State v. Poole
In State v. Poole, 131 Wis. 2d 359, 389 N.W.2d 40 (Ct. App. 1986), new information about the defendant came to light after the plea and before sentencing.
The prosecutor said her recommendation was made "before we knew of the other instances. But that is our agreement." Id. at 360.
The court held that the "state's use of qualified or negative language in making the sentence recommendation" breached the agreement. Id. at 364.
In State v. Poole, the Court discussed the problem with a prosecutor making negative comments at sentencing based on information acquired after the plea agreement.
In that case, the prosecutor had agreed to recommend a fine for a burglary. See id. at 360.
At sentencing, the prosecutor stood by that recommendation, but also pointed out that she was now aware of new information-that the defendant's probation was revoked in a separate case-but the agreement was entered into "before we knew of the other instances." See id.
The Poole court cited several cases from other jurisdictions as part of its analysis and then wrote:
A comment which implies reservations about the recommendation 'taints the sentencing process' and breaches the agreement.
We conclude that a prosecutor may not render less than a neutral recitation of the terms of the plea agreement. The recommendation in the case at hand fell below that standard. The prosecutor's comments implied that circumstances had changed since the plea bargain, and that had the state known of the other instances of defendant's misconduct, they would not have made the agreement they did. (Id. at 364.)
Poole indicates that while the prosecutor may inform the court about negative information acquired about the defendant after the plea agreement, if relevant to sentencing, the prosecutor may not imply that he or she has subsequently changed his or her mind about the plea.