Appeals court allows Duluth man to withdraw plea agreement
MADISON — An appeals court Tuesday, Jan. 8, allowed a Duluth man to withdraw his three guilty pleas to drug-related charges after finding that Douglas County circuit judge erred in permitting him to withdraw only one.
In overturning Circuit Judge George Glonek, the District III Court of Appeals found that case law established that rejecting part of a plea agreement rejects all of it.
Devon M. Bowser, 34, was charged in January 2016 with delivering heroin and falsely presented a non-controlled substance after allegedly selling heroin to a confidential informant (CI).
While out on bail in May 2016, Bowser allegedly sold 3 grams of heroin or less to a different confidential informant. In a second case, he was charged with heroin distribution and bail jumping.
The cases were combined. Bowser agreed to plead guilty to three offenses in exchange for dismissal of the other pending charges and a recommendation to cap the sentence at nine years.
According to an appeals brief filed by Bowser's attorney, Bowser learned before sentencing that the first confidential informant recanted in an affidavit stating that he lied to police and Bowser did not sell him heroin.
Glonek held a hearing and took the CI's testimony that he never worked with the Douglas County Drug Task Force, did not know Bowser and he never participated in a photo lineup with law enforcement to identify Bowser as a heroin seller.
Law enforcement officers testified to just the opposite, saying that the CI had completed controlled buys with Bowser and that the CI had said he had lied in the affidavit.
Glonek dismissed all the charges against Bowser saying they were "were a package deal," and taken at the same time
Ultimately, Glonek found that Bowser had established a reason to withdraw his guilty plea in the first case filed against him but not the second because it involved a different CI.
Glonek reinstated the charge heroin and bail jumping charges in the second case and in June 2017, sentenced him to five years in prison three years of extended supervision.
On appeal, the defense argued that allowing Bowser to withdraw part of his guilty plea should have put the entire prosecution against him back to where it was before he entered into a plea agreement.
Instead, the state "retained the benefit of the plea agreement without the cost," in Glonek's allowing the plea to be withdrawn in the initial case but not to the additional charges, Glonek's attorney, Kathilynne Grotelueschen, wrote the court.
The state defended Glonek's decision saying that the separate alleged offenses can be considered separately in plea matters.
The district III Court did not agree. The result of Glonek's action put Bowser in a "significantly worse position than he had bargained for," while the state was in a better position.
"The state kept the benefit of Bowser's two convictions in the second case without the need for a trial...and it gained the opportunity to convict Bowser of three additional felony counts that had previously been dismissed," Judge Lisa Stark wrote in a 10-page opinion.
Although the state subsequently asked to dismiss the charges in the first case, it didn't factor into the appeals court decision. The state did not dismiss the charges during the hearing to withdraw Bowser's plea, but instead asked that they be reinstated, according to the opinion.
The appeals court dismissed Bowser's convictions and returned the case to Glonek to allow Bowser to withdraw his pleas.
The Attorney General's Office handled the appeal. Rebecca Ballweg, a spokesperson for the office, said Tuesday, Jan. 8, that the opinion was under review.
Bowser is incarcerated at Stanley Correctional Institution, according to online records.