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Prosecutor’s remarks didn’t imply that state was distancing itself from its sentencing recommendation

State v. Warren E. Schabow, 2014AP1254-CR, District 3, 7/7/15 (not recommended for publication); case activity (including briefs)

Based on the entire sentencing proceeding, the state didn’t breach the plea agreement because the prosecutor’s remarks did not insinuate the state was distancing itself from, or casting doubt on, its own sentencing recommendation.

The state agreed to cap its sentencing recommendation at two years of confinement and four years of extended supervision. The prosecutor made that recommendation, but said the two years was “the very minimum that should be considered.” The prosecutor, who spoke after the victim made a statement, also referred to many negative facts about Schabow’s character. (¶¶3-11). The court rejects Schabow’s arguments that the prosecutor’s remarks constituted a breach in light of State v. Williams, 2002 WI 1, 249 Wis. 2d 492, 637 N.W.2d 733, State v. Sprang, 2004 WI App 121, 274 Wis. 2d 784, 683 N.W.2d 522, and State v. Naydihor, 2004 WI 43, 270 Wis. 2d 585, 678 N.W.2d 220.

First, even though the prosecutor’s comments focusing on Schabow’s negative characteristics came after the victim asked for a five-to-ten year sentence, that doesn’t mean the prosecutor was implicitly endorsing the victim’s recommendation:

¶22      The sentencing transcript belies Schabow’s argument. As Schabow concedes, the prosecutor did not so much as mention the victim’s sentencing recommendation. The prosecutor did refer to the victim’s testimony twice, but only in the context of expressing that he hoped Schabow better understood the gravity of the offenses following the victim’s testimony, and affirming that the victim accurately described the nature and effect of the offenses. Schabow relies on the sequencing of the testimony as the sole nexus between the victim’s sentencing recommendation and the prosecutor’s remarks, and we conclude this alone is insufficient to establish a breach of the plea agreement.

Nor did the recitation of the negative facts about Schabow constitute a breach:

¶26      Here, as in Naydihor, “the prosecutor’s comments supported the recommended sentence and were relevant to the pertinent sentencing factors the court was required to consider.” Id., ¶30. The prosecutor, pursuant to the plea agreement, was recommending a substantial six-year sentence, consisting of two years’ initial confinement and four years’ extended supervision. His comments were a reasonable and permissible attempt to secure the recommended sentence. The prosecutor specifically tied each of his comments to a primary sentencing factor, namely Schabow’s character, the nature of the crimes, and the need to protect the public. See id., ¶26. Schabow does not argue any of the topics the prosecutor mentioned were irrelevant to the sentencing inquiry. Although Schabow no doubt wishes the prosecutor had kept quiet about his previous criminal history and other matters, any attempt to shield the sentencing court from relevant information is contrary to public policy. See Williams, 249 Wis. 2d 492, ¶43; State v. Ferguson, 166 Wis. 2d 317, 324, 479 N.W.2d 241 (Ct. App. 1991).

Moreover, while the State is not “obligated to say something nice or positive about the defendant in order to avoid breaching a plea agreement,” Naydihor, 270 Wis. 2d 585, ¶30, in this case the prosecutor actually did refer to some positive aspects of Schabow’s character. (¶27).

Finally, the prosecutor’s remark that two years was the “very minimum” confinement necessary wasn’t a material and substantial breach given the overall context of the comment. (¶¶29-30).

Trial counsel didn’t object to the prosecutor’s remarks, so Schabow had to raise this issue via an ineffective assistance of counsel claim. (¶18). The court criticizes Schabow’s brief for omitting an argument regarding ineffective assistance and focusing exclusively on whether there was a material and substantial breach and comes perilously close to affirming because Schabow’s argument is undeveloped. (Id.).

Certainly, a brief in a case like this should set out and address the relevant IAC standard, even though whether there’s a material and substantial breach is the $64,000 question—for if there’s no breach, trial counsel isn’t deficient for not objecting. (And if there is a breach, counsel is deficient and prejudice is automatic, State v. Smith, 207 Wis. 2d 258, 281-82, 558 N.W.2d 379 (1997)). But there is another question in play when trial counsel doesn’t object to an arguable breach, and that is whether counsel decided not to object for strategic reasons after consultation with the defendant, Sprang, 274 Wis. 2d 784, ¶¶25-29. Schabow’s brief doesn’t discuss this aspect of the IAC claim at all.

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