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Guilty Plea Colloquy – Plea Questionnaire; Plea Bargain – Breach: Waiver Doctrine

State v. Henry Edward Reed, Jr., 2009AP3149-CR,  District 1, 1/11/11

court of appeals decision (3-judge, not recommended for publication); for Reed: Basil M. Loeb; case activity; Reed BiC; State Resp.

Guilty Plea Colloquy – Plea Questionnaire

Reed’s claim that he didn’t understand the significance of read-in offenses is defeated by their coverage in the plea questionnaire, and the plea court’s eliciting “that Reed had not only read the form, understood everything on the form, and signed it, but also that he had gone over the form with his attorney prior to the plea hearing,” ¶17. Moreover, at sentencing he waived any such argument by saying, after “the trial court clearly and completely explained the potential impact of the read-ins … that he understood the impact of the read-ins” and that he wanted to proceed with the sentencing, ¶19.

State v. Paske, 121 Wis. 2d 471, 360 N.W.2d 695 (Ct. App. 1984), cited with approval:

¶21      As in Paske, we note that Reed had full knowledge of the effect of the read-ins when he reaffirmed his decision to continue with sentencing.  By opting to move forward with sentencing after explicitly stating that he understood the effects of the read-ins, Reed waived his right to argue that he did not intelligently enter his plea.

Plea Bargain – Breach: Waiver Doctrine

Failure to object to plea bargain breach after basis for the claim is known, constitutes waiver of the objection, ¶¶24-25, citing State v. Smith, 153 Wis. 2d 739, 741, 451 N.W.2d 794 (Ct. App. 1989). Reed had time to consult with counsel after the breach was revealed, and the trial court “confirmed several times that Reed wanted to continue with sentencing despite the State’s breach”; thus, Reed’s election to continue with sentencing waived the objection, ¶¶26-27.

Implicit in the court’s analysis: the defendant’s personal assent to overlook a breach is a constiutional imperative. E..g, 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.

Failure to object does constitute waiver and the breach must later be raised as ineffective assistance of counsel, but without the defendant’s personal assent to this omission, counsel’s failure to object necessarily establishes ineffective assistance, at least where the breach is material. E.g., State v. Smith, 207 Wis.2d 258, 558 N.W.2d 379 (1997) (failure to object to clear breach “not reasonable conduct within professional norms and constitutes deficient performance,” ¶26, “and always results in prejudice to the defendant,” ¶38.

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