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Plea Bargains – Breach: By Prosecutor, Recommending Lengthy Terms of Supervision – Non-Material Where Confinement Defendant’s Main Concern

State v. David C. Quarzenski, 2007 WI APP 212, PFR filed 9/21/07
For Quarzenski: Martin E. Kohler, Christopher M. Eippert

Issue: Whether counsel was ineffective for failing to object to the State’s sentencing recommendation where: under the plea bargain the State agreed to and in fact “capped” its recommendation on several counts to a total of “7 years in prison” but “additionally asked for an extensive period of extended supervision and consecutive long-term probation.”

Holding: The State did not materially and substantially breach the agreement, and counsel therefore wasn’t ineffective, because “the parties’ plea agreement regarding the State’s sentencing recommendation was targeted at the period of Quarzenski’s confinement, not other potential components of the sentences,” ¶2.

¶23 The circuit court held that the State abided by the plea agreement and therefore trial counsel were not ineffective for failing to object. We agree. The substantial period of confinement that Quarzenski faced lends credence to Glasbrenner’s testimony that Quarzenski was concerned only with the confinement portions of the sentences he would receive. Thus, the plea negotiations were conducted from that perspective and the ultimate agreement spoke only to that concern. Therefore, trial counsel had no basis to object when the State made its sentencing recommendation . As noted, we afford trial counsel’s performance great deference, and examine the case from counsel’s perspective at the time, and avoid determinations based on hindsight. Johnson, 153 Wis. 2d at 127. Also as noted, when a circuit court ’s conclusions are based on the court’s credibility findings, we accept those determinations. Jacobson, 222 Wis. 2d at 390. Here, although not expressly addressing the credibility of Glasbrenner’s and Cafferty’s testimony, it is obvious that the court found both credible since the court ruled in favor of the State, which relied on their testimony. If the court does not make express findings on credibility, we assume it made implicit findings to that effect when analyzing the evidence. Id. We see no basis for disturbing the circuit court’s determinations. The State did not breach the plea agreement, and therefore trial counsel were not ineffective for failing to object to the State’s sentencing recommendation.

Much mischief-making potential in this seemingly mundane, fact-specific little case. There’s discussion about how Quarzenski’s “primary goal was to limit” prison time, that he didn’t care a whit about extended supervision or probation (¶11). But there’s not a single word that he knew, let alone agreed, that the State could and would recommend substantial periods of time on extended supervision and probation. Not a word. As a practical matter, then, what the court of appeals has done is delegate to counsel the authority to determine key provisions of the plea bargain. We can debate whether that approach is correct as a matter of law, but that it’s not especially wise practice should be incontestable.This leads to another, related concern. Used to be that failure to object to a plea bargain breach could be saved by typical IAC analysis such as inability to show “prejudice,” State v. Smith, 198 Wis. 2d 820 (Ct. App. 1995); but the court of appeals’ approach in that case was roundly rejected on review, State v. Smith, 207 Wis.2d 259, 558 N.W.2d 379 (1997):

¶25 Here, however, Smith’s claim is based on a failure to object to adversary counsel’s breach of a negotiated agreement. No further information or investigation was required to enable defense counsel to offer an objection at the sentencing hearing. Moreover, the failure to object flew in the face of the “informed strategic choice” made by Smith earlier when he entered into the plea agreement. The failure to object constituted a breakdown in the adversarial system.

Post-Smith, then, counsel can’t posit “tactical” reasons to justify failure to object to a breach—the issue, instead, is whether the defendant knowingly signed off on the agreement, not whether counsel thought it was in the client’s best interests, a point made clear in State v. Brian W. Sprang, 2004 WI App 121:

¶27 We agree with the State that defense counsel had valid strategic reasons for choosing not to object to the prosecutor’s remarks. However, we have already concluded that those remarks constituted a breach of the negotiated plea agreement. When defense counsel made the decision to forego an objection, he did not consult with Sprang regarding this new development or seek Sprang’s opinion in the matter. Thus, Sprang had no input into a situation where the original plea agreement, which limited the State to arguing for conditions of probation, had morphed into one in which the State could suggest that the court impose a prison sentence without probation. As such, the plea agreement to which Sprang pled no longer existed.

The danger, then, is that this new case represents a bit of “push-back” by the court of appeals, an effort to restore as much of its prior, rejected approach as possible. Recall that there is nothing in this opinion to suggest that Quarzenski himself agreed to the challenged terms of the State’s allocution. In effect, the court appears to be saying that counsel is authorized to agree to certain critical terms of the agreement, whether or not the client agrees to them, so long as the client’s “primary goal” is satisfied. Sounds an awful lot like a return to an analysis of plea bargain breach that revolves around “tactical” considerations. If this is indeed a trend, it ought to be resisted, but the best expedient is the obvious one: just make sure all the terms are spelled out.

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