MADISON - A state appeals court Thursday threw out the five-year prison sentence a former Stoughton man received in 2014 in connection with a New Glarus home burglary that netted $153,000 and several guns.
District IV Court of Appeals ordered resentencing for William J. Wilke because his attorney failed to adequately represent him. The appeals court concluded that neither Wilke's attorney nor District Attorney Gary Luhman told Circuit Judge Thomas Vale that the plea agreement recommended Wilke's burglary sentence be imposed concurrent to the revocation sentence he already was serving.
"(C)ounsel's failure to object to the State's breach resulted in Wilke being sentenced without the bargained-for benefit of having the parties present a joint recommendation for a concurrent sentence. Accordingly, we reverse the sentencing portion of the judgment of conviction ... and remand with directions that Wilke be resentenced before a different judge," according to the unsigned eight-page opinion.
According to court records:
Wilke, Justin Wenger of Monticello, and Ryan J. Coyle of New Glarus broke into a New Glarus home of Coyle's mother's boyfriend and removed an 800-pound safe that contained 12 firearms, ammunition and $153,000 in cash.
Wilke was arrested after law enforcement used multiple confidential informants to tie him to the burglary.
He was charged with multiple counts, including armed burglary. At the time Wilke was serving a three-year sentence for a related probation violation.
Wilke entered into a plea agreement to reduced charges and a state recommendation to a maximum of five years in prison to be served concurrent to any existing sentence and probation.
At sentencing, Wilke's attorney, Robert Howard III, sought a three-year sentence plus probation. He did not mention the recommendation for concurrent time or clarify that the plea agreement called for the burglary sentence to run concurrent to any other sentence.
Vale imposed a five-year sentence, and Wilke got a new attorney and appealed.
The District IV Court rejected all the state's arguments to preserve the sentence, including Vale saying at a post-conviction hearing that he would have made the sentence consecutive instead of concurrent regardless of the joint recommendation.
The appeals court noted the state had conceded prejudice against the defendant is presumed when the plea agreement is breached.
"We conclude that the State's failure to make a recommendation for a concurrent sentence as the State had promised to do constituted an actionable breach of the plea agreement. It follows that counsel (Robert Howard) performed deficiently by failing to object to the breach," according to the opinion.
Calls to Wilke's appeals attorney, Gina Bosben, and Luhman were not returned by deadline.
Wilke, who has felony convictions dating from 1997, is currently incarcerated in the New Lisbon Correctional Institution.
Coyle pleaded guilty to burglary in January 2015 and was sentenced three months later to two years in prison and four years extended supervision. Wenger was sentenced in October 2014 to five years in prison and three years extended supervision.
District IV Court of Appeals ordered resentencing for William J. Wilke because his attorney failed to adequately represent him. The appeals court concluded that neither Wilke's attorney nor District Attorney Gary Luhman told Circuit Judge Thomas Vale that the plea agreement recommended Wilke's burglary sentence be imposed concurrent to the revocation sentence he already was serving.
"(C)ounsel's failure to object to the State's breach resulted in Wilke being sentenced without the bargained-for benefit of having the parties present a joint recommendation for a concurrent sentence. Accordingly, we reverse the sentencing portion of the judgment of conviction ... and remand with directions that Wilke be resentenced before a different judge," according to the unsigned eight-page opinion.
According to court records:
Wilke, Justin Wenger of Monticello, and Ryan J. Coyle of New Glarus broke into a New Glarus home of Coyle's mother's boyfriend and removed an 800-pound safe that contained 12 firearms, ammunition and $153,000 in cash.
Wilke was arrested after law enforcement used multiple confidential informants to tie him to the burglary.
He was charged with multiple counts, including armed burglary. At the time Wilke was serving a three-year sentence for a related probation violation.
Wilke entered into a plea agreement to reduced charges and a state recommendation to a maximum of five years in prison to be served concurrent to any existing sentence and probation.
At sentencing, Wilke's attorney, Robert Howard III, sought a three-year sentence plus probation. He did not mention the recommendation for concurrent time or clarify that the plea agreement called for the burglary sentence to run concurrent to any other sentence.
Vale imposed a five-year sentence, and Wilke got a new attorney and appealed.
The District IV Court rejected all the state's arguments to preserve the sentence, including Vale saying at a post-conviction hearing that he would have made the sentence consecutive instead of concurrent regardless of the joint recommendation.
The appeals court noted the state had conceded prejudice against the defendant is presumed when the plea agreement is breached.
"We conclude that the State's failure to make a recommendation for a concurrent sentence as the State had promised to do constituted an actionable breach of the plea agreement. It follows that counsel (Robert Howard) performed deficiently by failing to object to the breach," according to the opinion.
Calls to Wilke's appeals attorney, Gina Bosben, and Luhman were not returned by deadline.
Wilke, who has felony convictions dating from 1997, is currently incarcerated in the New Lisbon Correctional Institution.
Coyle pleaded guilty to burglary in January 2015 and was sentenced three months later to two years in prison and four years extended supervision. Wenger was sentenced in October 2014 to five years in prison and three years extended supervision.