Wisconsin judges always get the final say in sentencing - including the power to override plea agreements between lawyers.
A Pierce County judge demonstrated exactly that level of discretion this week in sentencing a drunken-driving offender on his ninth such conviction. The judge, Joe Boles, didn't believe the punishment fit the crime.
"I cannot go along with the recommendation," Boles said at the Monday, Oct. 9, sentencing hearing for Mark B. Harmon, a homeless man who previously lived in Lake City, Minn.
Boles then took the seldom-seen step of sentencing the defendant to a more severe punishment -10 years, five of which must be spent in prison - than what had been agreed to by Harmon, his attorney and prosecution.
Harmon's attorney, Phil Helgeson, and Pierce County Assistant District Attorney Bill Thorie had reached a plea deal calling for three years in prison and three years on extended supervision.
Thorie outlined the terms of the deal at the beginning of the hearing, prompting Boles to note that if, after hearing the sentencing arguments, he felt uncomfortable with the deal, he would allow Harmon to withdraw his guilty plea.
Thorie and Helgeson both described how Harmon, 47, was up-front with the Pierce County sheriff's deputy who arrested him during the July 21 traffic stop in rural Hager City and had been respectful throughout the process.
When faced with the possibility of withdrawing his plea after Boles' assertion that he wasn't going along with the agreement, Harmon conferred with Helgeson briefly before announcing that he would leave it in the judge's hands.
"He's going to continue accepting responsibility," Helgeson told Boles.
The judge acknowledged Harmon's level of accountability in the case, but said it was overshadowed by the need to protect the public from a man who continued driving drunk after receiving eight previous drunken-driving convictions.
Prison, Boles said, allows Harmon to "get out of this circle of reoffense because this has to stop."
"This is the most dangerous crime in Wisconsin," the judge said.
A preliminary breath test after the traffic stop showed Harmon's blood-alcohol level was 0.267. The stopped occurred after Harmon crossed the centerline of Highway 35, forcing the deputy to swerve to avoid a collision with him. He later told the deputy he'd been drinking vodka and hand-rolling a cigarette at the time of the near-miss.
The offense is grouped together with OWI-seventh and OWI-eighth crimes and carries a maximum sentence of 12 years and $25,000.
Boles said he'd have sentenced Harmon differently if it had been the seventh conviction. The negotiated plea represented the mandatory minimum, which Boles said would unduly depreciate the seriousness of an OWI-ninth conviction.
The sentence allows Harmon to participate in a substance-abuse program in prison, which, if completed successfully, could earn an early release. Boles ordered strict alcohol monitoring for "at least" the first 18 months of Harmon's extended supervision period. Other terms of the sentence call for a three-year driver's license revocation and an ignition interlock-device requirement for two years if he regains his license.