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COURT OF APPEALS
DECISION
DATED AND FILED
January 28, 2009
David
R. Schanker
Clerk of Court of Appeals
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NOTICE
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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.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT II
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State of Wisconsin,
Plaintiff-Respondent,
v.
Curtis D. Moore,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Kenosha County: bruce
e. schroeder, Judge. Judgment
affirmed; order reversed and cause remanded with directions.
Before
Brown, C.J., Anderson,
P.J., and Neubauer, J.
¶1 PER CURIAM. Curtis D. Moore appeals from a
judgment convicting him upon his plea of guilty to one count of substantial
battery and from the order denying his postconviction motion for
resentencing. We affirm the judgment but
reverse the order and remand for resentencing because the State’s omission of a
key component of the sentence recommendation constituted a substantial and
material breach of the plea agreement.
¶2 The facts are undisputed.
The State charged Moore
with one count each of substantial battery and disorderly conduct, in violation
of Wis. Stat. §§ 940.19(2) and
947.01 (2005-06). Pursuant to a plea agreement, Moore agreed to plead
guilty to the substantial battery. In
exchange, the State agreed to dismiss other charges pending against Moore and to recommend at
sentencing a maximum sixteen months’ initial confinement and fourteen months’
extended supervision (ES). The State
also would be free to argue the ES conditions.
¶3 At the January 10, 2007, plea hearing, the trial court advised
Moore it
understood the State’s part of the bargain to be two-fold:
[T]he district attorney is … going to dismiss all of
the other charges against you … and, secondly, he’s going to recommend that the
sentence of the Court be no more oppressive to you than 16 months of initial
confinement followed by a 14-month period of extended supervision.
Moore confirmed that that also was his
understanding.
¶4 At the sentencing hearing on March 30, 2007, the prosecutor
advised the court that the State agreed “to cap any prison recommendation at
sixteen months and free hand to the conditions of extended supervision.” The prosecutor said nothing about the length
of ES. Defense counsel did not object
to, clarify or add to the prosecutor’s statement of the agreement. The court imposed a sentence of eighteen
months’ initial confinement followed by two years’ ES.
¶5 Moore
moved for postconviction relief seeking resentencing on the basis that the
State breached the plea agreement by failing to state the agreed-upon cap on
the ES component of the sentence. The
motion also alleged ineffective assistance of trial counsel on grounds that
counsel neither objected to the omission nor consulted with Moore about foregoing an objection. The trial court denied the motion without
granting Moore
the Machner
hearing he requested. The court found no
breach, stating it was “well aware” of the full agreement because it made a note
of the terms of the plea bargain in the case file and specifically recalled
reading the note while preparing for sentencing. The court concluded: “That the assistant
district attorney who was present for the hearing did not specifically repeat
the extended supervision component did not result in any misunderstanding on [the court’s] part about
what was being recommended.” Moore appeals.
¶6 A defendant has a constitutional right to enforce a
negotiated plea agreement. State
v. Smith, 207 Wis.
2d 258, 271, 558 N.W.2d 379 (1997). “[O]nce
the defendant has given up his [or her] bargaining chip by pleading guilty, due
process requires that the defendant’s expectations be fulfilled.” Id.
(citation omitted). A plea agreement is
breached when the prosecutor does not make the negotiated sentencing
recommendation. Id. at 272.
¶7 The State concedes a breach occurred. Moore
is not automatically entitled to relief, however. “A breach must not merely be technical, but rather must deprive the
party of a substantial and material benefit for which he [or she] bargained.” State v. Bangert, 131 Wis. 2d 246, 290, 389
N.W.2d 12 (1986). The party seeking relief must
establish that the breach is material and substantial by clear and convincing
evidence. Id. at 289. Whether the State breached the plea agreement
and, if so, whether the breach was material and substantial are questions of
law that we review de novo. State
v. Quarzenski, 2007 WI App 212, ¶19, 305 Wis. 2d 525, 739 N.W.2d 844.
¶8 Here, as part
of the plea agreement, the prosecutor agreed that at sentencing it would cap
its ES recommendation. At sentencing,
however, the prosecutor omitted any comment at all about ES, contrary to what
the parties had negotiated and agreed upon. The State contends the breach was merely
technical because the parties’ agreement had been accurately presented at the
plea hearing some months earlier. We
disagree. We assume the misstatement was
made innocently. Nonetheless, it did not
fairly present what the parties originally had agreed to, thus depriving Moore of what he agreed
to accept in exchange for the rights he relinquished. It is not for us to guess at the value Moore placed on the
length of ES. We conclude the breach was
material and substantial. See Smith, 207 Wis. 2d at 273.
¶9 Moore
also contends he received ineffective assistance of counsel when his attorney
failed to object to the State’s breach. Every
defendant has a Sixth Amendment right to effective assistance of counsel. Strickland v. Washington,
466 U.S.
668, 684-85 (1984). To establish
ineffective assistance, a defendant must prove that counsel’s performance was
deficient and that the deficient performance prejudiced the defense. State v. Allen, 2004 WI 106, ¶26, 274
Wis. 2d 568, 682
N.W.2d 433. Deficient performance and
prejudice both are questions of law that this court reviews de novo. State v. Johnson, 2004 WI 94, ¶10,
273 Wis. 2d 626,
681 N.W.2d 901.
¶10 To prove deficient performance, a defendant generally shoulders
the difficult burden of overcoming the strong presumption that his counsel
acted within professional norms. State
v. Johnson, 153 Wis.
2d 121, 127, 449 N.W.2d 845 (1990). In
this scenario, however, a defense counsel’s failure to immediately object to a
prosecutor’s sentence recommendation that clearly breaches the plea agreement
“[is] not reasonable conduct within professional norms and constitutes
deficient performance.” Smith,
207 Wis. 2d
at 274-75.
¶11 A defendant who has received ineffective assistance of counsel
is not entitled to relief absent proof of prejudice from the deficient
performance. Johnson, 153 Wis. 2d at 127. Typically, the defendant must show that “there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S.
at 694.
“A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id.
In
certain instances, however, prejudice can be presumed. Smith, 207 Wis. 2d at 278. This is such a case. A prosecutor’s material and substantial
breach of the plea agreement is a “‘manifest injustice’ and always results in
prejudice to the defendant.” Id. at 281.
¶12 We offer a final observation about the order denying Moore’s postconviction motion. The order states that the prosecutor’s
erroneous recommendation caused no misunderstanding on the court’s part, implying
that the error was harmless. We observe
here that the prejudice prong in
ineffective assistance of counsel cases is not precisely the same as the prejudice
prong in harmless error cases. In
harmless error cases, we analyze prejudice from the perspective of the error’s
effect on the outcome of the proceeding.
See, e.g., State
v. Weed, 2003 WI 85, ¶29, 263 Wis.2d 434, 666 N.W.2d 485. The Strickland test, by contrast, is
not outcome-determinative. See Smith, 207 Wis. 2d at 276. Rather,
the focus is on the inherent reliability of the process. “The result of a proceeding can be rendered
unreliable, and hence the proceeding itself unfair,” even if counsel’s errors
cannot be shown to have determined the outcome.
Id. (quoting Strickland,
466 U.S.
at 694). A defendant therefore
need demonstrate to the court only that the outcome is suspect, not that the
final result would have been different. Smith,
207 Wis. 2d at
275.
¶13 The appropriate remedy for a material and substantial breach of
a plea agreement depends on the totality of the circumstances. State v. Deilke, 2004 WI 104, ¶25,
274 Wis. 2d 595,
682 N.W.2d 945. We could vacate the
negotiated plea agreement and reinstate the original charges against Moore. See id. Moore
asks that we reverse the order denying his postconviction motion and order a Machner
hearing. Considering the totality of the
circumstances, however, we remand for a new sentencing hearing in accordance
with the terms of the plea agreement.
By the Court.—Judgment affirmed;
order reversed and cause remanded with directions.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.