Court, [and the parties], on what the plan was. It was a refresher of what was sort of intended to happen, and before the Court ever got to the plea colloquy ... [the State] noticed the issue of the Michigan conviction that [it] stated would very possibly make this a fifth offense instead of a fourth offense, and [it] asked that it be halted. And it was halted --the hearing. It wasn't a halt of the plea colloquy because that had not even begun yet.
... Even though the Defense stated in the briefs that the Court accepted the plea agreement, the Court doesn't see how it could possibly have really officially accepted the plea agreement when an absolutely key part of that agreement had never been pled to, and that's the O.W.I. fourth charge.
And I looked at ... the May 4th hearing ... and in looking at part of it here, [defense counsel] was stating that it was his understanding they were gonna admit to the refusal [to submit to intoxication testing] on that day ... so that if anything that they weren't expecting was needed by [the State], the ...

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