COURT OF APPEALS DECISION DATED AND FILED September 15, 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 |
IN COURT OF APPEALS |
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DISTRICT III |
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State of
Plaintiff-Respondent, v. David J. Huck,
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before
¶1 PETERSON, J. David Huck appeals a judgment of conviction for operating while intoxicated, fifth offense, and an order denying his postconviction motion. Huck argues he is entitled to be resentenced because the State breached his plea agreement. We affirm.
BACKGROUND
¶2 Huck was charged with one count of driving while intoxicated, fifth offense; one count of driving with a prohibited alcohol concentration, fifth offense; and one count of driving while his operating privileges were revoked. As a result of these charges, Huck’s extended supervision for a prior conviction was revoked and he was incarcerated to serve the remainder of that sentence. In this case, Huck agreed to plead no contest to the OWI charge in exchange for, among other things, the State’s agreement to recommend a particular sentence concurrent to his revocation sentence.
¶3 At Huck’s sentencing hearing the State set forth the length of sentence it was recommending pursuant to the plea agreement. It neglected to mention whether the sentence should be concurrent or consecutive to Huck’s revocation sentence. However, when Huck’s attorney spoke, she said, “The district attorney’s office is recommending—I don’t think [the State] said so, but in accordance with the plea agreement, the district attorney’s office is asking for concurrent time.” The State did not say anything further. At the conclusion of the hearing, the court imposed a longer sentence than the State recommended and imposed it consecutive to Huck’s revocation sentence.
¶4 Huck filed a postconviction motion, arguing that the State breached the plea agreement by failing to explicitly recommend a concurrent sentence and that his trial counsel was ineffective for failing to object to the breach. The court denied his motion, concluding it was clear the recommendation was for a concurrent sentence.
DISCUSSION
¶5 The primary issue presented in this appeal is whether the State breached the plea agreement by failing to explicitly specify it was recommending a concurrent sentence. However, as a threshold matter, we first address whether Huck is entitled to direct appeal of this claim or whether the issue must be evaluated within the context of an effective assistance of counsel claim.
¶6 Huck appears to agree with the State that he waived the right
to directly appeal because his counsel did not object to the State’s
recommendation. We conclude, however,
that Huck properly preserved the issue because his clarification of the State’s
recommendation served the same purpose as an objection. The rule that a party must timely object to
preserve an issue for appeal exists to give both the parties and courts “a fair
opportunity to prepare and address [objections] in a way that most efficiently
uses judicial resources.” State
v. Erickson, 227
¶7 A defendant has a constitutional right to the enforcement of
a negotiated plea agreement. State
v. Smith, 207
¶8 Huck argues the State’s promise to recommend a concurrent
sentence was “critically important” to him.
But he fails to explain how, under the circumstances here, he was
deprived of a material and substantial benefit for which he bargained. Instead, he simply contends: “Prior precedent from this court leads to the
conclusion that the breach … was substantial and material.” However, in neither of the cases Huck relies
on—State
v. Knox, 213
¶9 In Knox, the defendant negotiated with
one prosecutor for an agreement that the state would recommend concurrent
sentences. At the sentencing hearing a
different prosecutor recommended consecutive sentences. The defendant immediately notified the
prosecutor of the error and the state changed its recommendation. We held there was no substantial breach
because the prosecutor’s unintentional misstatement was promptly rectified through
the efforts of both counsel. Knox,
213
¶10 Huck nevertheless argues the result should be different here because unlike in Knox and Bowers, the prosecutor here did not explicitly respond to the clarification of the plea agreement. We disagree.
¶11 Three factors, in combination, lead us to our conclusion. First, the prosecutor’s recitation of the agreement involved an omission of a term of the agreement. Every published opinion of which we are aware concerns the state affirmatively contradicting a term of a plea agreement.[1] Even in Knox and Bowers, where we did not find material and substantial breaches, the state’s recommendations had directly contravened the plea agreements. Here, unlike all those other cases, the State simply neglected to mention a term of the agreement.
¶12 Second, and importantly, Huck’s counsel clarified the omission. After the prosecutor made his sentencing recommendation, Huck’s attorney clarified that, while the State had neglected to say so, “according to the plea agreement, the district attorney’s office … is asking for concurrent time.” There is no requirement that a plea agreement be presented to the court in any particular way. It may be presented by the prosecutor, by the defense, or by both. Here, the agreement was primarily presented by the prosecutor and clarified by Huck’s attorney.
¶13 Third, the State did not disagree with Huck’s counsel’s clarification. One would expect the prosecutor to speak up if the State did not agree. We can imagine no interpretation of the State’s silence here other than agreement. Indeed, as the trial court found, it was clear to everyone that the agreement called for a concurrent recommendation. During the postconviction motion hearing, the court observed:
[T]he record is clear that the court was informed that the plea agreement was five years with two years initial confinement and three years of extended supervision and that the sentence was to be concurrent.
The court then reiterated that although the State did not say, “Oh, Yes. I agree with [the clarification] … the record is clear that that’s what the agreement was.”
¶14 The dissent views the State’s silence in a vacuum. But any complete analysis requires that facts be viewed in context. Here, as we have explained, the context of the State’s silence leaves no reasonable interpretation other than its agreement with the concurrent recommendation as part of the plea agreement. The dissent does not dispute this. Hence, contrary to the dissent’s claim, the State did acknowledge the concurrent recommendation. Consequently, the State met its obligation. Although the dissent would prefer that the State do more, the law does not require more.
¶15 We do not disagree with Huck that the concurrent recommendation was a material and substantial part of his plea agreement. However, the prosecutor’s omission of this term was promptly rectified so that the full plea agreement was clearly communicated to the court. As a result, the State did not materially and substantially breach the agreement.
By the Court.—Judgment and order affirmed.
Not recommended for publication in the official reports.
No. |
2008AP3043-CR(D) |
¶16 brunner, j.
(dissenting). I respectfully
dissent from my colleagues’ conclusion that the prosecutor’s conduct in this
case does not amount to a material and substantial breach of the plea
agreement. Huck is entitled to relief
because the prosecutor’s conduct both violated the terms of the agreement and
deprived Huck of a material and substantial benefit for which he
bargained. See State v. Bowers, 2005 WI App 72, ¶9, 280
¶17 Despite the
prosecutor’s omission, the court fails to see why the State’s promise to
recommend a concurrent sentence would be important to Huck. Huck expected the district attorney to place
the power and influence of his office behind the sentencing recommendation. “The prosecutor is cloaked with the authority
of [the sovereign]; he stands before the jury as the community’s
representative. His remarks are those,
not simply of an advocate, but rather of a [state] official duty-bound to see
that justice is done.”
¶18 My view is supported by other content in the plea agreement. In addition to the State’s recommendation with respect to sentence length, Huck also secured the State’s agreement to “stand mute on whether to order [a] PSI.” If Huck had been bargaining for the State’s silence, one would expect the sentencing recommendation to have similar limiting language. It does not. In my view, Huck has established that the prosecutor deviated from the terms of the plea agreement and deprived Huck of a material and substantial benefit for which he bargained. Huck is therefore entitled to resentencing.
¶19 I am not persuaded by the three factors the court recites in concluding that the State’s omission was harmless. First, the court states that no published opinion has considered whether a recommending prosecutor’s omission at sentencing can be a material and substantial breach. This may be true, but the absence merely indicates that the matter is an open question of law. Second, the court considers it important that Huck’s attorney clarified the sentencing recommendation. But there would be no need for a plea agreement if Huck was bargaining for the endorsement of his own attorney. Finally, the court notes that the State did not disagree with Huck’s clarification of the sentence recommendation. My reading of our case law requires the prosecutor to acknowledge or clarify the recommendation, not the defendant’s attorney.
¶20 The court is correct that State v. Knox, 213
¶21 The record reveals that the district attorney in no way clarified or acknowledged his omission during the sentencing hearing. Acknowledgement requires “a word or act [showing that] one has knowledge of and agrees to (a fact or truth).” Webster’s Third New International Dictionary 17 (unabr. 1993). When Huck clarified that the State’s recommendation was for a concurrent sentence, the prosecutor sat on his hands. Under these circumstances, I have no trouble concluding that Huck was deprived of a material and substantial benefit for which he bargained.
¶22 The court believes that “it was clear to everyone that the
agreement called for a concurrent recommendation.” Majority, ¶13.
This conclusion is not supported by the sentencing hearing
transcript. Instead, the court bases its
conclusion on the circuit court’s assurances during the postconviction
hearing. But sentencing is an act of
discretion, and our “review of a circuit court’s exercise of discretion depends
on [our ability] to access a circuit court’s acts of discretion from the
record.” State v. Grady, 2007 WI
81, ¶33, 302
¶23 While I agree with the court that the recommendation for
concurrent sentences was a material and substantial part of Huck’s plea
agreement, I cannot agree that the district attorney’s failure to endorse the
recommendation, or even mention it, was harmless. While prosecutors need not make a sentence
recommendation “forcefully or enthusiastically,” they still must make it. See
Poole,
131
[1] See, e.g., State v. Smith, 207 Wis. 2d 258, 558 N.W.2d 379 (1997) (prosecutor recommended sentence of fifty-eight months in prison contrary to plea agreement not to recommend a sentence); State v. Quarzenski, 2007 WI App 212, 305 Wis. 2d 525, 739 N.W.2d 844 (state sought extended supervision and probation beyond the time provided in the plea agreement); State v. Liukonen, 2004 WI App 157, 276 Wis. 2d 64, 686 N.W.2d 689 (prosecutor implied defendant should receive a sentence harsher than articulated in the plea agreement); State v. Howland, 2003 WI App 104, 264 Wis. 2d 279, 663 N.W.2d 340 (state agreed to make no sentencing recommendation, but contacted department of probation and parole to complain about the presentence investigation report’s recommendations); and State v. Howard, 2001 WI App 137, 246 Wis. 2d 475, 630 N.W.2d 244 (prosecutor recommended consecutive sentences in spite of plea agreement to recommend concurrent sentences).