COURT OF
APPEALS DECISION DATED AND
RELEASED January
9, 1997 |
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adverse decision by the Court of Appeals.
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This opinion is subject to further editing. If published, the official version will appear in the bound
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No. 96-1100-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
CHARLES
R. WINCEK,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Jackson
County: ROBERT W. RADCLIFFE, Judge.
Affirmed.
Before
Eich, C.J., Dykman, P.J., and Roggensack, J.
DYKMAN,
P.J. Charles Wincek appeals from a judgment convicting him of
one count of failing to obey a Department of Agriculture, Trade and Consumer
Protection order, contrary to § 100.26(3), Stats., and three counts of theft, contrary to
§ 943.20(1)(b), Stats., and
an order denying his motion for postconviction relief. He contends that (1) the State breached
a plea bargain it had made with him, and (2) he was deprived of competent
counsel, contrary to the Sixth Amendment to the United States
Constitution. We conclude that Wincek
has waived the first issue and that he has not shown that he was prejudiced by
his attorney's failure to object to the asserted breach of the plea
bargain. Accordingly, we affirm.
Wincek
was a contractor. He was prosecuted in
several counties for theft and for violating § 100.26(3), Stats., which criminalizes the failure
to obey some consumer protection orders.
The charges were consolidated in Jackson County. By the time Wincek decided to plead guilty
to the consolidated charges, he had been found guilty of unrelated charges
elsewhere and had been sentenced to seven and one-half years in prison.
Wincek's
attorney and the district attorney entered into a plea bargain. Wincek would enter guilty pleas to two
misdemeanors and two felonies, and the district attorney would recommend a
sentence of ninety days in jail consecutive to the sentence Wincek was then
serving and probation consecutive to his prison terms. Wincek and the State knew that the
ninety-day term would be served in prison.
At
sentencing, the district attorney told the court that he agreed with Wincek's
parole agent that Wincek should be sentenced to five years' probation to
commence when he is released from prison.
But he later said: "As far
as additional prison time I would leave that up to the discretion of the court. He's serving at this time seven years, six
months." The court sentenced
Wincek to two years in prison on one of the felony counts, consecutive to the
sentences he was already serving, a concurrent sentence and probation.
Citing
State v. Poole, 131 Wis.2d 359, 361-62, 394 N.W.2d 909, 910 (Ct.
App. 1986), Wincek asserts that he is entitled to withdraw his guilty
plea. However, we do not consider this
assertion because Wincek failed to object to what he considers a breach of his
plea bargain. His attorney conceded that
she did not object because she felt that the district attorney's non-recommendation
of jail or prison time was more beneficial to Wincek than a recommendation of
ninety-days in jail.
Wincek
has waived the argument that the State violated the plea agreement by not
recommending a ninety-day jail sentence.
In State v. Dugan, 193 Wis.2d 610, 624-25, 534 N.W.2d 897,
902 (Ct. App. 1995), we concluded that failure to object to a breached plea
agreement at the sentencing hearing waives this issue on appeal. And in State v. Smith, 153
Wis.2d 739, 741, 451 N.W.2d 794, 795 (Ct. App. 1989), we said: "The supreme court has held that the
right to object to an alleged breach of a plea agreement is waived when the
defendant fails to object and proceeds to sentencing after the basis for the
claim of error is known to the defendant." Wincek concedes as much, for he fails to respond to the State's
assertion that he has waived this issue.
Failure to respond to an opposing proposition concedes the issue. State ex rel. Sahagian v. Young,
141 Wis.2d 495, 501, 415 N.W.2d 568, 571 (Ct. App. 1987). Wincek has thus failed to show that he is
entitled to withdraw his plea because of a breached plea agreement.
Next,
Wincek argues that his attorney was ineffective because she failed to object to
the State's asserted breach of the plea bargain. Wincek recognizes that in State v. Smith, 198
Wis.2d 820, 543 N.W.2d 836 (Ct. App. 1995), review granted, 546 N.W.2d
468 (1996), we concluded that when an issue of plea bargain breach is brought
in the context of an ineffective assistance of counsel claim, the defendant
must prove prejudice, a requirement initially found in Strickland v.
Washington, 466 U.S. 668, 694 (1984).
Wincek concedes that he cannot prove that his sentence would have been
different had the State recommended ninety-days' incarceration rather than the
non-recommendation it made.
Wincek
asks us to apply what he terms the "automatic prejudice" rule of Santobello
v. New York, 404 U.S. 257, 262-63 (1971). That, however, is the position of the dissent in Smith,
198 Wis.2d at 835-36, 543 N.W.2d at 843.
The concurrence in Smith attempts to reconcile the
possible competing positions of Santobello and Strickland. Whether we are convinced by the reasoning of
the concurrence and the lead opinion in Smith is not
relevant. We are at present bound by
our published opinions. Ranft v.
Lyons, 163 Wis.2d 282, 300 n.7, 471 N.W.2d 254, 261 (Ct. App. 1991).[1] Smith is clear. Wincek must show prejudice.
As
we concluded in Smith, there is evidence which shows that the
sentencing court relied upon Wincek's previous criminal record, which included
three battery convictions and a disorderly conduct charge while he was in
jail. As the sentencing court did in Smith,
the sentencing court here warned Wincek that it was not bound by any plea
agreement or recommendation, and might very well impose the maximum penalty
provided for each offense. The court
commented at length on what could be described as Wincek's one-man crime
spree. The court said:
While that happened you apparently were having
an affair with your girlfriend, you beat her up, were in jail for battery. You were released on Huber and you told her
or assisted her or whatever to write a bunch of checks on a closed account so
you could go to Texas.
And what I see
here, Mr. Wincek, is basically you don't show respect at all for other people's
property or their money. If you can get
their money one way or another, why that was your intent, and that's what you
have done all over the Western part of the State of Wisconsin starting in
Pierce County over to Polk County down to Trempealeau County, Clark County,
Jackson County.
The court concluded that the chances of Wincek ever
paying the required restitution were probably slim or none.
We
are convinced that the sentencing court relied upon its assessment of the
appropriate sentence for Wincek, not the prosecutor's statement that the court
should use its discretion to determine jail time.[2] Wincek has not shown that, but for his
counsel's failure to object to the asserted breach of plea bargain, the
"result of the proceeding would have been different." Strickland, 466 U.S. at
694. Accordingly, we affirm Wincek's
judgment of conviction.
By
the Court.—Judgment and order
affirmed.
Not
recommended for publication in the official reports.