Review of an unpublished, per curiam court of appeals decision; case activity; State’s petition for review
Issues (from the State’s petition):
1. Did the prosecutor’s sentencing argument breach the plea agreement by undermining the agreed-upon sentencing recommendation?2. Was defense counsel ineffective for failing to object to the alleged breach of the plea agreement?3. In State v. Sprang, 2004 WI App 121, 274 Wis. 2d 784, 683 N.W.2d 522, the court of appeals held that when defense counsel does not consult with the defendant when foregoing an objection to a breach of the plea agreement, counsel performs deficiently because that is “tantamount to entering a renegotiated plea agreement without [the defendant’s] knowledge or consent.” Id., ¶29. Should this court overrule the court of appeals’ decision in Sprang?
So, you ask, what were the problematic sentencing remarks? (1) The DA recited the maximum penalties for Bokenyi’s convictions and then said the felony classifications for those offenses showed their extreme seriousness but did not “really do them justice in terms of how serious this was.” (2) The DA endorsed the victim’s request that she and her son be able to live without fear of Bokenyi being released from custody until her son reached adulthood. (3) The DA editorialized about a jail incident report that undercut the State’s 8-year sentence recommendation. The court of appeals first held that all of these remarks breached the plea agreement and then held that trial counsel lacked a valid strategic reason for failing to object to them and thus performed deficiently.
Note: Bokeny’s attorney did not consult with him about the decision not to object. On appeal, the State conceded that this was deficient performance. See State v. Sprang, 2004 WI App 121, 275 Wis. 2d 784, 683 N.W.2d 522. In one teeny paragraph the court of appeals, correctly, noted that it could not overrule Sprang and thus was bound by it. Sprang‘s validity features prominently in the State’s petition for review and may well be the reason the Supremes took this case. See State’s petition for review.
A plea is “personal” to the defendant; a prosecutorial promise inducing a plea is enforceable as a matter of due process; failure to enforce that promise implicates voluntariness of the plea (because of its “personal” aspect) — bedrock, uncontroversial principles of plea-bargaining. The decision to object to a plea bargain breach simply isn’t delegable to counsel, hence failure to object isn’t susceptible to the deferential-review regime of IAC litigation. The State’s pfr, tellingly fails to cite State v. Smith, 207 Wis.2d 259, 558 N.W.2d 379 (1997), which holds in pertinent part, ¶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.”
Granted, the State in Smith conceded deficient performance. Still, the quoted language is clear enough and the underlying principle unassailable. More than Sprang will have to be upended to get the State what it wants: Smith will have to be tossed aside as well.