State v. Timothy Lester Troon, Jr.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 19, 2026
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP110-CR Cir. Ct. No. 2021CF949

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TIMOTHY LESTER TROON, JR.,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Rock
County: BARBARA W. McCRORY, Judge. Reversed and cause remanded with
directions.

Before Kloppenburg, Nashold, and Taylor, JJ.

¶1 TAYLOR, J. Timothy Lester Troon appeals a judgment of
conviction for operating while intoxicated as a fifth offense (“OWI-5th”) and an
order denying his postconviction motion. In that motion, Troon argued that the
No. 2024AP110-CR

circuit court erred in sua sponte vacating his first plea and judgment of conviction
based on a disagreement between the parties about the joint sentencing
recommendation that followed the court’s acceptance of his plea. We conclude
that the circuit court erred as a matter of law in vacating Troon’s first plea and
judgment of conviction. Therefore, we vacate Troon’s current conviction,
reinstate his first plea and judgment of conviction, and remand with directions for
further proceedings.

BACKGROUND

¶2 In September 2021, a Rock County deputy sheriff investigated a
report that a car was being driven erratically and had pulled over in a park and ride
lot. When the deputy encountered the driver of the car, eventually identified as
Troon, the driver was sleeping in the driver’s seat with the car turned off but still
warm to the deputy’s touch. After performing field sobriety tests and a
preliminary breath test that yielded a .226 breath alcohol concentration, Troon was
arrested and charged with OWI-5th, operating with a prohibited alcohol
concentration as a fifth offense, failure to install an ignition interlock device, and
operating a vehicle while revoked.

¶3 The parties reached a plea agreement, and in April 2022, a plea and
sentencing hearing occurred. At the hearing, the State was represented by a
substitute prosecutor because the assigned prosecutor, who had negotiated the plea
agreement, was unavailable. Defense counsel presented the circuit court with the
parties’ plea agreement and joint sentencing recommendation as follows: Troon
would plead guilty to the OWI-5th charge and the other charges would be
dismissed and read in for sentencing purposes; Troon would pay a $600 fine;
Troon’s driver’s license would be revoked for three years and, if reinstated, a

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three-year installation of an ignition interlock device on Troon’s vehicle would be
required; and Troon would serve three and one-half years of imprisonment
consisting of eighteen months of initial confinement and two years of extended
supervision. When the court inquired whether the proposed imprisonment
sentence was concurrent or consecutive, defense counsel responded, “Concurrent.”
When asked by the court if defense counsel correctly stated the terms of the plea
agreement, the substitute prosecutor indicated that he would rely on defense
counsel’s representation that the imprisonment sentence was concurrent and check
back with the assigned prosecutor regarding any issues “that would have to bring
it back, but I assume that was agreed to.”

¶4 The substitute prosecutor did dispute the two-year extended
supervision term, stating that he understood the agreed upon term to be three
years. Troon agreed with the three-year extended supervision term as part of the
parties’ joint sentencing recommendation. The circuit court proceeded to engage
in a proper plea colloquy with Troon, which included reviewing Troon’s plea
questionnaire, determining that a factual basis existed for Troon’s plea, and
determining that Troon knowingly, voluntarily, and intelligently entered his plea.
The court accepted Troon’s guilty plea, found him guilty of OWI-5th, and
dismissed and read in for sentencing purposes the three other charges.1

1
Like the circuit court in State v. Comstock, 168 Wis. 2d 915, 929-30, 485 N.W.2d 354
(1992), upon accepting Troon’s guilty plea, the court did not expressly order that a judgment of
conviction be entered against him. Neither party identifies this as an issue on appeal. Given that
jeopardy attaches when a court accepts an accused’s plea of guilty, we deem any omission in not
verbally ordering that a judgment of conviction be entered not relevant for purposes of this
appeal. Id. at 947.

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No. 2024AP110-CR

¶5 At sentencing, the circuit court adopted the parties’ joint sentencing
recommendation and ordered that Troon’s imprisonment sentence run concurrent
to any imprisonment sentence Troon was then serving.2

¶6 Several days after the plea and sentencing hearing, the assigned
prosecutor filed a letter with the circuit court that asserted that the parties had
never discussed, nor agreed, that Troon’s imprisonment sentence would be served
concurrently. The assigned prosecutor requested that the court hold a hearing to
address the issue.

¶7 In May 2022, the circuit court held the requested hearing (the “May
2022 hearing”). The assigned prosecutor asserted that: the settlement offer he
extended to defense counsel was silent on the consecutive or concurrent nature of
the imprisonment sentence; he had no knowledge that Troon was serving a
revocation prison sentence at the time of the offer; it was not the policy of his
office, nor his intent, to extend a settlement offer with a concurrent imprisonment
sentence on an OWI-5th conviction; there was no “meeting of the minds” on an
agreement for concurrent time; and, in the face of a dispute, “[i]t would have been
my intention to argue for consecutive time.”

¶8 Defense counsel responded to the assigned prosecutor’s statements
as follows: the assigned prosecutor and Troon had previously jointly

2
At the time of the State’s first plea offer and when the first plea was entered and
accepted by the court, Troon was serving an imprisonment sentence related to the revocation of
the extended supervision portion of his conviction for operating while intoxicated as a fourth
offense. Defense counsel asserted that Troon had been incarcerated and appeared by Zoom when
the assigned prosecutor and defense counsel had scheduled the first plea and sentencing hearing
with the court.

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No. 2024AP110-CR

recommended an imprisonment sentence in Troon’s OWI-4th case concurrent to
another revocation sentence;3 in other plea negotiations, the assigned prosecutor
had specified in the plea offer when the proposed sentence was consecutive to
other sentences; Troon was incarcerated during a prior hearing in this case when
the plea and sentencing hearing date was set and all parties, including the assigned
prosecutor, were present; and though the circuit court had inherent powers to
conduct a resentencing, defense counsel was unclear about the procedural grounds
for relief sought by the State. Defense counsel further argued that pursuant to
State v. Bowers, 2005 WI App 72, ¶16, 280 Wis. 2d 534, 696 N.W.2d 255, it
would not be a breach of the plea agreement for the State to argue for consecutive
time when the plea agreement itself was silent on the issue. The court took the
matter under advisement.

¶9 In July 2022, the circuit court held another hearing on the matter (the
“July 2022 hearing”). The court concluded that the concurrent or consecutive
nature of the jointly recommended imprisonment sentence “is an extremely
important part of a plea” and that there was no “meeting of the minds” on the issue
between the parties. As a result, the court vacated Troon’s plea and judgment of
conviction and scheduled the case for further proceedings.

¶10 A second plea and sentencing hearing occurred in February 2023.
The parties reached a similar plea agreement as previously presented, and Troon
pled guilty to OWI-5th and the remaining charges were dismissed and read in for
sentencing purposes. The parties jointly recommended that the circuit court
impose the same penalties as presented in the first plea and sentencing hearing,

3
See State v. Troon, Rock County Case No. 2015CF1135.

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No. 2024AP110-CR

and recommended that Troon serve eighteen months of initial confinement.
However, the State argued that the imprisonment term be served consecutively,
and that Troon serve three years of extended supervision. Troon argued that the
imprisonment term be served concurrently, and that he serve two years of
extended supervision.

¶11 The circuit court reviewed the same plea questionnaire with Troon
that he had previously submitted for the first plea hearing, conducted a plea
colloquy, accepted Troon’s guilty plea, and entered a judgment of conviction on
the OWI-5th charge. The other charges were dismissed and read in for sentencing
purposes. The court adopted the jointly recommended penalties and ordered a
concurrent four-year imprisonment term, consisting of two years of initial
confinement and two years of extended supervision.

¶12 Troon moved for postconviction relief, arguing that the circuit court
violated his right to be free from double jeopardy under the federal and state
constitutions when it sua sponte vacated his guilty plea and judgment of
conviction and reinstated the original charges. See U.S. CONST. amend. V; WIS.
CONST. art. 1, § 8(1). Troon requested that the court vacate the second plea and
judgment of conviction, reinstate his first plea and judgment of conviction, and
grant a resentencing with the benefit of what he asserted was the original joint
sentencing agreement to which the State agreed—eighteen months of initial
confinement and three years of extended supervision to run concurrent to any
sentence that Troon was then serving.

¶13 In January 2024, the circuit court held a hearing on Troon’s
postconviction motion (the “postconviction hearing”). The court denied the
motion. The court determined that it had not sua sponte vacated Troon’s first

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No. 2024AP110-CR

guilty plea because the parties understood that when they reconvened with the
court to address the assigned prosecutor’s letter, they were going to be addressing
the validity of Troon’s plea. The court concluded that its decision to vacate
Troon’s plea was proper because defense counsel breached the parties’ agreement
by withholding material information that the joint sentencing recommendation was
silent on whether the imprisonment term was concurrent or consecutive.

¶14 Troon appeals.

DISCUSSION

¶15 We identify the issue before us as whether the circuit court violated
Troon’s right to be free from double jeopardy when it vacated Troon’s first plea
and judgment of conviction entered in April 2022. The result of this vacatur was
the reinstatement of not just the charge to which Troon had pled guilty but the
reinstatement of the three other charges that were dismissed and read in for
sentencing purposes. We conclude that the court sua sponte vacated Troon’s first
plea contrary to State v. Comstock, 168 Wis. 2d 915, 953, 485 N.W.2d 354
(1992), thereby violating Troon’s right to be free from double jeopardy.
Accordingly, we vacate Troon’s second plea and judgment of conviction, reinstate
his first plea and judgment of conviction, and remand with directions for further
proceedings.

I. Standard of Review

¶16 The double jeopardy clauses of the United States and the Wisconsin
constitutions protect criminal defendants, in pertinent part, against a second
prosecution for the same offense after conviction and from “repeated attempts” by
the government, “with all its power and resources,” “to convict [a defendant] of an

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No. 2024AP110-CR

alleged offense.” Green v. United States, 355 U.S. 184, 187 (1957); see also U.S.
CONST. amend. V (“nor shall any person be subject for the same offen[s]e to be
twice put in jeopardy of life or limb”); WIS. CONST. art I, § 8(1) (“no person for
the same offense may be put twice in jeopardy of punishment”); State v. Lettice,
221 Wis. 2d 69, 79, 585 N.W.2d 171 (Ct. App. 1998) (The Wisconsin Constitution
provides the same protection against double jeopardy as the United States
Constitution.). Accordingly, once a valid plea has been accepted by the circuit
court, protection “against a second prosecution for the same offense after
conviction” attaches. Comstock, 168 Wis. 2d at 936-37. This protection also
extends to dismissed charges pursuant to a plea agreement. Id. at 950.

¶17 In Comstock, our supreme court exercised its superintending
authority and directed circuit courts to:

refrain from sua sponte vacating a guilty or no contest plea
after the circuit court validly accepted the plea by assuring
itself of the voluntariness of the plea and the factual basis
for the charges unless the circuit court finds that there was
fraud in procuring the plea or that a party intentionally
withheld from the circuit court material information which
would have induced the circuit court not to accept the plea.

Id. at 952-53. As indicated, the Comstock rule provides that there are exceptions
under which a circuit court may sua sponte vacate a plea without violating the
defendant’s right to be free from double jeopardy, including, as the State argues
here, when a party intentionally withholds material information from a court
which would have induced the court to decline to accept a plea.

¶18 Whether a defendant’s right to be free from double jeopardy has
been violated is a question of law that we review de novo. State v. Trawitzki,
2001 WI 77, ¶19, 244 Wis. 2d 523, 628 N.W.2d 801; State v. Anderson, 219
Wis. 2d 739, 746, 580 N.W.2d 329 (1998). Factual findings made by the circuit

8
No. 2024AP110-CR

court that are pertinent to the analysis are upheld unless clearly erroneous. State v.
Hill, 2000 WI App 259, ¶12, 240 Wis. 2d 1, 622 N.W.2d 34.

¶19 To begin, there is no dispute that Troon’s first guilty plea was
validly entered and properly accepted by the circuit court. Namely, the court
conducted a proper plea colloquy, determined that a factual basis existed for
Troon’s plea, concluded that Troon’s plea was made knowingly, voluntarily, and
intelligently, and expressly accepted Troon’s plea. Thereafter, the court found
Troon guilty of OWI-5th and dismissed and read in for sentencing purposes the
remaining felony count and the two misdemeanor counts. At the postconviction
hearing, the court specifically acknowledged that Troon’s plea was validly entered
and accepted by the court, which neither party disputed nor argues otherwise here.

¶20 Troon argues that pursuant to Comstock, jeopardy attached upon the
circuit court’s acceptance of Troon’s first guilty plea and his right to be free from
double jeopardy was violated because the court sua sponte vacated his first guilty
plea and no Comstock exception applies. The State argues that Comstock is
inapplicable because the court did not sua sponte vacate Troon’s plea. In the
alternative, the State argues that the court properly sua sponte vacated Troon’s
plea under Comstock because defense counsel intentionally withheld material
information from the court which would have induced the court not to accept the
plea.

¶21 In sum, we must determine here: (1) whether the circuit court sua
sponte vacated Troon’s plea; and, if so, (2) whether a Comstock exception applies,
such that Troon’s right to be from double jeopardy was not violated. For the
reasons that follow, we conclude that the court sua sponte vacated Troon’s first

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No. 2024AP110-CR

guilty plea and that no Comstock exception applies, such that Troon’s right to be
free from double jeopardy was violated.

¶22 Accordingly, we reverse.

II. The circuit court sua sponte vacated Troon’s plea.

¶23 As noted, a circuit court’s sua sponte vacatur of a defendant’s
validly entered and accepted plea is permitted under Comstock only if, as pertinent
here, a party intentionally withholds from the court material information which
would have induced the court not to accept the plea. Therefore, we first examine
whether the court sua sponte vacated Troon’s first plea. For the reasons that
follow, we conclude that the court did act sua sponte in vacating Troon’s first plea.

¶24 To begin, a circuit court acts sua sponte when it acts “‘on its own
motion,’” rather than “in response to a request by the parties.” Wisconsin Voter
All. v. Reynolds, 2023 WI App 66, ¶15 n.4, 410 Wis. 2d 335, 1 N.W.3d 748
(citation omitted). Here, a review of the record indicates that there was no request
by the State, in its letter, by motion, or in its oral argument at either the May or
July 2022 hearings, for the court to vacate Troon’s plea.

¶25 The April 2022 letter that the assigned prosecutor sent to the circuit

court following Troon’s plea and sentencing states, in pertinent part:

When I returned to the office today, I learned that
[substitute prosecutor] appeared and [defense counsel]
informed that we agreed to the sentence for this Operating
While Intoxicated 5th offense to run concurrently to the
Defendant’s previous sentence. We never discussed that. I
never agreed to that. I cannot recall ever agreeing to an
Operating While Intoxicated 5th offense to run
concurrently with any sentence.

Due to the incorrect information that [defense
counsel] gave to both [substitute prosecutor] and the Court,

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No. 2024AP110-CR

we did not have a meeting of the minds on this sentence. I
request that the court hold a hearing so that we can
address this. Per my notes, it appears that the Court had
put on the record that this can be addressed. (Emphasis
added.)

The State did not submit a motion or other filing to the court on this issue.

¶26 As indicated, the letter raises an issue only with Troon’s sentence.
There is no request in the letter that Troon’s plea should or needed to be vacated
for the circuit court to address the sentencing issue. Rather, the sole concern
raised by the State pertains to the representation by Troon’s counsel that the
jointly recommended imprisonment sentence was to be served concurrently to any
other imprisonment sentence. The letter requests that the court hold a hearing so
that “this” can be addressed, which we interpret as referring to the concurrent
nature of Troon’s sentence. The court eventually recognized as much during the
postconviction hearing when the court stated, “I’m looking at [the assigned
prosecutor’s] letter, and maybe I did jump it by vacating … because [the assigned
prosecutor] asked for the sentence being issued to be resolved.” We agree.

¶27 The transcripts of the May and July 2022 hearings that resulted from
the assigned prosecutor’s letter also reveal that the State did not argue that the plea
itself was invalid due to the dispute about the concurrent nature of Troon’s
imprisonment sentence. For example, the assigned prosecutor told the circuit
court during the May 2022 hearing that had he been present when the nature of the
imprisonment sentence arose, “[i]t would have been my intention to argue for
consecutive time.” When the court summarized the assigned prosecutor’s
argument by stating that “what I’m hearing you say [assigned prosecutor], is …
that … I should reopen the case because we didn’t have a meeting of the mind[s]
in terms of a plea,” the assigned prosecutor clarified “[s]pecifically on the …

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No. 2024AP110-CR

sentencing aspect of it” and that “I have no problem resentencing this.”4
(Emphasis added.) At the July 2022 hearing, the assigned prosecutor summarized
the dispute between the parties as whether Troon’s sentence should be concurrent
or consecutive or “whether we should resentence.” The assigned prosecutor’s
statements underscore that the State was not requesting that Troon’s first plea be
vacated but that the court address the sentencing issue.

¶28 The statements by the circuit court at the July 2022 and
postconviction hearings further support our conclusion. The court recognized that
had defense counsel indicated that the parties had not discussed the concurrent or
consecutive nature of the jointly recommended imprisonment sentence, the
substitute prosecutor could have asked: to adjourn the plea and sentencing hearing
so that the assigned prosecutor could address the issue when he returned to the
office; to adjourn the sentencing portion of the hearing; or for each party to argue
their respective positions, which the court suspected would have been the likely
outcome. None of these options necessitated or provided a sufficient legal basis
for the court to sua sponte vacate Troon’s validly offered and accepted plea.

4
In only one instance during the May and July 2022 hearings did the assigned prosecutor
suggest that Troon’s plea may have been inappropriate. In the May 2022 hearing, following the
circuit court’s comments that it needed to figure out the procedural posture of the case and
whether “we’re going to just reopen it,” the assigned prosecutor responded: “[I]t sounds to me
like there was never a meeting of the mind[s]; therefore, there was never an … appropriate
sentencing and apparently … possibly an appropriate plea.” Based on the context, we construe
the comment by the assigned prosecutor about the appropriateness of Troon’s plea as reflecting
the court’s prior comments about “reopening it,” rather than as an argument advanced by the
State.

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No. 2024AP110-CR

¶29 The State argues, on multiple grounds, that the circuit court did not
sua sponte vacate Troon’s first plea. We address, and reject, each argument in
turn.

¶30 First, the State represents that “[t]he [substitute] prosecutor told the
court at the plea hearing that it might need to revisit the plea if defense counsel’s
representation that the parties had agreed to jointly recommend a concurrent
sentence was incorrect.” This is inaccurate. The plea hearing transcript reveals
that the substitute prosecutor never mentioned having to revisit Troon’s plea in his
comments to the court. The entirety of the substitute prosecutor’s statement on the
issue at the first plea hearing was as follows:

Judge, this is [assigned prosecutor’s] case and he did not
specify concurrent or consecutive, but if [defense counsel]
is positive it’s concurrent, then I will rely on that and I will
just refer back to [assigned prosecutor] to confirm when he
gets back from vacation if there’s any issues that would
have to bring it back, but I assume that was agreed to.

As indicated, the substitute prosecutor raised the issue of the concurrent nature of
the jointly recommended imprisonment sentence only, which he stated he would
confirm with the assigned prosecutor. There is no mention of Troon’s plea, nor
any request that the court delay accepting Troon’s plea or condition the acceptance
of Troon’s plea on such confirmation.

¶31 Second, in support of its argument that no sua sponte vacatur
occurred, the State refers to the assigned prosecutor’s April 2022 letter to the
circuit court that “we did not have a meeting of the minds on this sentence. I
request that the court hold a hearing so that we can address this. Per my notes, it
appears that the Court had put on the record that this can be addressed.” The State
appears to argue that the letter represented a request for the court to vacate Troon’s

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No. 2024AP110-CR

plea on some unarticulated basis, and that the court correctly concluded that the
letter form of the request, as opposed to an actual motion, was sufficient to move
the court to do so. The State also suggests that the court had indicated on the
record that Troon’s plea could be revisited. We are unpersuaded.

¶32 Although we agree with the State that a circuit court may exercise its
discretion in considering a letter request as a motion, that argument misses the
mark here because the State never made a request, in any form, that the court
vacate Troon’s plea. There is nothing in the assigned prosecutor’s letter that could
be reasonably construed as a request for the court to vacate Troon’s validly
entered and accepted plea.

¶33 Moreover, to the extent that the State intends to argue that the circuit
court had agreed to revisit Troon’s plea pending the substitute prosecutor’s
verification of the joint sentencing recommendation, this suggestion is not
supported by the record. The plea hearing transcript reveals that the court did not
respond to the substitute prosecutor’s comments in any manner. Specifically, the
court did not verbally agree to the substitute prosecutor’s suggestion, condition the
acceptance of Troon’s plea on this ground, or indicate that a later dispute
regarding the jointly recommended imprisonment sentence might be the basis for
vacating Troon’s validly entered and accepted plea. To the extent that the court
found that it had imposed such a condition in accepting Troon’s plea as the court
stated in its written order vacating Troon’s plea and conviction, such a finding is
clearly erroneous and contrary to the record.

¶34 The State additionally fails to cite any supportive legal authority for
the proposition that a circuit court may conditionally accept a valid plea, pending
the State’s later confirmation of the terms of a joint sentencing recommendation,

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No. 2024AP110-CR

to which it had ultimately agreed at the plea and sentencing hearing. To be sure,
the court’s frustration about defense counsel’s apparent lack of candor in not
explicitly telling the court about the silence of the joint sentencing
recommendation on the concurrent or consecutive nature of the imprisonment term
is understandable. However, the substitute prosecutor acknowledged and stated to
the court that the plea offer did not specify the concurrent or consecutive nature of
the joint sentencing recommendation. “The staff of the prosecution is a unit and
each member must be presumed to know the commitments made by any other
member.” Santobello v. New York, 404 U.S. 257, 263 (1971) (Douglas, J.,
concurring). The substitute prosecutor’s acknowledgement that he lacked
information about the concurrent nature of the joint sentencing recommendation
does not excuse his subsequent agreement and acquiescence to that term.
Allowing a conditional acceptance of a valid plea under these facts would crash
headlong into principles of fairness and finality which underlie double jeopardy
constitutional protections. Comstock, 168 Wis. 2d at 936-37.

¶35 The State next alleges that Troon fails to show that the circuit court
erred in its finding that it did not sua sponte vacate Troon’s plea. Although there
is no such explicit finding by the court, the State interprets the court’s following
statement as such a finding: “[W]hen we came back, we all knew what we were
going to be talking about. We were going to be talking about whether or not it
was a valid plea based upon what occurred at the [initial] hearing.” To the extent
that this statement can be considered an implicit finding by the court that it did not
act sua sponte, we reject it as contrary to the facts in the record, none of which
would cause a court to reasonably conclude that the parties understood that
Troon’s plea was potentially invalid because of the State’s concern with the
concurrent nature of Troon’s imprisonment sentence.

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No. 2024AP110-CR

¶36 As noted, the assigned prosecutor failed to raise an issue with
Troon’s plea in its letter to the circuit court or in the May or July 2022 hearings.
The May 2022 hearing transcript reveals that when the parties reconvened with the
court following the assigned prosecutor’s letter, defense counsel repeatedly stated
that he was unsure about the procedural posture of the case. This confusion was
shared by the court, which adjourned the hearing to determine the procedural
posture of the case and whether “we’re going to just reopen it.” As a result, any
determination by the court that it had not acted sua sponte in vacating Troon’s plea
because the parties knew that they had reconvened for this very purpose is
contradicted by the record and clearly erroneous.

¶37 In sum on this issue, the record indicates that the circuit court sua
sponte vacated Troon’s first plea. To the extent that the court explicitly or
implicitly made findings of facts to support a contrary determination, such
findings are clearly erroneous.

III. No Comstock exception applies.

¶38 Having concluded that the circuit court sua sponte vacated Troon’s
first plea, we now examine whether a Comstock exception applies. The parties
agree that the Comstock exception pertinent here is whether defense counsel
“intentionally withheld from the circuit court material information which would
have induced the court not to accept [Troon’s first] plea.” Comstock, 168 Wis. 2d
at 953. For the following reasons, we conclude that, as a matter of law, this
exception does not apply here.

¶39 In response to shifting arguments by the parties throughout these
proceedings, the circuit court provided various grounds for its vacatur decision,
but none suffice to satisfy the pertinent Comstock exception. At the May 2022

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No. 2024AP110-CR

hearing, the assigned prosecutor argued that there was not “a meeting of the
minds” between the State and defense counsel regarding the concurrent or
consecutive nature of the joint sentencing recommendation. At the July 2022
hearing, the court concluded that because there was no meeting of the minds,
“what I need to do at this point is vacate the judgment.” However, a lack of a
“meeting of the minds” between the parties is not a Comstock exception justifying
a court’s sua sponte vacatur of a properly offered and accepted plea. The State
cites no authority that permits a court to avoid Comstock’s directive on this
ground.

¶40 A misapplication of the pertinent Comstock exception continued to
pervade the postconviction hearing. The circuit court stated that “the vacating of
the plea was appropriate because of the fact that I found that there was that
material breach of the agreement by that intentionally withholding that
information” and that “concurrent versus consecutive” is “a material issue.” A
party’s material breach of the plea agreement is not a Comstock exception and
cannot be relied upon to support the court’s sua sponte vacatur of Troon’s plea
once it was validly offered and accepted. Further, as noted by postconviction
counsel, the State never brought a motion to vacate the plea agreement on any
ground nor argued that Troon materially breached the plea agreement.

¶41 In response to further argument from the parties at the
postconviction hearing, the circuit court offered another ground for its vacatur
decision. At the conclusion of the hearing, postconviction counsel asked the court
how the dispute about the concurrent nature of Troon’s sentence undermined the
validity of Troon’s plea. The court directed the question to the assigned

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No. 2024AP110-CR

prosecutor, who stated that Troon “wouldn’t have gotten the other matters
dismissed and read in.”5 The court then stated, “Yeah. Since the State may not
have offered what the State offered, the State may have done something different.”
Yet, the Comstock exception at the center of our discussion does not relate to the
State’s response when a party has intentionally withheld material information, but
to the circuit court’s response. In other words, the pertinent Comstock exception
concerns whether the withholding from the court of the material information
would have induced the court not to accept the plea, not whether the State would
have offered the plea agreement in the first place.

¶42 Even if we could square the circuit court’s conclusions within the
contours of the applicable Comstock exception, we fail to see how the absence of
an agreement about the consecutive or concurrent nature of Troon’s imprisonment
sentence was material to the validity of Troon’s plea. We are persuaded by the
language in Comstock, 168 Wis. 2d at 953, and by our reasoning in prior cases
that in order to meet the pertinent Comstock exception here—whether “a party
intentionally withheld from the circuit court material information which would
have induced the circuit court not to accept the plea”—the material information
withheld “must be information that would have affected the plea’s validity in the

5
One reasonable interpretation of this response from the State is that Troon’s insistence
on a concurrent imprisonment term would not have resulted in a plea agreement and the dismissal
of the charges that were dismissed and read in. But this assertion is undermined by the second
plea agreement reached between the parties, in which Troon similarly pled guilty to the OWI-5th
offense and the other charges were dismissed and read in for sentencing purposes. In the second
instance, the consecutive or concurrent nature of the imprisonment term and the length of
extended supervision was left for argument. Hence, the disagreement about the concurrent versus
consecutive nature of the jointly recommended imprisonment sentence did not hinder the State
from offering the same plea agreement or Troon from accepting it, albeit with a slightly different
joint sentencing recommendation for two aspects of the sentence being argued by the parties.

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No. 2024AP110-CR

first instance.” State v. Richer, No. 2019AP2024, unpublished slip op., ¶33, (WI
App May 18, 2021);6 see also Comstock, 168 Wis. 2d at 951 (the circuit court
erred when it “vacated its own order accepting the pleas and dismissing the felony
counts and reinstated the felony charges … without any showing that the
acceptance of the guilty plea was erroneous on grounds of involuntariness or lack
of a factual basis”). In other words, the material information withheld from the
court must be of the nature to undermine the validity of the plea, such as the
insufficiency of the plea colloquy, the lack of a factual basis for the plea, or that
the plea was not entered knowingly, voluntarily, and intelligently. Comstock, 168
Wis. 2d at 951. Neither the State’s possible rethinking of its plea offer in the first
instance or the disagreement about the precise structure of the recommended
imprisonment sentence undermined the validity of Troon’s plea because neither
rendered the court’s plea colloquy deficient, nor undermined the factual basis or
voluntariness of Troon’s plea.

¶43 The State argues that the record establishes that the circuit court
would not have accepted Troon’s plea had it known that there was no agreement
on the concurrent or consecutive nature of the joint sentencing recommendation.
The State fails to identify any such explicit statement in the record. Instead, in
support of such a conclusion, the State points to two statements made by the court
during the July 2022 hearing that: (1) had defense counsel represented that there
was no explicit agreement on this issue, the substitute prosecutor may have stated
that the State could not “go to plea and sentencing”; and (2) there was no “meeting
of the minds” on the issue of the concurrent nature of the jointly recommended

6
We cite this authored, unpublished opinion for its persuasive value only pursuant to
WIS. STAT. RULE 809.23(3)(b) (2023-24).

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No. 2024AP110-CR

imprisonment sentence. However, as stated, neither the hypothetical impact on the
State’s willingness to proceed with the hearing nor the court’s determination that
there was no “meeting of the minds” is of consequence under Comstock because
neither meets the pertinent exception. Rather, as stated, the intentional
withholding of material information must be such that it would have induced the
court not to accept the plea. Such a conclusion was never explicitly reached by
the court. To the extent the State means to argue that such a conclusion was
implied by the court, it is not sufficiently supported by the facts of record.

CONCLUSION

¶44 For the foregoing reasons, we reverse the judgment of conviction
and the order denying Troon’s postconviction motion. We order that Troon’s
April 14, 2022 plea and judgment of conviction be reinstated. Neither party
disputes that on remand, Troon should be resentenced. However, we reject
Troon’s position that he is entitled to the benefit of the first joint sentencing
recommendation with a concurrent imprisonment term because it is undisputed
that the State never explicitly agreed to such a term. Therefore, we conclude that
on remand, unless another agreement is reached between the parties, they shall
offer the same portions of the first joint sentencing recommendation to which they
both agreed. At resentencing, the concurrent or consecutive nature of the
imprisonment term may be argued or further negotiated between the parties.

All sentence credit shall be calculated from the date of Troon’s April 14,
2022 plea and judgment of conviction. The court may conduct such other
proceedings as are necessary, consistent with this opinion.

By the Court.—Judgment and order reversed and cause remanded
with directions.

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No. 2024AP110-CR

Not recommended for publication in the official reports.

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