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COURT OF APPEALS
DECISION
DATED AND FILED
December 7, 2010
A.
John Voelker
Acting 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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State of Wisconsin,
���������
Plaintiff-Respondent,
���� v.
Mark Allan Campbell,
���������
Defendant-Appellant.
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����������� APPEAL
from a judgment and an order of the circuit court for Pierce County:� JAMES
J. DUVALL, Judge.� Affirmed.�
����������� Before Hoover,
P.J., Peterson and Brunner, JJ.
�1������� PETERSON, J. Mark Campbell appeals a
judgment convicting him of first-degree sexual assault of a child and an order
denying his motion for postconviction relief.�
Campbell
argues he is entitled to plea withdrawal or resentencing because the State
breached his plea agreement.� Campbell also contends the sentencing court lacked
authority to order, as a condition of Campbell�s
sentence, that he have no contact with his minor son until Campbell has successfully completed sex
offender treatment.� We affirm.
BACKGROUND
����������� �2������� An Information charged Campbell
with first-degree sexual assault of a child, incest, exposing a child to
harmful material, and causing a child to view or listen to sexual
activity.� The charges stemmed from
allegations that Campbell
sexually assaulted his ten-year-old daughter.�
Pursuant to a plea agreement, Campbell
pled guilty to first-degree sexual assault of a child, and the State agreed to
dismiss the remaining charges.� The State
also agreed to recommend a total sentence of no more than twenty years, with
initial confinement of no more than five to seven years.�
����������� �3������� The circuit court sentenced Campbell to thirty years� initial
confinement and ten years� extended supervision.� Campbell
appealed based on the circuit court�s failure to consider mandated sentencing
guidelines.� We agreed and reversed and
remanded the case to the circuit court for resentencing.� See State v. Campbell, No.
2008AP2065-CR, unpublished slip op. (WI App May 5, 2009).�
����������� �4������� At resentencing, the prosecutor informed the court, �The
State�s original agreement � was a recommendation of twenty years, twenty-year
sentence.�� The prosecutor failed to
inform the court of the State�s recommendation that Campbell spend no more than five to seven
years in initial confinement.� Campbell�s attorney did
not object to the State�s omission.�
However, during his sentencing argument, Campbell�s attorney stated, �[T]he plea
bargain in this case was five to seven years in and the balance of twenty on
extended supervision.��
����������� �5������� The court imposed a forty-four year sentence, consisting of
thirty-four years� initial confinement and ten years� extended
supervision.� The court also imposed
various conditions of confinement, one of which prohibits Campbell
from having contact with his minor son until Campbell successfully completes sex offender
treatment and fulfills other requirements.�
Specifically, the court stated:
As far as [your son], no contact with [him].� However, after you participate in and
successfully complete sex offender treatment and counseling, then you may have
contact with [him], if agreed to by your treating professional and written
permission of probation and parole and written consent of [your son�s]
custodial parents or if he is over the age of 18 years.�
����������� �6������� Campbell
filed a postconviction motion challenging the sentence imposed on remand.� Campbell
argued the State breached the plea agreement by failing to recommend initial
confinement of no more than five to seven years.� Campbell also
argued the prosecutor�s argument at the resentencing hearing undermined the
State�s recommendation by implying that Campbell
deserved a longer sentence.� Campbell sought plea
withdrawal or, in the alternative, resentencing before a different judge.� Campbell
also contended the sentencing court lacked legal authority to impose the
conditional no-contact order.� The
circuit court denied Campbell�s
postconviction motion following an evidentiary hearing.� Campbell
now appeals.
DISCUSSION
I.�
Breach of the plea agreement�
����������� �7������� A defendant has a constitutional right to the enforcement of
a negotiated plea agreement.� State
v. Smith, 207 Wis.
2d 258, 271, 558 N.W.2d 379 (1997).�
However, not all conduct that deviates from the precise terms of a plea
agreement constitutes a breach entitling the defendant to relief.� State v.
Deilke, 2004 WI 104, �13, 274 Wis.
2d 595, 682 N.W.2d 945.� Rather, a
defendant who alleges the State has breached a plea agreement must show, by
clear and convincing evidence, that a breach occurred and that the breach is
material and substantial.� Id.� A breach is material and substantial if it
�violates the terms of the agreement and deprives the defendant of a material
and substantial benefit for which he or she bargained.�� State v. Bowers, 2005 WI App 72, �9,
280 Wis. 2d
534, 696 N.W.2d 255.� Because the facts
of this case are undisputed, whether the State materially and substantially
breached the plea agreement is a question of law that we review
independently.� See State v. Wills, 193 Wis. 2d 273, 277, 533 N.W.2d 165 (1995).
����������� �8������� Campbell concedes that,
because his counsel did not object to the prosecutor�s alleged breaches of the
plea agreement, Campbell
has forfeited his right to challenge those breaches directly on appeal.� See State v.
Howard, 2001 WI App 137, ��12, 21, 246 Wis. 2d 475, 630 N.W.2d
244.� Campbell instead contends his counsel�s
failure to object to the breaches constituted ineffective assistance of
counsel.� To establish ineffective
assistance of counsel, a defendant must show both that counsel�s performance
was deficient and that the deficient performance prejudiced the defense.� Strickland v. Washington,
466 U.S.
668, 687 (1984).� If a defendant fails to
prove that a material and substantial breach of the plea agreement occurred,
counsel�s failure to object is not ineffective assistance.� Bowers, 280 Wis. 2d 534, ��20-21.
����������� A. The State�s failure to recommend five to seven years�
initial confinement
����������� �9������� Campbell
first argues the State breached the plea agreement by failing to recommend an
initial confinement term of five to seven years at the resentencing
hearing.� We conclude Campbell has failed to prove that the State�s
conduct materially and substantially breached the plea agreement.� Four factors, in combination, lead us to our
conclusion.
����������� �10����� First, the prosecutor�s recitation of the plea agreement at
resentencing involved a mere omission of one of the agreement�s terms.� The prosecutor correctly stated the State was
recommending a twenty-year sentence, but he neglected to mention its
recommendation that only five to seven of those years be spent in initial
confinement.� The prosecutor did not affirmatively
contradict a term of the plea agreement.�
He did not, for instance, recommend a ten-year term of initial
confinement.
����������� �11����� Second, Campbell�s
counsel clarified the prosecutor�s omission.�
During his sentencing argument, Campbell�s
counsel noted that �the plea bargain in this case was five to seven years in
and the balance of twenty on extended supervision.�� 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 parties,
in combination, accurately informed the court of the plea agreement�s terms.
����������� �12����� Third, the prosecutor did not dispute Campbell�s counsel�s clarification of the
plea agreement.� One would expect the
prosecutor to have spoken up if the State did not agree with the defense�s
statement.� The only reasonable
interpretation of the prosecutor�s silence is that the State agreed with the
sentence recommendation as stated by Campbell�s
attorney.
����������� �13����� Fourth, the court was fully aware of the plea agreement�s
terms� before it resentenced Campbell.� At the hearing on Campbell�s postconviction motion, the court
stated:
It appears clear the district attorney did not mention
in the second sentencing hearing the five to seven years.� But I will place on the record, I knew all
about it.� Before the second sentencing
hearing, I read the transcript from the first hearing.� I read both presentence investigations.� I was well aware.� I also read the plea questionnaire, basically
all the file relating to the first sentencing process.
So I clearly understood
what the plea agreement was whether or not the district attorney said five to
seven years.� This was not like I didn�t
know about it.� I knew about it.� I had it squarely in mind.� I regarded that as the recommendation of the
district attorney�s office.� I understood
it was five to seven years confinement on a twenty-year total sentence.
[Defense counsel] told me
about that too on the record.� I�ve
already said he didn�t have to tell me because I knew it already, but he again
reaffirm[ed] that at the time of the sentencing hearing.�
Before resentencing Campbell, the court
reviewed the original sentencing transcript, as well as the plea questionnaire,
both of which accurately set forth the plea agreement�s terms.� The terms were �reaffirm[ed]� by Campbell�s counsel at the
resentencing hearing.� The court was
clearly aware of the plea agreement�s terms, rendering any breach by the State
merely technical, not material and substantial.
����������� �14����� Campbell argues the court�s
awareness of the plea agreement�s terms is immaterial because �it was the recommendation, not the judge�s mere
awareness of the terms of the agreement, which was the principal benefit for
which Campbell
bargained.�� Campbell�s argument places semantics over
substance.� Moreover, even if the
prosecutor did not explicitly recommend five to seven years of initial
confinement at resentencing, the court �regarded that as the recommendation of
the district attorney�s office.��
�����������
B. The State�s argument at the
resentencing hearing
����������� �15����� Campbell
next argues the State breached the plea agreement because the prosecutor�s
argument at resentencing undermined the State�s sentence recommendation.� According to Campbell,
�Nearly every word of the prosecutor�s resentencing argument created the distinct
impression that the prosecutor believed Campbell
deserved far more than the five-to-seven years of initial confinement he was
obliged to recommend.�
����������� �16����� Campbell
objects to a number of the prosecutor�s remarks.� For instance, the prosecutor commented on the
seriousness of the offense, stating, �I can�t think of a more, short of a
homicide or physically injuring a child, a more horrific offense and more
damaging offense committed against one�s own child.�� The prosecutor also commented on two letters Campbell had sent to his daughter�s therapist, stating
that Campbell
issued a �threat and ultimatum� to the therapist and that Campbell�s tone was
�manipulative� and �devious.�� Commenting
on Campbell�s character, the prosecutor asserted
Campbell
demonstrated �absolutely no remorse,� �no empathy,� and �no accountability for
his behavior.�� Addressing the mental
health information contained in the presentence investigation, the prosecutor
stated, �Clearly, [Campbell
has] some very serious sexuality issues, very serious boundary issues to say
the least.�� Finally, the prosecutor
argued the need to protect the public from Campbell was �very high� and contended, �His
daughter needs to be protected from him for as long as can be humanly
possible.�
����������� �17����� While a prosecutor need not enthusiastically recommend a plea
agreement, he or she �may not render less than a neutral recitation of the
terms of the plea agreement.�� State
v. Poole, 131 Wis.
2d 359, 364, 394 N.W.2d 909 (Ct. App.
1986).� �[T]he State may not accomplish through
indirect means what it promised not to do directly, and it may not covertly
convey to the trial court that a more severe sentence is warranted than that
recommended.�� State v. Hanson, 2000 WI
App 10, �24, 232 Wis.
2d 291, 606 N.W.2d 278.� However, the
State may discuss negative facts about the defendant in order to justify a
recommended sentence within the plea agreement�s parameters.� State v. Naydihor, 2004 WI 43, �24, 270
Wis. 2d 585,
678 N.W.2d 220.� Our supreme court has
observed:
The State must balance its duty to convey relevant
information to the sentencing court against its duty to honor the plea agreement.
�Thus, as the court of appeals has
written, 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 an accused, so long
as the State abides by the plea agreement. �That line is fine indeed.
State v. Williams, 2002
WI 1, �44, 249 Wis.
2d 492, 637 N.W.2d 733 (footnote omitted).
����������� �18����� The prosecutor did not step over the �fine line� in this
case.� At the evidentiary hearing on Campbell�s postconviction
motion, the circuit court noted:
It was a serious case.�
Five to seven years out of somebody�s life is a serious sentence.� A twenty-year sentence is a serious
sentence.� So it could have been
zero.� So for the district attorney to
point out the serious nature of the case is not inconsistent with him arguing
for a twenty-year sentence with five to seven years confinement.� He never asked for more.� He never suggested that I jump the plea
agreement.�
We agree with the circuit court
that the prosecutor�s remarks did not undermine the State�s sentence
recommendation.� Consistent with the plea
agreement, the prosecutor argued for a twenty-year sentence.� The prosecutor�s remarks undoubtedly carried
with them an implied argument for a significant sentence, but, as the trial
court noted, a twenty-year sentence is just that.
����������� �19����� Campbell
has failed to prove that the State materially and substantially breached the
plea agreement.� Consequently, Campbell cannot establish
that his counsel was ineffective by failing to object to the State�s
conduct.� See Bowers, 280 Wis. 2d 534, ��20-21.
II.�
Conditional no-contact order
����������� �20����� Campbell next contends the
circuit court erred by ordering that Campbell
have no contact with his son until Campbell
fulfills certain requirements, including completion of sex offender
treatment.� See supra, �5.�
����������� �21����� Campbell
first argues the court had no legal authority to impose this condition during
his term of initial confinement.� Campbell notes that,
generally, a sentencing court may not impose conditions that apply during the
confinement portion of a defendant�s sentence.�
State v. Gibbons, 71 Wis.
2d 94, 99, 237 N.W.2d 33 (1976).� Campbell argues that,
absent a specific statute granting the court authority to prohibit him from
contacting his son during his initial confinement term, the conditional
no-contact order is invalid.� See Grobarchik v. State, 102 Wis. 2d 461, 467, 307
N.W.2d 170 (1981) (�If the authority to fashion a particular criminal
disposition exists, it must derive from the statutes.�).� Campbell
also contends the no-contact provision is not a valid condition of his extended
supervision because it is not �reasonable and appropriate.�� See
State
v. Koenig, 2003 WI App 12, �7, 259 Wis. 2d 833, 656 N.W.2d 499 (stating
that a sentencing court has broad discretion to impose conditions of extended
supervision, as long as they are reasonable and appropriate).
����������� �22����� We conclude the circuit court had statutory authority to impose
the no-contact provision as a condition of Campbell�s entire sentence under Wis. Stat. � 973.049(2),
which provides:
When a court imposes a sentence on an individual or
places an individual on probation for the conviction of a crime, the court may prohibit the individual from
contacting victims of, or co-actors in, a crime considered at sentencing during any part of the individual�s sentence
or period of probation if the court determines that the prohibition would
be in the interest of public protection. �For
purposes of the prohibition, the court may determine who are the victims of any
crime considered at sentencing.�
(Emphasis added.)
The
interpretation of a statute is a matter of law that we review
independently.� State v. Fischer, 2010 WI
6, �15, 322 Wis.
2d 265, 778 N.W.2d 629.� Statutory
interpretation begins with the language of the statute. �State ex rel. Kalal v. Circuit Court for
Dane Cnty., 2004 WI 58, �45, 271 Wis. 2d 633, 681 N.W.2d 110. �If the meaning of the words in the statute is
plain, the analysis goes no further.� Id.�
����������� �23����� Wisconsin Stat. � 973.049(2)
plainly allows a sentencing court to prohibit a defendant from contacting
victims of a crime considered at sentencing.�
The statute clearly states the court may impose this prohibition during
any part of the defendant�s sentence.� Id.� The statute also grants the court discretion
to determine who is a victim of a crime considered at sentencing.� Id.�
����������� �24����� Thus, the operative question is whether the circuit court
properly exercised its discretion when it determined Campbell�s son was a
�victim� of the crime for which Campbell was sentenced.� The court reasoned:
[A]ny time one child in the family is touched as a
victim I think it affects the entire family in terms of the entire family
having issues to deal with, and just the fact that the father is a sex
offender, regulating that contact in an appropriate fashion I think is a
legitimate goal �.
While the court did not
explicitly state the facts it utilized from the record or the legal standard it
applied, those omissions do not necessarily render its decision erroneous. �We may independently search the record to
support the court�s exercise of discretion. �Stan�s Lumber, Inc. v. Fleming, 196 Wis. 2d 554, 573, 538
N.W.2d 849 (Ct. App. 1995).
����������� �25����� Campbell
was convicted of first-degree sexual assault of a child based on allegations
that he abused his daughter.� The police
reports attached to the criminal complaint established that Campbell exposed his son to the sexual abuse
of his daughter.� Campbell�s
daughter told a social worker that Campbell
sexually assaulted her while her little brother was home.� She also told the social worker that her
little brother would sometimes come into the room while the sexual assault was
occurring.�
����������� �26����� The potential emotional harm associated with observing Campbell�s sexual
misconduct is sufficient to make his son a victim of the crime for purposes of Wis. Stat. � 973.049(2).� Furthermore, we agree with the circuit court
that, by allowing his son to witness the sexual assaults, Campbell has put his son at risk of
�modeling� this behavior and growing up to become sexually abusive.� Accordingly, because the circuit court could
reasonably conclude Campbell�s son was a victim of Campbell�s crime,
� 973.049(2) gave the circuit court legal authority to impose the
no-contact provision as a condition of Campbell�s entire sentence, both the
initial confinement and extended supervision portions.
����������� �27����� The State cites a number of other facts which it contends make Campbell�s son a victim of
the crime for purposes of Wis. Stat. � 973.049(2).� For instance, the State notes that Campbell�s sisters told police Campbell regularly left sex toys and
pornographic materials around his apartment, in plain view and within reach of
the children.� The State also points out
that Campbell
took both children with him to shop for sex toys.� Additionally, when police searched Campbell�s apartment they
found knives, dangerous chemicals, an uncased shotgun, and a fuel canister
containing �Coleman fuel,� all within the children�s reach.�
����������� �28����� However, the statute is restricted to a victim �of any crime
considered at sentencing.�� The facts
cited by the State, while indicative of disgusting conduct, are not related to
the crime for which Campbell
was sentenced�first-degree sexual assault of his daughter.� Thus, that Campbell
exposed his son to knives, chemicals, and sexually explicit materials does not make his son a victim of the crime for which Campbell was
sentenced.� Rather, Campbell�s
son is a victim of that crime because he witnessed the abuse of Campbell�s daughter.
����������� �29����� At the end of his brief, Campbell notes that his relationship
with his son is �protected by the Due Process clause� and that �[f]or all
practical purposes, the court�s �no-contact� order will essentially terminate
Campbell�s parental rights � without affording [him] the due process
protections normally associated with the termination of one�s parental
rights.�� To the extent Campbell is arguing that the circuit court
violated his constitutional right to due process, his argument is undeveloped
and we decline to address it.� See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992).� Additionally, Campbell did not raise this argument at the
trial court level, and we generally do not consider issues raised for the first
time on appeal.� See Evjen v. Evjen, 171 Wis. 2d 677, 688, 492
N.W.2d 361 (Ct. App. 1992).�
����������������������� By the Court.�Judgment and order affirmed.
�����������������������