State v. Bokenyi, 2012AP2557–CR.
| Decision Date | 18 June 2013 |
| Docket Number | No. 2012AP2557–CR.,2012AP2557–CR. |
| Citation | 349 Wis.2d 528,835 N.W.2d 292,2013 WI App 94 |
| Parties | STATE of Wisconsin, Plaintiff–Respondent, v. William F. BOKENYI, Defendant–Appellant. |
| Court | Wisconsin Court of Appeals |
OPINION TEXT STARTS HEREAppeal from a judgment and an order of the circuit court for Polk County: Molly E. Galewyrick, Judge. Reversed and cause remanded with directions.
Before HOOVER, P.J., MANGERSON and STARK, JJ.¶ 1PER CURIAM.
William Bokenyi appeals a judgment of conviction and an order denying his motion for resentencing. Bokenyi argues the State breached the plea agreement during his sentencing hearing by arguing for a harsher sentence than it agreed to recommend. He also contends his trial attorney was ineffective by failing to object to the State's sentencing remarks. We conclude the State's sentencing remarks materially and substantially breached the plea agreement, and Bokenyi's attorney was ineffective by failing to object. We therefore reverse and remand for resentencing before a different judge.
¶ 2 A criminal complaint charged Bokenyi with ten crimes arising from an incident that occurred at Bokenyi's apartment on August 1, 2010. According to the complaint, Bokenyi repeatedly threatened to kill his wife, Sherri, and their son. Sherri and the child barricaded themselves in a bedroom and called 911. When officers arrived at the apartment, they observed that Bokenyi was holding two knives. Bokenyi refused to drop the knives and instead slammed the apartment door. After hearing Bokenyi again threaten to kill Sherri, officers kicked down the door and entered the apartment. Bokenyi, who was still holding the knives, began to approach the officers. After Bokenyi ignored the officers' command to drop the knives, one of the officers fired his Taser. The Taser's probes struck Bokenyi in the chest, and the Taser activated, but it did not seem to have any effect on him. Bokenyi then took a step toward the officers, and one of the officers shot him.
¶ 3 Pursuant to a plea agreement, Bokenyi pled guilty to three of the charged crimes: first-degree recklessly endangering safety, felony intimidation of a victim, and failure to comply with an officer's attempt to take him into custody. The seven remaining charges were dismissed and read in for sentencing purposes. The State agreed to cap its sentence recommendation “at the high end range of the PSI [Pre–Sentence Investigation].” The PSI recommended three to four years' initial confinement and three to four years' extended supervision on the first-degree recklessly endangering safety charge. On the other two counts, the PSI recommended that the court withhold sentence and place Bokenyi on probation for five and three years, respectively, concurrent with each other and both consecutive to his sentence on the first count.
¶ 4 At the sentencing hearing, the circuit court began by reciting the penalty classifications and the maximum terms of imprisonment for each of Bokenyi's convictions, including the respective maximum terms of initial confinement and extended supervision. In total, Bokenyi faced twenty-six years' imprisonment, including fourteen years' initial confinement.
¶ 5 The court then asked whether Sherri, who was by then divorced from Bokenyi, wished to make a statement. The prosecutor responded by reading a letter Sherri had written, which stated:
It has been a long wait for this day, yet I'm still nervous and scared. I want [Bokenyi] to serve time due to him that justifies his behavior. But also I want him to get help while he is in prison. Myself and our son ... are afraid for the day [Bokenyi] will get let out because we are unsure of what he would be capable of doing. I prefer that we could live fearlessly while our son ... [who is] only 11 is growing and in school.
¶ 6 The State proceeded to its sentencing argument. The State first discussed the seriousness of the offenses, describing in detail Bokenyi's conduct on the night the offenses took place. The prosecutor then stated:
The three convictions that he is being sentenced on today [are] a first [-]degree reckless endangerment, a 12 and a half year felony, and intimidation of a victim, a 10 year felony[,] and failure to comply with a law enforcement officer, a 3 and a half year felony. I think the felony classifications obviously indicate the extreme seriousness of these offenses that night. But to be honest, I don't think they really do them justice in terms of how serious this was.
The prosecutor noted that Bokenyi had a history of “homicidal thoughts or ideations” toward his wife and son, so “although these are three felonies and these are very serious crimes, I don't think to be honest with you that they even come close to telling what could have happened that night ... and just in and of itself the seriousness of what did happen that night.” The prosecutor also stated that the involvement of weapons and the presence of the couple's child exacerbated the seriousness of Bokenyi's offenses.
¶ 7 The prosecutor then discussed Bokenyi's character, noting that Bokenyi had behaved violently on at least one other occasion in the past. The prosecutor also observed that Bokenyi had a history of mental illness, including suicidal and homicidal thoughts.
¶ 8 The prosecutor weighed the need to protect the public against Bokenyi's rehabilitative needs and concluded the protection of the public should be the ultimate aim of Bokenyi's sentence. Specifically, the prosecutor asked the court to impose a sentence that would protect Sherri and her son. The prosecutor stated:
They have a right, as she says in her letter, to live fearlessly while their son is growing up and in school. She has a right to live not in fear that Mr. Bokenyi, when he gets out, is going to come looking for her and to finish what he's attempted at least one other time before.
¶ 9 Additionally, the prosecutor described an incident that occurred while Bokenyi was in presentence custody, stating:
What is again perhaps the most frightening for me is to read an incident report from the Polk County Jail on February 11th of 2011. A jailer by the name of Laurie Flandrena, worked a long time at the jail, indicates that on the above date I was doing med pass in the maximum part of the jail. Inmate Bokenyi came out for the evening meds and I asked him how he was doing. He stated okay, but he was still here and that he could not wait for the time that he was out of here so he could “shoot up some cops.” I asked him why he would do that. He said they all deserved it. And making conversations with him I stated that wouldn't he rather just get out and enjoy being out [than] risk coming back in. He stated that next time he would not be coming back, and he would also shoot anyone who got in his way while he was shooting at the cops.
The prosecutor concluded, “There is an absolute necessity to protect the public from William Bokenyi.”
¶ 10 The State then made its sentencing recommendation. Consistent with the plea agreement, it recommended four years' initial confinement and four years' extended supervision on the first-degree recklessly endangering safety conviction. On the two remaining counts, the State recommended that the court withhold sentence and impose probationary terms consistent with the recommendations in the PSI.
¶ 11 The court ultimately sentenced Bokenyi to concurrent terms of imprisonment on each of the three convictions. The controlling sentence, imposed on the conviction for first-degree recklessly endangering safety, consisted of seven years and five months of initial confinement and five years of extended supervision. The court also sentenced Bokenyi to five years' initial confinement and five years' extended supervision on the intimidation of a victim conviction, and one year initial confinement and one year extended supervision on the conviction for failing to comply with an officer.
¶ 12 Bokenyi moved for resentencing. He argued the prosecutor's sentencing remarks breached the plea agreement and his trial attorney was ineffective for failing to object. At the postconviction hearing, Bokenyi's trial attorney testified he did not object to the prosecutor's arguments or consult with Bokenyi about objecting because he did not think the prosecutor breached the plea agreement. The circuit court agreed that the prosecutor's comments did not constitute a material and substantial breach, and it therefore denied Bokenyi's postconviction motion. Bokenyi now appeals.
¶ 13 On appeal, Bokenyi renews his argument that the State's sentencing remarks breached the plea agreement. As in the circuit court, he concedes he cannot directly challenge the State's remarks because his trial attorney failed to object to them. See State v. Howard, 2001 WI App 137, ¶¶ 12, 21, 246 Wis.2d 475, 630 N.W.2d 244. Instead, he argues his attorney was ineffective by failing to object and by failing to consult with him about whether to make an objection. When we review an ineffective assistance claim based on a failure to object to a breach of the plea agreement, we first consider whether the State actually breached the agreement. Id., ¶ 12. If so, we then consider whether counsel provided ineffective assistance. Id.
¶ 14 A defendant has a constitutional right to the enforcement of a negotiated plea agreement. State v. Smith, 207 Wis.2d 258, 271, 558 N.W.2d 379 (1997). A defendant who alleges the State has breached a plea agreement must show, by clear and convincing evidence, that a breach occurred and that the breach was material and substantial. State v. Deilke, 2004 WI 104, ¶ 13, 274 Wis.2d 595, 682 N.W.2d 945. A breach is material and substantial if it “violates the terms of the agreement and deprives the defendant of a material and substantial benefit for which he or she bargained.” State v. Bowers, 2005 WI App 72, ¶ 9, 280 Wis.2d 534, 696 N.W.2d 255. Because the facts of this case are undisputed, whether the State materially and...
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