My CaseLaw Express workflow hasn’t changed in probably fifteen years. When I get the weekly email, I save the criminal, mental health, parental rights, and any other interesting-looking cases to my Pocket account. (That workflow became less optimal when the links in the weekly email switched from web versions of the decisions to PDF versions. Obviously the links still saved, but the content became invisible to Pocket.) So the news that Mozilla is shutting down Pocket is very disappointing. I’m not sure what I’m going to do, although, just like my Instapaper account filled with news articles, it’s not as if I was going to actually cut into my backlog any time soon.
This post isn’t about any of that. It’s about two Court of Appeals decisions released on May 20, 2025, that I found surprisingly interesting and want to write about. As On Point noted, both are criminal defense wins out of Barron County. Every criminal defense win is notable, especially on appeal, and two out of the same small county in the same week would be notable by itself.
This post isn’t about that. It’s about the two cases. The first is State v. Donaven C. Sprague (2022-AP-876). In the case,
Pursuant to a plea agreement, Sprague agreed to plead guilty to the single charge. In exchange, the State agreed to cap its sentencing recommendation at 10-years’ imprisonment, consisting of 5 years of initial confinement followed by 5 years of extended supervision. Sprague’s trial counsel remained free to argue as to a sentencing recommendation.
But then at sentencing,
Placing emphasis on the seriousness of the offense and protection of the public factors, the State concluded its sentencing argument by noting the PSI’s recommended sentence and then stating that “given the aggravated nature of this case and the position of trust that Mr. Sprague was in, he falls on the upper end of that, of the 16 years confinement with four years extended supervision, and that’s the recommendation that I think is appropriate for him under the circumstances.”
This is what the criminal defense bar refers to as “such bullshit,” and observers may wonder how the fuck this could ever happen. I always tell my clients that my goal is to be the most prepared person in the courtroom and the most familiar with the case. Sometimes that goal is easier to achieve than it should be. The prosecutor in the courtroom for a given hearing isn’t always the main prosecutor handling the case, and even if it is that doesn’t guarantee that the prosecutor is actually familiar with their file, or even the content of their own plea agreement. Last month during a sentencing hearing I had a prosecutor who negotiated our plea agreement whisper to me asking what the agreement was while the case was being called.
When Mr. Sprague’s attorney corrected the prosecutor about the plea agreement, the prosecutor replied, “Yeah, that was. That is correct. I would stand with the recommendation of ten years, five years in, five years out,” and when the judge confirmed the terms of the agreement, the prosecutor replied, “Yes, it is. That was in my letter. My apologies.”
The judge called a recess to allow Mr. Sprague and his defense attorney to discuss
whether Sprague wanted to withdraw his plea “or some other option in between,” whether the State’s comments “were so out of bounds” that Sprague could not get a fair sentencing, and whether Sprague felt comfortable continuing with the sentencing in light of the State’s correction of its error.
Mr. Sprague decided to proceed with sentencing, asking for 3 years of initial confinement and 7 years of extended supervision. Instead the judge gave him 10 and 5. Note that in Wisconsin the judge always has the discretion to impose up to the maximum sentence for the offenses to which the defendant is convicted. The parties’ recommendations for the sentence are not binding. The upshot of this is that there are effectively two things that a defendant and the prosecutor can negotiate: the charges to which a defendant will plead guilty and the sentence that the prosecutor will recommend. While some counties in Wisconsin may have a strong tradition of negotiating joint recommendations that judges are expected to approve without much risk, under the law the only method the parties have of limiting the court’s sentencing discretion is in choosing the specific charges for which the defendant is being convicted, and the court even has some limited, though rarely exercised, discretion to reject plea agreements that the court believes to be contrary to public policy.
Anyway,
On appeal, Sprague argues that his trial counsel was ineffective by failing to advise Sprague that the State had inadequately cured its material and substantial breach of the parties’ plea agreement and by failing to advise Sprague that he was entitled to resentencing before a different judge.
And the Court of Appeals agreed! The State first tried to argue that the prosecutor’s eventual acknowledgement of the correct recommendation and apology were sufficient to cure the breach of the plea agreement. The case law on how robust a prosecutor’s advocacy for a negotiated sentence recommendation must be is not great, but the Court of Appeals decided that this discrepancy was too great and the prosecutor’s “cure” too little.
The State’s correction of its initial confinement recommendation from 16 years to 5 years and its subsequent apology as to the mistake were insufficient to remedy the “taint” on the sentencing hearing created by the State’s sentencing argument implying that Sprague deserved 16 years of initial confinement rather than 5 years—a raw reduction of 11 years, equating to a near 70 percent reduction. This change was significant, and it required explanation and argument by the State to clarify the basis for the 9 difference between the two recommendations.
Mr. Sprague testified at a post-conviction hearing (we call them Machner hearings in Wisconsin) that his attorney didn’t tell him during the mid-sentencing recess that he had the option of requesting a new sentencing hearing in front of a judge who hadn’t just heard the prosecutor make a pitch for 16 years of initial confinement. And his attorney from the sentencing hearing didn’t testify that he did. I often disagree with the State’s appellate arguments, obviously, but I’m affirmatively disappointed with one of the State’s arguments in this one:
The State argues that Sprague was not prejudiced by counsel’s failure to advise him that he was entitled to resentencing before a different judge because Sprague “had already considered switching judges and declined. Had he been asked again, he would have provided the same answer.” Among counsel’s errors alleged by Sprague in his postconviction motion, one related to counsel’s advice on judicial substitution at the beginning of Sprague’s case. Relying on the circuit court’s conclusion that Sprague chose to forgo substitution at the beginning of his case, the State appears to contend that Sprague’s decision on that issue means he would not have chosen to seek resentencing before a different judge as a remedy for the State’s material and substantial breach of the plea agreement.
When I was reading the State’s brief to the Court of Appeals, I was initially confused about why the State was arguing that Mr. Sprague did, in fact, discuss whether to ask for a different judge, since the defense’s brief was very clear that he did not. It turns out that the State was trying to argue that because Mr. Sprague and his attorney had decided at the very beginning of the case not to ask for a different judge, this meant that he would not have done so if his attorney had told him he had the option during his sentencing hearing. Shame on the State.
That Sprague chose to forgo substitution at the start of his criminal case is irrelevant to determining whether Sprague would have taken advantage of his entitlement to resentencing before a different judge. Sprague made his decision on judicial substitution long before the State materially and substantially breached the plea agreement and long before the circuit court judge heard the State’s tainted sentencing argument. Therefore, Sprague’s original decision on judicial substitution has no effect on the prejudice inquiry.
I wish the Court of Appeals had been a bit more forceful with its rejection of this argument, but beggers can’t be choosers. Unless the Wisconsin Attorney General asks the State Supreme Court to review the decision, Mr. Sprague will receive a new sentencing hearing in front of a judge who will only hear the negotiated sentence recommendation from the prosecutor this time.
This post isn’t actually about any of that, though. It’s about the fact that Mr. Sprague’s sentencing hearing took place on December 12, 2019. Ignoring any sentence credit he may have already accumulated before that date, Mr. Sprague has been serving a prison sentence in prison for the last five and a half years. Remember that the prosecutor had agreed to recommend five years of initial confinement. Mr. Sprague has already served more prison time than that, and it’s not as if he’s being resentenced next week.
This isn’t entirely the Court of Appeals’ fault. It turns out Mr. Sprague’s first appellate attorney filed a no-merit report; in other words, they couldn’t find any issue to raise and wanted permission from the court to withdraw from the appeal. Luckily, that attorney ended up going on parental leave and Mr. Sprague’s next attorney withdrew that report. Appeals take time, of course, especially when there needs to be testimony taken on these issues, and COVID happened during all of that in this case, but the briefs and transcripts and everything else in the record was submitted to the Court of Appeals on December 19, 2023. A decision from the Court of Appeals shortly thereafter would have preserved an opportunity for Mr. Sprague to be receive the sentence that the prosecutor had agreed to recommend. Instead, the seventeen-month wait for the decision means that Mr. Sprague has lost that opportunity. Come on, judges!
This post is much longer than I’d anticipated, so I’ll save my discussion of the second Barron County case for another day, but hopefully quicker than seventeen months.