By Gretchen Schuldt
A woman convicted of child abuse and neglect will be sentenced anew because Lafayette County District Attorney Jenna Gill breached the plea agreement reached with her, under a state Court of Appeals ruling.
In addition, Jamie Lee Weigel's lawyer, Peter A. Bartelt, "provided ineffective assistance in not objecting to the state's substantial material and substantial breach of the plea agreement," District IV Appellate Judge Jennifer E. Nashold wrote for the three-judge panel. She was joined in the opinion by Appellate Judges JoAnne F. Kloppenburg and Rachel A. Graham.
Weigel was charged with two counts of child abuse and two counts of chronic child neglect in connection with the care of her two young children. Her partner, the children's father, also was charged.
Weigel reached a plea deal under which the state agreed to recommend a sentence of no more than 20 years, including both prison and extended supervision time. As part of the deal, Weigel pleaded guilty to one count of child abuse resulting in great bodily harm and one count of chronic child neglect causing bodily harm.
The other two counts were to be dismissed but read in at sentencing.
When the children's father was sentenced to 20 years in prison and five years of probation, Lafayette County Circuit Judge Duane M. Jorgenson "appeared to assign greater culpability to Weigel, remarking that Weigel’s conduct was worse than the father’s," Nashold wrote. "Thus, both the defense and the State assumed it was unlikely that Weigel would receive a lesser sentence than the father received."
A Department of Corrections pre-sentence investigation recommended a sentence of 14 years in prison and six years of extended supervision. Bartelt submitted a sentencing memo based on an alternative PSI. The memo recommended 10 years in prison, 10 years of extended supervision, and five years of probation, for a total sentence of 25 years.
At the sentencing hearing, Gill said the state's recommendation was for 14 years in prison and six years of extended supervision, but then talked about the sentencing memo and said, "So, there’s not a lot that we’re arguing about today. Both parties agree that 25 years in total is appropriate. The only issue then is the amount of initial incarceration."
Bartelt did not object to the statement. He said later that he recommended a longer than the agreed-upon sentence because he believed the judge would impose a sentence at least as long as the one handed to Weigel's partner.
Jorgenson sentenced Weigel to 20 years in prison and 10 years of extended supervision. Weigel's new lawyer, Cary E Bloodworth, filed post-conviction motions alleging breach of the plea agreement and ineffective assistance by Bartelt. Jorgenson denied them and Weigel appealed.
Gill's explicit recommendation for a 25-year sentence at best was an "end run" around the plea agreement, Nashold wrote. "Such indirect undercutting of the plea agreement is ... prohibited."
The state argued on appeal that it never promised not to recommend a sentence that included probation. Instead, it said, the state agreed only to limit its recommendation for prison and extended supervision.
But, Nashold said, the state did not explicitly recommend probation.
"In any event, the State’s argument fares no better even if we assume that the State’s remarks, in full, were meant to convey its recommendation of a 20-year bifurcated sentence followed by a five-year term of probation," she wrote.
Rather, the panel agreed with Weigel that “the [S]tate’s attempt to inject a technical definition of the word ‘sentence’ into the context of plea negotiations is misguided.”
"Here," Nashold said, "the record shows that both Weigel and the State construed the term 'sentence' broadly, to include any term of probation that might be imposed by the court. At the Machner hearing (a post-conviction hearing regarding the effectiveness of counsel), Weigel testified that she believed that 'everything would be capped at 20 years.' And at sentencing, the state itself used the term 'sentence' to refer to the combined bifurcated sentence and period of probation recommended by Weigel, describing that 'total' 'sentence' as '25 years.' ”
The panel rejected the state's argument that Bartelt's sentencing memo implicitly modified the plea agreement and Weigel was not deprived of the benefits of a bargained-for agreement.
"We agree with Weigel that her strategy in arguing for a 25-year total sentence does not diminish the significance of the state’s breach," Nashold said. She added: "We also agree with Weigel that – given the circuit court’s apparent view that she was more culpable than the father – it was particularly important that the state adhere to the twenty-year cap that it had agreed to, so as to counteract the effect of the father’s sentence."
Bartelt testified that he may not even have realized at the time that Gill breached the plea agreement, Nashold said.
"In any event, we agree with Weigel that counsel’s failure to object would constitute deficient performance even if that failure were based on strategic considerations," she wrote.
Weigel will be sentenced by a different judge.
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