Tucker pleaded guilty pursuant to plea bargain, which terms included continuation of his release on bond and compliance with same. After Tucker failed to appear at sentencing, necessitating his arrest on a bench warrant and issuance of a new charge of bail jumping, the State informed counsel it was no longer bound by the agreement, given Tucker’s breach by failure to appear; the State proceeded to advocate a length of confinement greater than that contemplated by the now-rescinded agreement. On postconviction motion, Tucker argued that counsel was ineffective for failing to contest the State’s unilateral rescission – the agreement, Tucker argued, didn’t include continued compliance with the bond; and in any event, Tucker should have been entitled to a hearing on whether the breach, if there was one, was material and substantial. The trial court denied the motion after a hearing at which trial counsel testified, and the court now affirms.
¶11 In summary, the record supports the circuit court’s finding that all parties to the plea agreement understood Tucker’s continued compliance with his bond conditions to be part of the plea agreement, and not a unilateral amendment to that agreement by the State. Tucker’s trial counsel could not be deficient for failing to raise an objection over the State’s alleged unilateral amendment of the plea agreement when that simply was not the case. Accordingly, we conclude that Tucker has not shown that defense counsel was deficient in failing to raise any objection relating to the issue of whether bond compliance was a part of the plea agreement.
¶12 Tucker contends that his trial counsel was ineffective for failing to object to the circuit court’s failure to hold an evidentiary hearing to determine first whether Tucker breached the plea agreement, and second, whether any breach on his part was material and substantial. Tucker claims that under Rivest, an evidentiary hearing on those issues is always required and that in order for the State to be released from any of its obligations under the plea agreement, the court must make a finding on the record that the agreement was breached by Tucker and that his breach was material and substantial. According to Tucker, “only the court may decide if the defendant ‘screwed up’ and if that ‘screw up’ amounts to a material and substantial breach.” We disagree.
¶14 Rivest, however, concerned a situation in which the State and the defendant disputed whether the defendant breached the plea agreement. In the present case, there was no such dispute. Both the State and Tucker’s trial counsel agreed that by failing to appear at the November 21, 2008 sentencing hearing and, as a result, being charged with felony bail jumping, Tucker violated the conditions of his bond, and therefore the plea agreement. Both the State and defense counsel agreed that Tucker’s breach of the plea agreement was material and substantial enough that the State was no longer bound by the originally agreed upon fifteen year sentencing recommendation cap. We find no support in Rivest, and Tucker cites us to none, for the proposition that a circuit court must hold an evidentiary hearing to determine whether a defendant has materially and substantially breached a plea agreement when the defendant concedes such a breach.
¶16 Furthermore, even if a hearing under Rivest would have been warranted, the circuit court found that Tucker’s trial counsel had a justifiable reason for not seeking a hearing. The court found that Tucker’s trial counsel testified that he believed that seeking to withdraw Tucker’s pleas in their entirety was not in Tucker’s best interest because there were other charges against Tucker that were dismissed as part of the plea. However, if plea negotiations were reopened or Tucker’s plea was withdrawn, the State might seek to proceed with those charges against Tucker. We agree with the circuit court that counsel was not deficient for proceeding in a manner counsel perceived to be in Tucker’s best interest.
Even if the plea agreement hadn’t expressly included bond-compliance as a term, Tucker’s failure to appear probably would have been seen as a substantial and material breach. If nothing else, his commission of a new crime (bail-jumping) probably was enough in and of itself to support prosecutorial withdrawal from the agreement. E.g., State v. Windom, 169 Wis. 2d 341, 350-52, 485 N.W.2d 832 (Ct. App. 1992). Tucker, then, had a tough sell at best. And an intrinsically weak argument lost all steam, when trial counsel testified that post-plea release on bond was part of the negotiations, with Tucker quite understanding that his violating terms of the bind “would affect … the sentencing cap agreed to by the State,” ¶9. With these facts in mind, see, State v. Zuniga, 2002 WI App 233, 257 Wis. 2d 625, 652 N.W.2d 423 (“In our view, at a bond hearing which occurred prior to sentencing, the parties agreed to amend the sentencing proposal to allow the State to offer a harsher sentence if Zuniga engaged in misconduct during his release. At the sentencing hearing, the State alleged that Zuniga had indeed violated the conditions of release … Under these circumstances, the State’s new sentencing recommendation was clearly within the scope of the amended plea agreement.”); State v. Paske, 121 Wis. 2d 471, 475, 360 N.W.2d 695 (Ct. App. 1984) (“The state’s proposed modification to the executory contract with Paske was unequivocally consented to and accepted by Paske …”).
Note that where the State does unilaterally reconfigure the terms of the agreement without the defendant’s personal assent, the situation is much different, e.g., State v. Liukonen, 2004 WI App 157, ¶ 21, 276 Wis. 2d 64, 686 N.W.2d 689 (“when a prosecutor breaches a plea agreement by arguing for a harsher sentence than the one the prosecutor agreed to recommend, the agreement has ‘morphed’ into a new agreement. Thus, defense counsel must consult with the defendant and receive verification that the defendant wishes to proceed with the ‘new’ plea agreement.”); State v. Woods, 173 Wis. 2d 129, 141, 496 N.W.2d 144 (Ct. App. 1992) (“a defendant’s attorney cannot renegotiate the plea without the knowledge or consent of his or her client”). It is no answer to say that the State hasn’t breach the agreement, the defendant did; the point is, a new agreement which the defendant did not bargain for calls into question voluntariness of the plea. Doesn’t seem to be what we have here, but the principle is worth keeping in mind.