“You don’t negotiate the sentence with the judge.”

Judge Eugene Harrington read that quote from Darryl Christensen’s former defense attorney during his ruling June 19 where Harrington ruled on a motion seeking to vacate Christensen’s Nov. 30, 2015 guilty plea to five counts of second-degree sexual assault by correctional staff. Harrington denied the motion and Christensen’s attorney has filed an appeal of Harrington’s ruling with the Court of Appeals.

In a 15-minute ruling conducted by telephone from Harrington’s courtroom in Shell Lake, the judge, who passed the sentence Feb. 1, 2016, explained the case as well as his reasons for denying the motion.

The quote about the judge’s role in sentence encapsulates the crux of the issue. Christensen’s attorney cited a 2004 case, State of Wisconsin vs. Hampton, which in essence required that the trial court advise a defendant that the court is not bound by the plea agreement and to ascertain the defendant’s understanding of that warning as the basis of the motion to vacate the guilty plea.

Christensen is currently serving a 30-year sentence. He pleaded guilty to having sex with five inmates of the Polk County Jail, where he worked as a jailer. A Department of Justice investigation into allegations against Christensen concluded that over a three year period he had groped, assaulted and had sexual intercourse with five victims in areas of the jail not covered by security cameras. At his sentencing, the defense and prosecution presented a plea agreement where Christensen would serve eight and a half years in prison.

Harrington explained that the maximum sentence he could have imposed was 40 years per count and a total fine of $100,000. 

“There is no doubt that court did not personally advise the defendant that the court was not bound by the plea arrangement. That is conceded,” Harrington said.

The judge said that he believed it was “important to revisit the conclusion of Hampton. The Supreme Court concluded in Hampton ‘today we have affirmed that where the court is aware of a plea agreement the court must advise the defendant personally that the court is not bound by the terms of that agreement and ascertain that the defendant understands this information.’”

Harrington outlined the ways that Christensen was informed that the judge was not bound to the plea agreement.

The 2016 plea hearing started with the judge addressing the defendant about the plea agreement. Christensen was asked what his understanding was of the plea agreement. His response was “plead guilty to all five counts.” 

“It is significant the defendant had the opportunity to tell me what he thought the maximum of eight and a half years was and he did not,” Harrington said.

Harrington cited the plea questionnaire that said at sentencing both parties will recommend eight and a half years of initial confinement in prison plus lots of extended supervision. There was language about an agreement that Christensen not go to jail and his bail not be revoked.

“The record is clear that when I took his plea, I deviated from that agreement immediately. I remanded Mr. Christensen to jail,” Harrington said. 

“The agreement was that both party’s lawyers would recommend eight and half years. The word ‘recommend’ presupposes that a judge is not bound by any such agreement. Its insertion suggests the plea agreement was not binding on the court,” Harrington said.

Harrington cited testimony given May 28 by Aaron Nelson, Christensen’s defense attorney at the time. Nelson testified about his usual practice of reading the recommendations to his client. Nelson would check off the items as he read them. He could not specifically remember his conversation with Christensen, but he outlined the process he would follow and said he probably did tell the defendant that the judge was not bound by the plea agreement.

Christensen’s testimony at the hearing was the opposite.

Harrington concluded that Nelson informed Christensen that the court was not bound by the plea agreement.

“Christensen was informed, albeit not by the judge, he was informed by his counsel and I am satisfied that he understood,” Harrington concluded before denying the motion.

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