2007 WI APP 212

COURT OF APPEALS

DECISION

DATED AND FILED

August 22, 2007

David R. Schanker

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.�

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.�

Appeal Nos.�	2006AP2509 2006AP2510 2006AP2511	Cir. Ct. Nos.� 2000CF371 2001CF137 2001CF180
STATE OF WISCONSIN��			IN COURT OF APPEALS



State of Wisconsin, �� Plaintiff-Respondent, �� v. David C. Quarzenski, �� Defendant-Appellant.

�� APPEAL from judgments and orders of the circuit court for Walworth County:� JOHN R. RACE, Judge.� Affirmed.�

�� Before Brown, C.J., Anderson, P.J., and Nettesheim, J.

�1�� NETTESHEIM, J. Pursuant to a plea bargain, David C. Quarzenski agreed to plead guilty to multiple charges, and the State agreed to cap its sentencing recommendation at seven years.� At the sentencing hearing, the State made its promised recommendation, but additionally asked the circuit court to impose periods of extended supervision and probation on certain of the charges.� Quarzenski contends that this constituted a breach of the plea agreement and that his multiple counsel were ineffective by failing to object to the breach.�

�2�� Based on the evidence presented at the Machner[1] hearing, we conclude that the parties� plea agreement regarding the State�s sentencing recommendation was targeted at the period of Quarzenski�s confinement, not other potential components of the sentences.� Therefore, the State did not breach the plea agreement, and trial counsel were not ineffective for failing to object.� We affirm the judgments of conviction and the orders denying postconviction relief.

BACKGROUND

�3�� In circuit court case number 2000CF371, the State charged Quarzenski with possession with intent to distribute marijuana and possession of drug paraphernalia pursuant to Wis. Stat. �� 961.41(1m)(h)1. and 961.573(1) (2005-06).[2]� While that case was pending, Quarzenski was arrested and charged in case number 2001CF137 with delivery of marijuana pursuant to � 961.41(1)(h)1. and two counts of bail jumping pursuant to Wis. Stat. � 946.49(1)(b).� Quarzenski retained Attorney Patrick K. Cafferty to represent him on these two cases (�the Cafferty cases�).� ��

�4�� A month later, the State filed further charges against Quarzenski in case number 2001CF180.� The ensuing information charged Quarzenski with delivery of a controlled substance to a minor pursuant to Wis. Stat. � 961.41(1)(h)1. and � 961.46(3) (1999-2000), possession of marijuana pursuant to � 961.41(3g)(e), three counts of second-degree sexual assault pursuant to Wis. Stat. � 940.225(2)(a), and five counts of bail jumping pursuant to Wis. Stat. � 946.49(1)(b).� The state public defender appointed Attorney Jenelle Glasbrenner to represent Quarzenski on this third case (�the Glasbrenner case�).�

�5�� Quarzenski faced over a century and a half of potential sentences on all of the charges.� In July 2001, the parties negotiated a global plea agreement by which Quarzenski would plead guilty to one count of possession with intent to deliver 500 grams or less of a controlled substance (THC), one count of delivery of 500 grams or less of a controlled substance (THC), one count of violation of the terms of his bond by possession of illegal drugs, and one count of second-degree sexual assault.� The State agreed to dismiss, but read in, the remaining counts, which would be considered for sentencing purposes.� In addition, the State agreed to cap its sentencing recommendation at seven years.�

�6�� Quarzenski signed two Plea Questionnaire/Waiver of Rights forms in connection with the agreement, one for �the Cafferty cases� and one for �the Glasbrenner� case.� The �Voluntary Plea� portion of the plea questionnaire for �the Cafferty cases� stated:� �Cap at 7 years W.S.P.�[3]� That portion of the questionnaire in �the Glasbrenner� case stated:� �Plead to Cts. 2 & 3; all remaining counts to be dismissed and read in; state to cap recommendation at 7 years WSP; [defendant] free to argue.��

�7�� At the plea hearing Glasbrenner recited the terms of the plea agreement.� Regarding the State�s sentencing recommendation, Glasbrenner stated, �The state is to cap its recommendation on all three files combined at 7 years.� The defense is free to argue.�� Quarzenski confirmed to the circuit court that this also was his understanding. �The State offered no objection or corrections.� The court approved the plea agreement, accepted Quarzenski�s guilty pleas, and ordered the department of corrections to submit a presentence report.�

�8�� At the sentencing hearing, Quarzenski appeared with both Cafferty and Glasbrenner.� However, a different assistant district attorney represented the State.� The following colloquy ensued when the circuit court asked whether there was a plea agreement:�

[ASSISTANT D.A.]:� Yes, your Honor.� The state is recommending 7 years [in] prison but is free to argue on how much extended supervision and/or probation on other counts.

THE COURT:� Okay.

MS. GLASBRENNER:� I believe that was a cap of 7 years.

[ASSISTANT D.A.]:� Which is what I said, I thought. �

No further discussion regarding the terms of the plea agreement occurred.�

�9�� In its sentencing statement, the State recommended seven years� confinement, but additionally asked for an extensive period of extended supervision and consecutive long-term probation. Neither Cafferty nor Glasbrenner objected to this sentencing request.� The circuit court adopted the State�s position, sentencing Quarzenski to seven years� confinement and eight years� extended supervision for the second-degree sexual assault, seven years� concurrent confinement and three years� extended supervision for the bail jumping, and four years of consecutive probation on the drug charges under withheld sentences.[4]�

�10�� Represented by new counsel, Quarzenski moved for postconviction relief pursuant to Wis. Stat. � 974.06.� Quarzenski alleged that the State had breached the plea agreement by seeking extended supervision and probation beyond the seven-year request for confinement and that his trial counsel were ineffective for failing to object.

�11�� The circuit court conducted separate Machner hearings at which Glasbrenner and Cafferty respectively testified.� Glasbrenner testified that the �extensive� negotiations with the State focused on Quarzenski�s potential prison time because Quarzenski �didn�t care about extended supervision.� He didn�t care about probation.� His primary goal was to limit the amount of time he spent in prison.�� The cap at seven years �was a cap at prison, the actual confinement, not the total sentence.�

�12�� Shown a letter she sent to the state public defender�s office stating that Quarzenski�s sentence may present �arguably meritorious issues for appeal,� Glasbrenner testified that the terminology in her letter was �standard language,� and she felt an appellate challenge to the sentence �would be the only place to look.�� She harbored some doubts as to the sexual assault victim�s credibility and so subjectively felt the court�s sentence was harsh, but nonetheless was proper under the law and the agreement.� Glasbrenner testified that if she believed the State had incorrectly stated the plea agreement she would have objected, as she has done with other clients.�

�13�� Cafferty testified that the �cap at 7 years WSP� language in the plea questionnaire in �the Cafferty cases� meant the amount of actual prison time that the State would recommend and that the State was otherwise free to recommend probation or extended supervision beyond that.� Cafferty testified he had no cause to object because he believed the State�s sentencing recommendation conformed to the parties� agreement.�

�14�� The circuit court denied Quarzenski�s motion for postconviction relief, ruling that the State had abided by the agreement and therefore Quarzenski�s attorneys were not ineffective for failing to object to the State�s sentencing recommendation.� Quarzenski appeals.[5]

DISCUSSION

The Law of Ineffective Assistance of Counsel

�15�� We analyze a claim of ineffective assistance of counsel under the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 687 (1984).� A defendant must satisfy both parts―deficient performance and resultant prejudice.� Id.; State v. Taylor, 2004 WI App 81, ��13-14, 272 Wis. 2d 642, 679 N.W.2d 893.� To prove deficient performance, the defendant must identify counsel�s specific acts or omissions that fall �outside the wide range of professionally competent assistance.�� Strickland, 466 U.S. at 690.� To prove prejudice, the defendant must show that the errors were so serious that the result of the proceeding was unreliable.� Id. at 687.� If the State substantially and materially breaches a plea agreement, prejudice is presumed because it results in a manifest injustice to the defendant.� See State v. Smith, 207 Wis. 2d 258, 281, 558 N.W.2d 379 (1997).

�16�� On review, we afford trial counsel�s performance great deference, examine the case from counsel�s perspective at the time, and make every effort to avoid determinations based on hindsight.� State v. Johnson, 153 Wis. 2d 121, 127, 449 N.W.2d 845 (1990).� Quarzenski bears the burden to defeat the strong presumption that counsel acted reasonably within professional norms.� See id.

Material and Substantial Breach

�17�� Quarzenski contends that the State�s agreement to cap its sentencing recommendation at seven years meant just that―a total sentencing package, regardless of the sentencing components, that would not exceed seven years.� By asking for extended supervision and probation that extended beyond that limitation, Quarzenski contends the State materially and substantially breached the agreement.� From this premise, Quarzenski maintains that both his trial counsel provided ineffective assistance when they did not object to that breach.�

�18�� The issue of whether Quarzenski�s trial counsel were ineffective depends on whether the State�s sentencing recommendation constituted a material and substantial breach of the party�s plea agreement.� See Smith, 207 Wis. 2d at 281.� A material and substantial breach violates the terms of the agreement so as to defeat the benefit for which the accused bargained.� State v. Williams, 2002 WI 1, �38, 249 Wis. 2d 492, 637 N.W.2d 733.� Only a material and substantial breach is actionable, see id.; counsel cannot have rendered ineffective assistance for not objecting to a technical breach or to none at all, see State v. Howard, 2001 WI App 137, ��14-15, 21, 246 Wis. 2d 475, 630 N.W.2d 244; and �manifest injustice� results from a material and substantial breach, see Smith, 207 Wis. 2d at 281.�

�19�� The terms of a plea agreement and the historical facts of the State�s conduct that allegedly constitute a breach of a plea agreement are questions of fact.� Williams, 249 Wis. 2d 492, �2.� But whether the State�s conduct constitutes a breach of the plea agreement and, if so, whether such breach was material and substantial, are questions of law that we review de novo.� State v. Naydihor, 2004 WI 43, �11, 270 Wis. 2d 585, 678 N.W.2d 220.� To the extent the circuit court�s conclusions are rooted in the witnesses� credibility, we will accept those determinations.� Jacobson v. American Tool Cos., Inc., 222 Wis. 2d 384, 390, 588 N.W.2d 67 (Ct. App. 1998).� If the court does not make express findings in that regard, we assume it made implicit findings on a witness�s credibility when analyzing the evidence.� Id.�

�20�� Quarzenski argues that the plea questionnaires stating a seven-year cap, Glasbrenner�s recitation of this provision at the plea hearing, and her reaction to the prosecutor�s request for extended supervision and probation at the sentencing hearing bear out his contention that the global agreement contemplated a total sentence of seven years.� He also maintains that since he was sentenced under Truth-in-Sentencing I (TIS-I), the plea agreement of seven years had to mean a seven-year total sentence on the three cases combined because under TIS-I he believes �any reference to a prison sentence or a sentence in general means a total sentence, including both confinement and extended supervision.�[6]��

�21�� The thrust of the testimony given by Glasbrenner and Cafferty at the Machner hearing was similar.� Glasbrenner testified that Quarzenski�s primary concern was the prospect of a lengthy period of incarceration and that the prospects of extended supervision and/or probation were not important to him.� Thus, the plea negotiations were conducted from that perspective.� After the plea bargain was struck, Glasbrenner understood that the seven-year cap applied to only the confinement portion of the sentences.� Moreover, Glasbrenner testified that if the State�s sentencing-cap promise was intended to cover all facets of the potential sentences, she would have objected to the State�s sentencing recommendation.

�22�� Cafferty testified that the �cap at 7 years W.S.P.� language in the plea questionnaire on �the Cafferty cases� referred to the actual prison time that Quarzenski would serve and that the State was otherwise free to argue for additional extended supervision or probation.� Like Glasbrenner, Cafferty testified that he had no cause to object because he viewed the State�s recommendation as being in keeping with the plea agreement.��

�23�� The circuit court held that the State abided by the plea agreement and therefore trial counsel were not ineffective for failing to object.� We agree.� The substantial period of confinement that Quarzenski faced lends credence to Glasbrenner�s testimony that Quarzenski was concerned only with the confinement portions of the sentences he would receive.� Thus, the plea negotiations were conducted from that perspective and the ultimate agreement spoke only to that concern.� Therefore, trial counsel had no basis to object when the State made its sentencing recommendation.� As noted, we afford trial counsel�s performance great deference, and examine the case from counsel�s perspective at the time, and avoid determinations based on hindsight.� Johnson, 153 Wis. 2d at 127.� Also as noted, when a circuit court�s conclusions are based on the court�s credibility findings, we accept those determinations.� Jacobson, 222 Wis. 2d at 390.� Here, although not expressly addressing the credibility of Glasbrenner�s and Cafferty�s testimony, it is obvious that the court found both credible since the court ruled in favor of the State, which relied on their testimony.� If the court does not make express findings on credibility, we assume it made implicit findings to that effect when analyzing the evidence.� Id.� We see no basis for disturbing the circuit court�s determinations.� The State did not breach the plea agreement, and therefore trial counsel were not ineffective for failing to object to the State�s sentencing recommendation.�

�24�� Trial counsel�s testimony at the Machner hearing also refutes Quarzenski�s reliance on TIS-1.� Quarzenski points to the language of Wis. Stat. � 973.01(2) which states:

A bifurcated sentence is a sentence that consists of a term of confinement in prison followed by a term of extended supervision under [Wis. Stat. �] 302.113.� The total length of a bifurcated sentence equals the length of the term of confinement in prison plus the length of the term of extended supervision.�

Based on this language, Quarzenski contends that the references in the plea questionnaires to �Cap at 7 years W.S.P.� and �state to cap recommendation at 7 years WSP� contemplated the total bifurcated sentences.� But the Machner testimony of both Cafferty and Glasbrenner clearly explained that these references were addressed to only the confinement portion of the sentences.� In short, Quarzenski was not concerned about the prospects of extended supervision and/or probation and, as a result, the plea agreement did not address those matters.��

�25�� Alternatively, Quarzenski argues that even if his attorneys were not ineffective, �the State�s breach of the plea agreement still resulted in manifest injustice� to him, entitling him to resentencing by a different judge.� However, this argument is premised on the existence of a breach by the State―a premise we have already rejected.� We deny Quarzenski�s alternative request for resentencing.

CONCLUSION

�26�� Because the State did not breach the plea agreement, Quarzenski�s trial counsel had no basis for objecting to the State�s sentencing recommendation.� Therefore, trial counsel were not ineffective.� We affirm the judgments of conviction and the orders denying postconviction relief.

�� By the Court.�Judgments and orders affirmed.

��

[1] See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

[2] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.

[3] Cafferty testified that the �W.S.P.� designation referred to the Wisconsin State Prisons.

[4] The presentence report recommended twelve to fifteen years� confinement followed by eight to ten years of extended supervision.�

[5] This court granted Quarzenski�s motion to consolidate the three cases for appeal.

[6] TIS-I applies to offenses committed between December 31, 1999, and January 31, 2003.� State v. Sutton, 2006 WI App 118, �3 n.4, 294 Wis. 2d 330, 718 N.W.2d 146, review denied, 2006 WI 113, 296 Wis. 2d 63, 721 N.W.2d 486.

Opinion Filed:	August 22, 2007
Submitted on Briefs:�	May 24, 2007
�

JUDGES:	Brown, C.J., Anderson, P.J., and Nettesheim, J.
�� Concurred:
�� Dissented:

Appellant
ATTORNEYS:	On behalf of the defendant-appellant, the cause was submitted on the briefs of Martin E. Kohler, and Christopher M. Eippert, of Kohler & Hart, LLP of Milwaukee.�

Respondent
ATTORNEYS:	On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general, and Thomas J. Balistreri, assistant attorney general.�