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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,
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Plaintiff-Respondent,
���� v.
Curtis D. Moore,
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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.
�