In a decision that plows no new legal ground, a divided supreme court holds that a prosecutor’s remarks at sentencing did not breach the plea agreement, but were instead within the proper bounds of argument in support of a permitted recommendation for imprisonment. Because the prosecutor didn’t breach the plea agreement, the court doesn’t decide the primary issue presented for review: Whether the court should overrule State v. Sprang, 2004 WI App 121, ¶29, 274 Wis. 2d 784, 683 N.W.2d 522, which held that if defense counsel does not consult with the defendant when foregoing an objection to a breach of the plea agreement, counsel performs deficiently because that is “tantamount to entering a renegotiated plea agreement without [the defendant’s] knowledge or consent.”
Bokenyi entered a plea to various charges which exposed him to a total of 26 years of imprisonment, 14 of which could have been confinement. (¶103). Under the plea agreement the state was limited to asking for “the high-end range of the PSI.” (¶13) The PSI recommended three to four years of confinement and three to four years of extended supervision on one count and consecutive probation on the other counts. (¶14). At sentencing the prosecutor asked for four years of confinement and four years of ES, but he also: 1) recited the maximum penalties for Bokenyi’s convictions and said the felony classifications for those offenses showed their extreme seriousness but did not “really do them justice in terms of how serious this was”; 2) endorsed the victim’s request that she and her son be able to live without fear of Bokenyi being released from custody until her 11-year-old son reached adulthood; and 3) discussed a “frightening” jail incident as showing “an absolute necessity to protect the public” from Bokenyi. (¶¶16-21, 119, 128, 135-36).
It’s well-settled that “end runs” around a plea agreement are prohibited: “The State may not accomplish by 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. Williams, 2002 WI 1, ¶42, 249 Wis. 2d 492, 637 N.W.2d 733; State v. Hanson, 2000 WI App 10, ¶24, 232 Wis. 2d 291, 606 N.W.2d 278. Applying that standard here, the court concludes the prosecutor’s remarks did not undermine the recommendation he was required; instead, his comments were acceptable references to proper factors for consideration at sentencing and were relevant to the state’s request for imprisonment of eight years (four in, four out). The prosecutor’s comments about penalty classifications “not doing the crimes justice” simply referred to the relevant consideration of the seriousness of Bokenyi’s conduct in this particular case. (¶¶48-56). The prosecutor’s reference to the victim’s statement was not improper because the victim’s statements and wishes are “very important” in the criminal justice system generally (¶58) and play an important role in sentencing in particular (¶¶61-64), and in any event the victim’s wishes were consistent with the total eight-year sentencing recommendation, which would help protect her son till he turned 18. (¶¶65-70). Finally, even if it described the defendant in harsh terms, the reference to the jail incident simply supplied the court with relevant information about the need to protect the public, which is a proper sentencing factor—and it was immediately followed by the prosecutor endorsing a sentencing recommendation consistent with the plea agreement. (¶¶72-78).
A dissent by Justice Prosser (joined by Chief Justice Abrahamson and Justice Bradley) disputes the majority point by point. First, the dissent says, by listing the maximum terms of imprisonment and then immediately stating the felony classifications do not sufficiently indicate the seriousness of the offenses, the prosecutor implied Bokenyi deserved more than the maximum sentences for the counts to which he pled: “[T]he prosecutor indicated … that the [classification] system’s penalty structure was ‘not doing justice to how serious the conduct was in this particular case.’ If the system’s classification structure is not adequate, how can a sentence of confinement of less than a third of the maximum authorized by the system be adequate?” (¶126). Second, the dissent observes the prosecutor did not merely refer to the victim’s statement; he agreed with it. (¶129). “While victims’ rights are unassailably important, they do not eclipse the rights of defendants. The Wisconsin Constitution protects victims’ rights, but it also explicitly states, ‘Nothing in this section, or in any statute enacted pursuant to this section, shall limit any right of the accused which may be provided by law.’ Wis. Const. art. I, § 9m. … Thus, the prosecutor must take care to avoid endorsing a victim’s statement that is inconsistent with a plea agreement.” (¶134). Finally, the dissent notes the discussion of the jail incident came after a description of the crimes charged, of a past incident in which Bokenyi threatened his wife and police with a firearm, and of Bokenyi’s homicidal thoughts and mental issues, all of which created “an unsettling incongruity” between Bokenyi’s conduct and the need to protect the public, on one hand, and the recommendation of only four years of initial confinement, on the other. (¶139). “Thus, the prosecutor’s sentencing recommendation did not come with a bang, with a crescendo; it came with a whimper.” (¶140).
Chief Justice Abrahamson also writes separately to say review should have been dismissed, as it only applies settled law to undisputed facts and doesn’t reach the validity of Sprang, which was the issue that met the criteria for supreme court review. (¶¶80-86). Coincidentally, the majority opinion in Wantland, decided the same day as this case, criticizes the Chief’s dissent in that case as addressing an issue “subject to long settled law” and therefore one that would constitute “mere error correction inappropriate for our review” (2014 WI 58, ¶2 n.3). The majority expresses no concern about the fact it is engaging in “mere error correction” in this case.
If the decision doesn’t change the standards for assessing whether the prosecutor breached a plea agreement, does it blunt those standards and diminish defendants’ ability to get the benefits they bargain for? Justice Prosser expresses that concern at the conclusion of his very effective dismantling of the majority’s superficial analysis (¶150), and the Chief Justice aptly notes the majority opinion emphasizes only the relevance to sentencing of the prosecutor’s remarks, “not the prosecutor’s duty to honor the plea agreement by effectively communicating that the prosecutor believed the plea agreement’s recommended sentence was appropriate.” (¶93). On the other hand, claims like Bokenyi’s are highly fact-dependent, making this just one more in a line of not always consistent decisions instead of the final word on the topic.