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Plea Bargains — Breach: By Defendant – Failure to Appear at Sentencing – Renegotiation: Defendant’s Assent, not Knowledge of Specific Performance, Required

State v. Brad S. Miller, 2005 WI App 114
For Miller: William E. Schmaal, SPD, Madison Appellate


¶8        In State v. Sprang, 2004 WI App 121, 274 Wis. 2d 784, 683 N.W.2d 522, we explained that when a prosecutor breaches a plea agreement by arguing for a harsher sentence than the one the prosecutor agreed to recommend and defense counsel fails to object, the agreement has “morphed” into a new agreement.  See id., ¶27; see also State v. Liukonen, 2004 WI App 157, ¶21, 276 Wis. 2d 64, 686 N.W.2d 689 (reaffirming the principles articulated in Sprang).  Thus, defense counsel must consult with the defendant and receive verification that the defendant wishes to proceed with the “new” plea agreement. See Sprang, 274 Wis. 2d 784, ¶28; see also Liukonen, 276 Wis. 2d 64, ¶21. The Sprang decision teaches that even a strategically sound decision by defense counsel to forego an objection to a prosecutor’s breach without consulting with the defendant constitutes deficient performance because it is “tantamount to entering a renegotiated plea agreement without [the defendant’s] knowledge or consent.” Sprang, 274 Wis. 2d 784, ¶29; see also Liukonen, 276 Wis. 2d 64, ¶21.  

¶9        The transcript from the postconviction motion hearing indicates that Miller’s counsel had a strategically sound reason for not objecting to the State’s alleged breach. He had essentially concluded that Miller would not be able to prevail on a breach of plea agreement claim because of Miller’s criminal conduct in Iowa prior to sentencing. See State v. Windom, 169 Wis. 2d 341, 351-52, 485 N.W.2d 832 (Ct. App. 1992) (the fact that the defendant violated the terms of his probation was a “new and additional” factor that the State was entitled to consider in the subsequent and separate sentence hearing); State v. Giebler, 591 P.2d 465, 467 (Wash. Ct. App. 1979) (defendant cannot rely upon an agreement when he commits another offense while awaiting sentencing); United States v. Read, 778 F.2d 1437, 1441-42 (9th Cir. 1985) (promise to “take no position on what sentence should be imposed” does not cover defendant’s postplea criminality). The transcript further reveals that, during the sentencing hearing, Miller’s counsel consulted with him about whether he wished to withdraw his plea or proceed with the sentencing hearing based on the “new” plea agreement. The transcript establishes that Miller consented to continuing with the sentencing hearing. Because Miller’s counsel had a sufficient strategic reason for not objecting to the “new” agreement and he consulted with Miller and secured his consent to proceed, his performance was not deficient. See Sprang, 274 Wis. 2d 784, ¶¶27-30; Liukonen, 276 Wis. 2d 64, ¶¶20-22. Accordingly, Miller’s ineffective assistance of counsel challenge must fail.

It’s almost as if ¶¶ 8 and 9 are from two different opinions. Nothing at all wrong with the statement of principles in ¶8: even a strategically sound basis can’t justify not objecting to prosecutorial recommendation not ratified by the agreement (for the simple reason that a plea agreement affects voluntariness of a plea, something personal to the defendant and therefore outside the realm of strategy). But then the court proceeds to say, in ¶9, “that Miller’s counsel had a strategically sound reason for not objecting to the State’s alleged breach.” What gives? Significantly, Miller’s trial attorney consulted with him about his right to withdraw the plea, once it became apparent that the prosecutor was changing its terms, ¶5. What counsel did not do was inform Miller that he had a right of specific performance, and it was that omission that was “strategic,” at least in the sense that counsel perceived no such right existed because Miller himself had breached the agreement by absconding before the schedule sentencing. Id. More particularly, what the court may have meant was simply that counsel reasonably discerned that, given Windom, Miller didn’t have a specific performance leg to stand on, and therefore didn’t need to be told about a right he couldn’t invoke. The holding, then, might not be so bad with that in mind (though the mention of “strategy” in this context is probably misleading). It’s worth remembering, though, that a plea agreement can’t be unilaterally terminated; defendant’s breach must be proven by the State and found by the court after proper hearing, State v. Rivest, 106 Wis.2d 406, 316 N.W.2d 395 (1982).


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