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Defense win: state breached plea by asking for more prison than it had agreed to

State v. Desmond Myers LaPean, 2019AP1448, 7/14/20, District 3 (not recommended for publication); case activity (including briefs)

LaPean pleaded to a sexual assault of a child with an agreement that the state would cap its recommendation at 10 years of initial confinement and 10 of extended supervision. But at sentencing, the state first recommended 12 and 12. After defense counsel’s objection, the state instead requested 10 and 14. Counsel didn’t notice the second breach, but the prosecutor eventually did, telling the court the agreement was for 10 and 10. The court gave 12 and 10.

LaPean filed a postconviction motion raising those plea-bargain breaches and alleging his counsel was ineffective in two ways. First, counsel didn’t object to the second breach. Second, when, during the sentencing hearing, he was given a chance to consult with LaPean, counsel misinformed him about what remedies were available for the breaches–he answered “no” when LaPean asked whether he could be sentenced by a different judge.

The circuit court denied the postconviction motion, holding that the prosecutor’s admissions that the agreement was for 10 and 10 rendered her earlier recommendations for more than that not “material and substantial” breaches.

The court of appeals reverses. It looks chiefly to three cases: State v. Knox, 213 Wis. 2d 318, 570 N.W.2d 599 (Ct. App. 1997), State v. Bowers, 2005 WI App 72, ¶9, 280 Wis. 2d 534, 696 N.W.2d 255, and State v. Williams, 2002 WI 1, ¶20, 249 Wis. 2d 492, 637 N.W.2d 733. Each case involved a prosecutor’s misstatement of the agreed-upon recommended sentence. In Knox and Bowers, the court of appeals held the misstatements were cured by the prosecutor’s prompt correction. This case, though,  the court says, is more like Williams, where the defendant received a new sentencing. The prosecutor here recommended the higher sentence twice, and specifically argued that a lesser one (i.e., the one it had agreed to recommend), would be insufficient. (She also called LaPean a “monster.”) What’s more, when the prosecutor did correct herself, she

qualified her correction by noting that the State was capping  its sentence  recommendation at twenty years “due to the plea agreement.” That qualification suggested that the prosecutor was only recommending a twenty-year sentence because the plea agreement required her to do so, and that she did not actually believe a twenty-year sentence was appropriate. Although the State need not correct a misstated sentence recommendation “forcefully or enthusiastically,” see Bowers, 280 Wis. 2d 534, ¶12, the State may not make the correction in such a manner that all but tells the court it is only doing so because of its obligation under the plea agreement, see State v. Liukonen, 2004 WI App 157, ¶16, 276 Wis. 2d 64, 686 N.W.2d 689.

(¶33). The court goes on to reject several other arguments from the state: that the breaches were not substantial because the court new the real deal (¶39, ¶42), or because the second one pertained only to extended supervision (¶¶40-41), or because they were inadvertent (¶43).

Under State v. Smith, 207 Wis. 2d 258, 272, 558 N.W.2d 379 (1997), failure to object to a material and substantial plea breach is always prejudicial, absent a valid strategic reason. (And State v. Sprang, 2004 WI App 121, ¶29, 274 Wis. 2d 784, 683 N.W.2d 522 requires any such strategic decision to be made in consultation with the defendant). The state argues here that Smith is not good law after Puckett v. United States, 556 U.S. 129 (2009). The court doesn’t reach that argument, holding that even if LaPean needs to make some additional showing of prejudice, he’s done so here, because his lawyer misinformed him that he couldn’t get resentencing before a different judge, a remedy he was eager to pursue.

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