Hartjes v. Endicott

• Decision Date: 08 August 2006
• Docket Number: No. 05-1963.,05-1963.
• Citation: 456 F.3d 786
• Parties: David L. HARTJES, Petitioner-Appellant, v. Jeffrey P. ENDICOTT, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

456 F.3d 786

David L. HARTJES, Petitioner-Appellant, v. Jeffrey P. ENDICOTT, Respondent-Appellee.

No. 05-1963.

United States Court of Appeals, Seventh Circuit.

Argued November 7, 2005.

Decided August 8, 2006.

Mark D. Richards (argued), Racine, WI, for Petitioner-Appellant.

Gregory M. Weber (argued), Office of the Attorney General Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.

Before POSNER, EASTERBROOK, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

In 2001, David L. Hartjes pleaded no contest in Wisconsin state court to four counts of second-degree sexual assault, or sexual intercourse with a person under the age of 16. His victim was his adopted daughter. While the case was pending, other allegations arose about Hartjes's conduct with both his adopted daughter and other minors—allegations that neither led to charges nor were admitted by Hartjes. At his sentencing, however, the prosecutor mischaracterized the state of the case, indicating to the judge that additional charges had been "read in," meaning that the judge could deem the charges admitted and in that light take them into account in sentencing. Although Hartjes's attorney did not specifically object to this statement, he did make clear that Hartjes disputed the additional allegations. The judge sentenced Hartjes to 20 years in prison to be followed by 40 years of extended supervision. Hartjes unsuccessfully challenged his sentence in the Wisconsin state courts.

Hartjes then filed a petition for federal habeas corpus relief, in which he claimed that his counsel was ineffective, either for failing to object or for permitting a modification of his plea agreement without his consent. He argued that he should either be resentenced or permitted to withdraw his plea of no contest. While it is a matter of concern whenever a prosecutor misrepresents the state's case at sentencing, we cannot say that the decision of the Wisconsin Court of Appeals finding that defense counsel's performance met constitutional standards and that Hartjes was not prejudiced by the failure to object was unreasonable. We therefore affirm the district court's judgment denying the petition.

I

With the benefit of a plea agreement, Hartjes pleaded no contest to four counts of sexual intercourse with a person under the age of 16 in violation of Wis. Stat. § 948.02(2). He faced up to 30 years in prison on each count. The plea agreement called for an "open sentencing," at which both sides were free to make any argument to establish what sentence would be appropriate. The plea agreement did not provide for any additional charges or potential charges to be "read in," a procedure under Wisconsin law in which the prosecutor agrees not to charge or to dismiss charges of other crimes as part of a plea agreement, and the defendant agrees that those charges can be "considered by the court at the time of sentencing." Wis. Stat. § 973.20(b). See Austin v. State, 49 Wis.2d 727, 183 N.W.2d 56, 58-59 (1971) ("Under our read-in procedure, the defendant does not plead to any charges and therefore is not sentenced on any of the read-in charges but such admitted uncharged offenses are considered in sentencing him on the charged offense. Thus under the read-in procedure, the defendant does not run the risk of consecutive sentences or even concurrent sentences. His only risk is a longer sentence for the crime charged but this sentence cannot exceed the maximum.").

Before sentencing, additional allegations surfaced that Hartjes had assaulted the victim on many occasions in addition to those listed in the charges, and that he also had sexually abused three other girls, two of whom were his biological daughters. The state, however, did not bring any additional charges. It indicated instead that none would be brought, and Hartjes never admitted to these additional allegations.

At sentencing, a new prosecutor appeared for the state and included in his description of the harm from Hartjes's crimes not only the original charged instances but the repeated abuse over "44 weekends plus three full weeks" when Hartjes had custody of his daughters. The prosecutor then indicated that he believed "by agreement of counsel[ ]that certain other conduct to which reference is made, conduct with respect to other children, even his own children[,] referred to in the pre-sentence report, is not going to be prosecuted by the district attorney's office, but can be treated as a read-in offense." The prosecutor continued, "And that means the Court can take it as true. [His adopted daughter] is not his only victim. Other children are at risk. In fact, all children are at risk [because] of his charm, his looks, his glib tongue, his manipulating manner." The prosecutor then asked that Hartjes be barred from unsupervised contact with any children under the age of 18, concluding with a repetition of his mistake about read-in offenses: "And with respect to the victim and the victims of the—what may be considered the read-in behavior, there should never be any contact at all."

Hartjes's attorney did not formally object to these references to "read-in offenses" or "read-in behavior." Indeed, he inadvertently repeated the mistake by saying "[w]ith regard to the behaviors that are being read in" as he began to clarify the status of those uncharged allegations. Nevertheless, he also made clear to the sentencing court that there was no agreement to read in charges; instead, Hartjes's counsel explained, he had merely approached the prosecutor to find out what was going on when he heard about the additional allegations and was "informed [] that they would not be pursuing them and that he would agree to read them in for purposes of [ ] no further prosecutions." Hartjes's attorney represented that "never was there any admission on [Hartjes's] part or on my part to this behavior. He absolutely denies any sort of sexual activity with any of his other children or any other child, for that matter." He also suggested a reason for why the prosecutor had agreed not to pursue additional charges: "I don't want to put words in [the prosecutor's] mouth either, but [] he believed that he had sufficient ammunition, for lack of a better term, to proceed right now and [ ] he agreed that none of the other matters would be pursued."

At sentencing, the state court observed that Hartjes's offenses were "very serious" and that "a young child [ ] will live with this for the rest of her life." The court also recalled that the victim had asked for a sentence of life in prison and observed, "There just can't be a crime that is more devastating, one that turns the stomach of an ordinary citizen, one that frightens many people for their daughters." The court never specifically either accepted or rejected the additional allegations. Ultimately, it sentenced Hartjes to 20 years in prison, to be followed by 40 years of extended supervision. In addition, the court ordered that Hartjes have "no unsupervised . . . contact with any child under the [age] of 18" and "no contact with the child victims until they are all of majority."

Several months later, Hartjes sought resentencing, contending that the state had breached the plea agreement by arguing that the additional charges had been read in. By this time, Hartjes had obtained new counsel; his original attorney testified at the hearing. The attorney testified that he went over the plea questionnaire and waiver-of-rights form with Hartjes. He testified that the additional allegations first arose in a letter sent to the judge by relatives, and that as a result he spoke to the prosecutor who "agreed that he had enough and he didn't want to pursue anything else." Hartjes's first attorney also testified, "He had talked about reading it in. And then we talked about just agreeing not to charge the matter. And my recollection of what was finally resolved was that he had agreed that [] they would simply agree not to charge them and agree that ... they were done and over with." He also said that he told the prosecutor that Hartjes "absolutely denied any of those allegations with any of the other victims" and that when the prosecutor at the sentencing began talking about read-in charges, he simply failed to object: "[T]here was certainly no strategic reason. ... I dropped the ball." The prosecution pointed out that regardless of whether the charges were read in, the sentencing court was entitled to take the uncharged offenses into account in considering the "seriousness of the offense" and the "character of the defendant." The court denied Hartjes's request for resentencing, pointing out that it had based the sentence primarily on the extensive damage Hartjes did to one victim, his adopted daughter. The court also commented that it did not "place any great emphasis" on the additional allegations, holding, "The sentence that I gave was appropriate to the four counts that [ ] he committed." Any breach by the prosecution, the court added, "was not material[ ] and substantial."

The Wisconsin Court of Appeals rejected Hartjes's arguments that the prosecution violated the plea agreement, that his trial counsel was ineffective, and that his plea was not knowing and voluntary because he did not understand the plea agreement. See State v. David L.H., 667 N.W.2d 378 (Wis.App. June 24, 2003) (unpublished). The Wisconsin Supreme Court denied Hartjes's petition for review. 266 Wis.2d 64, 671 N.W.2d 850 (2003).

Turning to the federal courts, Hartjes filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254, contending again that his counsel was ineffective, that the state breached the plea agreement, and that his plea was involuntary. The district court rejected these claims but granted a certificate of appealability on both Hartjes's Sixth Amendment ineffective assistance of counsel and his Fourteenth Amendment due process/voluntariness of plea claims.

II

In reviewing the denial of a habeas corpus...