In a recent unpublished opinion, the Wisconsin Supreme Court reminds us of the State’s right to use uncharged and unproven conduct in their sentencing arguments. The opinion highlights the need for defense attorneys to: 1. Be precise when negotiating a plea bargain. A plea bargain is, after all, an extremely important contractual arrangement between a defendant and the government. 2. Anticipate and be ready to counter all of the State’s arguments.
In the recent opinion, the State agreed to dismiss a number of the charges the defendant was facing in return for a plea. There was no agreement as to whether the defendant acknowledged his culpability as to the dismissed charges. The court used the conduct of the dismissed charges to formulate a stiff sentence.
In negotiating a plea bargain, it is well within the defense’s right to ask that uncharged or unproven conduct not be argued by the State as an aggravating factor at sentencing. Further, the defense may ask for an agreement from the State that the conduct was groundless or unreliable and should not be used by the court in fashioning a proper sentence.
A plea bargain may be the most important contract a person enters into in their entire lives. Defense attorneys must pay attention to the details involved in these contracts.
 State v. Frey, 337 Wis. 2d 429.