COURT OF APPEALS

DECISION

DATED AND FILED

February 17, 2010

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 No.�	2009AP958-CR	Cir. Ct. No.� 2007CF4413
STATE OF WISCONSIN��			IN COURT OF APPEALS



State of Wisconsin, �� Plaintiff-Respondent, �� v. Robert L. Duckett, �� Defendant-Appellant.

�� APPEAL from a judgment and an order of the circuit court for Milwaukee County:� thomas p. dONEGAN, Judge.� Affirmed.�

�� Before Fine, Kessler and Brennan, JJ.

�1�� BRENNAN, J. Robert L. Duckett appeals a judgment of conviction for first-degree reckless injury while armed, and an order denying his postconviction motion.� Duckett argues that the prosecutor�s remarks during the sentencing hearing breached the parties� plea agreement, in violation of his right to due process.� We affirm the circuit court.

Background

�2�� On January 16, 2008, Duckett pled no contest to first-degree reckless injury while armed.� At that time, Duckett and the State entered into a plea agreement.� The State agreed to request a presentence investigation (�PSI�) report and to recommend prison time, without any specific recommendation as to the length of the prison sentence.� Duckett remained free to argue for probation with a stayed sentence.

�3�� At the sentencing hearing on February 26, 2008, the prosecutor began his recommendation as follows:� �Your Honor, again, the [S]tate is recommending prison time here in this case.� And the PSI, the recommendation from the PSI is for two to five years, followed by four to five years of extended supervision.�� The prosecutor then �highlight[ed] the aggravating and mitigating factors that the [S]tate [saw] in this case.�� The prosecutor set forth, in great detail, the crime and Duckett�s lengthy criminal record, concluding, �[t]his is an aggravated case, and I think it�s shocking, the defendant�s responses to the questions in the PSI, how brazen his attitude is here.� And I hope the [S]tate�s highlighting of some of these factors here will be taken into account by the court.�� Following the parties� sentencing arguments, the circuit court imposed a ten-year sentence composed of six years� initial confinement and four years� extended supervision.

�4�� On January 23, 2009, Duckett filed a postconviction motion through new counsel, asserting that the State had breached the plea agreement by explicitly referencing the PSI report�s sentencing recommendation, and by following that reference with �a lengthy series of comments on the aggravated nature of the case.�� Duckett argued that by presenting its recommendation in that manner, the State implicitly but clearly conveyed to the court that the PSI report�s sentencing recommendation was too low�in breach of the plea agreement�s prohibition against recommending a particular sentence.

�5�� The circuit court held an evidentiary hearing on the motion, at which both Duckett and his trial counsel testified.� Trial counsel explained that he did not object to the prosecutor�s sentencing remarks because he did not believe that they violated the plea agreement.� Following the hearing, the circuit court denied Duckett�s postconviction motion, holding that the State�s remarks were merely informative and therefore did not constitute a breach of the plea agreement.� Duckett appeals.

Standard of Review

�6�� Because Duckett�s trial attorney did not object to the State�s recommendation at the sentencing hearing, Duckett has forfeited[1] his right to direct review of the alleged plea agreement breach.� See State v. Howard, 2001 WI App 137, �12, 246 Wis. 2d 475, 630 N.W.2d 244.� Therefore, we must review the case in the context of a claim for ineffective assistance of counsel.� Id.� First, we �consider whether the State breached the plea agreement.�� Id.� �If there was a material and substantial breach, the next issues are whether [Duckett�s] counsel provided ineffective assistance and which remedy is appropriate.�� See id.� Whether the prosecutor�s conduct constituted a material breach of the plea agreement is a question of law that we review de novo.� See State v. Naydihor, 2004 WI 43, �11, 270 Wis. 2d 585, 678 N.W.2d 220.

Discussion

�7�� The parties do not dispute that the State recommended prison as they agreed, and Duckett does not argue that the State directly breached the plea agreement.� Instead, Duckett argues that the State indirectly breached the plea agreement during the sentencing hearing in two ways:� (1) by referencing the PSI report�s sentencing recommendation; and (2) by describing the aggravating and mitigating factors, including Duckett�s �shocking� lack of remorse.� In response, the State asserts that the comments made by the prosecutor during the sentencing hearing were informational in nature, and thereby did not directly or indirectly breach the plea agreement.� We agree with the State, and for that reason, conclude that trial counsel�s representation was not deficient.

�8�� [A]n accused has a constitutional right to the enforcement of a negotiated plea agreement.�� State v. Williams, 2002 WI 1, �37, 249 Wis. 2d 492, 637 N.W.2d 733 (�[O]nce [a defendant] agrees to plead guilty in reliance upon a prosecutor�s promise to perform a future act, the [defendant]�s due process rights demand fulfillment of the bargain.�).� A plea agreement is breached when a prosecutor fails to present the negotiated sentencing recommendation to the circuit court.� Id., �38.� An actionable breach, however, �must not be merely a technical breach; it must be a material and substantial breach.�� Id.� �A material and substantial breach is a violation of the terms of the agreement that defeats the benefits for which the [defendant] bargained.�� Id.� Here, the question is whether the prosecutor�s comments deprived Duckett of the benefit he bargained for�a prison term recommendation.

�9�� The Wisconsin Supreme Court has stated that a prosecutor has a duty to give the court relevant sentencing information but must do it in a way that honors the plea agreement:� �the State must walk �a fine line� at a sentencing hearing.� A prosecutor may convey information to the sentencing court that is both favorable and unfavorable to [a defendant],� but must do so while also abiding by the terms of its agreement with the defendant.� Id., �44 (footnote omitted).� �The State must balance its duty to convey relevant information to the sentencing court against its duty to honor the plea agreement.�� Id.

�10�� Here, the State properly conveyed relevant information to the court without depriving Duckett of the benefit of the prison recommendation he bargained for.� It should be noted that a request for a PSI report was part of the parties� plea agreement.� The court had the PSI report before it at the start of the sentencing hearing.� Even before the prosecutor spoke, the court confirmed with Duckett�s attorney that he had gone over the PSI report with Duckett.� Then the prosecutor gave his recommendation for prison, without specifying a length of time.� Next, the prosecutor advised the court of the PSI report�s sentencing recommendation and the aggravating and mitigating factors, including Duckett�s �shocking� lack of remorse as shown in his answers to the PSI writer�s questions.� Finally, the prosecutor concluded by simply asking the court to take those factors into consideration.� The prosecutor honored the plea agreement by:� (1) recommending prison; (2) never giving his opinion as to the length of the sentence; (3) never implying that he agreed with the PSI report�s recommended sentence length, or that he sought a longer sentence than the PSI report recommended; (4) giving the background information that he was duty-bound to provide; and (5) concluding his remarks with a neutral request that the court consider all the factors.

�11�� Duckett concedes that the prosecutor was permitted to advise the court of aggravating and mitigating factors.� While arguing that the prosecutor crossed the line when he described Duckett�s comments in the PSI report as exhibiting a �shocking� lack of remorse, Duckett�s counsel admitted at the postconviction hearing that the real issue was not the prosecutor�s aggravating factor comments, but, �[t]he real problem, the big problem, is that mentioning of the specific [sentencing] recommendation that�s in the [PSI report].�� Duckett argued that by presenting its recommendation in that manner, the State implicitly conveyed to the court that the PSI report�s sentencing recommendation was too low�in breach of the plea agreement�s prohibition against recommending a particular sentence.

�12�� Duckett relies on Williams to support his position.� In Williams, during the sentencing hearing, the prosecutor began by stating that ��[w]hen � Williams entered his plea � we had told the Court that we would be recommending � that he be placed on probation, that he pay arrearages and pay current child support.�� Id., 249 Wis. 2d 492, �49 (third and fourth alterations in Williams).� The prosecutor then when on to say that:

�After reading through the [PSI report], � I can best describe my impression of this defendant as manipulative and unwilling to take any responsibility.� I have had an occasion to speak with [the defendant�s ex-wife].� And she has indicated things that she will be presenting to the Court.� But it was quite a contrast, speaking with her and reading and learning about [the defendant].�

Id., �47 (second and third brackets in Williams).

�13�� The Wisconsin Supreme Court held that the prosecutor�s comments at the sentencing hearing were �less than neutral� and that �the prosecutor implied that had the State known more about [Williams], it would not have entered into the plea agreement.�� Id.� Ultimately, the court concluded that the State inappropriately �cast doubt on [and] distance[d] itself from its own sentencing recommendation,� and in doing so, breached the plea agreement.� Id., ��50, 59.

�14�� This case is easily distinguishable from Williams.� First, unlike in Williams where the State had agreed to recommend probation, here, the State agreed to request a PSI report and to recommend prison.� The State was permitted to support its prison recommendation with facts from the PSI report, the file, and other sources describing the details of the crime, aggravating factors, and Duckett�s criminal record.� In Williams, the State, necessarily, had to tread more carefully because it had agreed to recommend probation, not prison.� The State�s emphasis on the negative details of the crime and aggravating factors undermined that agreement and worked to deprive Williams of the benefit of his bargain for a probation recommendation.� That is not the case here because the parties agreed that the State would recommend prison.

�15�� Further, in Williams, the State recited how its impressions of the defendant changed after reading the PSI report and interviewing the defendant�s ex-wife.� The State emphasized the new information in the PSI report, adopting the PSI report�s negative characterizations of Williams as its own.� The State�s presentation of the new information implied that the State no longer wished to abide by the terms of the plea agreement.� Here, there is nothing in the prosecutor�s remarks that indicates he was backing away from the terms of the plea agreement.� In this case, the prosecutor merely recited those facts set forth in the PSI report, which the court already had before it and had referred to.� In his remarks, the prosecutor did not implicitly or explicitly suggest that the court should adopt the PSI report�s sentencing recommendation or that the PSI report�s sentencing recommendation was too lenient.

�16�� Duckett also attempts to persuade the court that this case is similar to United States v. Vaval, 404 F.3d 144 (2d Cir. 2005), a case before the Second Circuit Court of Appeals.� We note as an initial matter that while the ��due process clauses of the state and federal constitutions are essentially equivalent and are subject to identical interpretation,�� see State v. Stenklyft, 2005 WI 71, �63, 281 Wis. 2d 484, 697 N.W.2d 769 (citation omitted), federal cases interpreting the due process clause are only considered persuasive authority and we are not bound by those courts� decisions, see Olivarez v. Unitrin Property & Casualty Insurance Co., 2006 WI App 189, �12 n.6, 296 Wis. 2d 337, 723 N.W.2d 131.� Regardless, this case is distinguishable from Vaval on the facts.

�17�� In Vaval, the plea agreement prohibited the government �from seeking an upward departure or taking a position on the appropriate sentence within the applicable [U.S. Sentencing] Guidelines range� during the defendant�s sentencing hearing; however, the government was permitted �to �advise� the court of �information relevant to sentencing.�� Id., 404 F.3d at 153.� In other words, the Government agreed not to recommend any sentence but only to �advise� the court of relevant information.� Because of the government�s �highly negative characterizations of [the defendant�s] criminal history as �appalling� and his purported contrition as �disingenuous,�� the reviewing court found that the government did more than simply �advise,� in violation of the plea agreement.� Id.� Here, Duckett�s plea agreement specifically permitted the State to recommend prison.� The State had not committed to taking only an �advisory� role.� The State was entitled to support that prison recommendation.

�18�� In short, we find the State abided by the parties� plea agreement.� The plea agreement did not curtail the State�s ability to advocate its position that Duckett receive prison time.� Instead, the plea agreement merely prohibited the State from recommending a particular length of time.� The State�s recitation of the PSI report�s recommendation for a specific sentence was simply that, a recitation, and the State�s discussion of the particulars of Duckett�s crime did not amount to an endorsement of the PSI report�s recommendation.� Consequently, we conclude the State did not breach the plea agreement.� And because the State did not breach the plea agreement, Duckett�s trial counsel was not deficient for failing to object to the State�s sentencing recommendation.

�� By the Court.�Judgment and order affirmed.

[1] While the parties and relevant case law use the word �waiver,� we use the word �forfeiture� consistent with the terminology adopted by State v. Ndina, 2009 WI 21, �29, 315 Wis. 2d 653, 761 N.W.2d 612 (�Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.�) (internal quotation marks and citation omitted).

Case No.:	2009AP958-CR
Complete Title of Case:		�Petition for Review filed.

Opinion Filed:	February 17, 2010
Submitted on Briefs:�	January 5, 2010
Oral Argument:�	�

JUDGES:	Fine, Kessler and Brennan, JJ.
�� Concurred:	�
�� Dissented:	�

Appellant
ATTORNEYS:	On behalf of the defendant-appellant, the cause was submitted on the briefs of Michael K. Gould, assistant state public defender, 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 Eileen W. Pray, assistant attorney general.