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State v. Robert L. Duckett, 2010 WI App 44

court of appeals decision; for Duckett: Michael K. Gould, SPD, Milwaukee Appellate; BiC; Resp. Br.; Reply Br.

Guilty Pleas – Breach – Lack of Contemporaneous Objection
Failure to object contemporaneously forfeits right of review of subsequently-asserted plea bargain breach. The issue therefore is reviewable only “in the context of a claim for ineffective assistance of counsel,” ¶6.

The court is fond of making this pronouncement, less inclined to explain its limits. IAC claims, of course are 2-part inquiries, deficient performance and prejudice. But violation of a plea bargain taints voluntariness of the plea, in other words, verges well into territory not subject to tactical considerations. Thus, where breach has occurred, failure to object is necessarily both deficient performance and prejudicial, State v. Smith, 207 Wis.2d 259, ¶25, 558 N.W.2d 379 (1997) (“failure to object constituted a breakdown in the adversarial system,” i.e., signification of structural error); compare, State v. Brian W. Sprang, 2004 WI App 121, ¶27 (“counsel’s “valid strategic reasons for choosing not to object to the prosecutor’s remarks” couldn’t overcome lack of defendant’s personal input). This is all fairly obvious, but it’d be nice if the court would include it with the rest of its forfeiture-IAC boilerplate.

Guilty Pleas – Breach: By Prosecutor – No “Indirect” Breach by Reference to PSI
Prosecutor didn’t indirectly breach the plea agreement, which called for prison without specific recommendation, by referencing PSI recommendation of specified amount of confinement and by describing defendant’s statements in PSI as “shocking”; State v. John D. Williams, 2002 WI 1, distinguished:

¶14      This case is easily distinguishable from Williams. First, unlike in Williams where the State had agreed to recommend probation, here, the State agreed to request a PSI report and to recommend prison. The State was permitted to support its prison recommendation with facts from the PSI report, the file, and other sources describing the details of the crime, aggravating factors, and Duckett’s criminal record. In Williams, the State, necessarily, had to tread more carefully because it had agreed to recommend probation, not prison. The State’s emphasis on the negative details of the crime and aggravating factors undermined that agreement and worked to deprive Williams of the benefit of his bargain for a probation recommendation. That is not the case here because the parties agreed that the State would recommend prison.

¶15      Further, in Williams, the State recited how its impressions of the defendant changed after reading the PSI report and interviewing the defendant’s ex-wife. …

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