State v. Bokenyi
| Decision Date | 11 July 2014 |
| Docket Number | No. 2012AP2557–CR.,2012AP2557–CR. |
| Citation | 355 Wis.2d 28,848 N.W.2d 759,2014 WI 61 |
| Parties | STATE of Wisconsin, Plaintiff–Respondent–Petitioner, v. William F. BOKENYI, Defendant–Appellant. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
For the plaintiff-respondent-petitioner, the cause was argued by Jeffrey J. Kassel, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.
For the defendant-appellant, there was a brief by Suzanne L. Hagopian, assistant state public defender, and oral argument by Suzanne L. Hagopian.
¶ 1 This is a review of an unpublished decision of the court of appeals, State v. Bokenyi, No. 2012AP2557–CR, unpublished slip op., 2013 WL 2990651 (Wis. Ct.App. June 18, 2013), which reversed the judgment and order of the Polk County Circuit Court 1 sentencing William F. Bokenyi(“Bokenyi”) to prison and denying his motion for postconviction relief.
¶ 2 Bokenyi contends that, even though the State recommended a term of imprisonment which was consistent with the plea agreement, the State nonetheless materially and substantially breached that agreement by implying that the court should impose a longer sentence. Bokenyi asserts that the prosecutor's comments during the sentencing hearing were inconsistent with the plea agreement.
¶ 3 Bokenyi also argues that he received ineffective assistance from his trial counsel, because counsel failed to object to the State's material and substantial breach of the plea agreement, and that his counsel also failed to consult with him as required under State v. Sprang, 2004 WI App 121, 274 Wis.2d 784, 683 N.W.2d 522.
¶ 4 The State argues that the prosecutor's comments during the sentencing hearing did not constitute a material and substantial breach of the plea agreement. Alternatively, the State contends that Bokenyi's defense attorney was not ineffective for failing to object and asks this court to overrule Sprang.
¶ 5 We conclude that the prosecutor's comments during the sentencing hearing did not constitute a material and substantial breach of the plea agreement. As a result, we need not address Bokenyi's argument that his trial counsel was ineffective, nor must we consider the State's request that Sprang be overruled. We therefore reverse the decision of the court of appeals.
¶ 6 On August 1, 2010, Bokenyi was involved in a domestic dispute with his wife, Sherri Bokenyi (“Sherri”). After Bokenyi returned home from a poker game, Sherri informed Bokenyi that she would be leaving the following day to spend a week caring for her elderly mother. Upon hearing this news, Bokenyi became upset and threatened to kill both Sherri and the couple's ten-year-old son.
¶ 7 In response to Bokenyi's threat, Sherri locked both herself and her son in a bedroom. Bokenyi, having armed himself with two kitchen knives, followed Sherri to the bedroom door and stated, “open the door, you fucking bitch.” Sherri briefly opened the door, and upon seeing the knives barricaded herself in the room and called the police.
¶ 8 Officer Daniel Peters (“Officer Peters”) responded to Sherri's call. On approaching the door to the apartment, Officer Peters heard Bokenyi shouting. Officer Peters knocked on the door and stated, “Police, open the door.” Bokenyi responded, “Fuck you, you're going to have to come in and kill me.” Despite his comment, Bokenyi did open the door, and Officer Peters observed him holding two knives. Officer Peters stated, “Police[,] get on the floor and drop the knives.” Bokenyi responded to Officer Peters' command by stating, “Fuck you” and slamming the door. As Officer Peters called for back-up, he heard Bokenyi shout, “Fuck you, I'm going to kill you woman.”
¶ 9 Officer Peters was then joined at the scene by several other officers, including Deputy Nathan Ferris (“Deputy Ferris”) and Sergeant Michael Stoffel (“Sergeant Stoffel”). The officers together kicked in the door and entered Bokenyi's apartment. Upon entering, the officers once again commanded Bokenyi to drop the knives he was holding. When Bokenyi began walking toward the officers, Deputy Ferris deployed his Taser. The Taser had no apparent effect on Bokenyi, and he continued to advance toward the officers. Sergeant Stoffel then fired at Bokenyi with his servicepistol, striking Bokenyi. Bokenyi was subsequently transported to Regions Hospital in St. Paul, Minnesota.
¶ 10 On August 5, 2010, the State filed a criminal complaint alleging ten counts against Bokenyi. The complaint alleged one count of first-degree reckless endangerment, contrary to Wis. Stat. § 941.30(1) (2009–10), 2 a Class F felony; two counts of felony intimidation of a victim, contrary to § 940.45(1), Class G felonies; one count of failing to comply with an officer's attempt to take a person into custody, contrary to § 946.415(2), a Class I felony; three counts of attempted battery of a peace officer, contrary to §§ 940.20(2) and 939.32, attempts to commit Class H felonies; one count of disorderly conduct as an act of domestic abuse, contrary to §§ 947.01 and 968.075(1)(a), a class B misdemeanor; one count of resisting an officer, contrary to § 946.41(1), a Class A misdemeanor; and one count of negligent handling of a weapon, contrary to § 941.20(1)(a), a Class A misdemeanor.
¶ 11 On August 31, 2010, Bokenyi made his initial appearance, received a copy of the criminal complaint, and requested a timely preliminary hearing. The court set bail at $25,000 cash.
¶ 12 On September 9, 2010, the court held Bokenyi's preliminary hearing. The court heard testimony from Sherri and Officer Peters regarding the incident. At the conclusion of the testimony, the court found probable cause and bound Bokenyi over for trial. The State filed an information which alleged the same ten counts against Bokenyi as charged in the criminal complaint. Bokenyi was then immediately arraigned on the information, and pled not guilty and not guilty by reason of mental disease or defect to all the charges. 3
¶ 13 On September 30, 2011, Bokenyi pled guilty to three of the ten charges against him, pursuant to a plea agreement. As part of the plea agreement, Bokenyi pled guilty to one count of first-degree reckless endangerment, one count of felony intimidation of a victim, and one count of failing to comply with an officer's attempt to take a person into custody. In exchange for Bokenyi's pleas, the State agreed to dismiss and read in the remaining counts for sentencing purposes and limit its sentencing recommendation to “the high end range of the PSI.” The court accepted Bokenyi's pleas, adjudged him guilty, and ordered a presentence investigation report (“PSI”).
¶ 14 On December 5, 2011, the PSI was filed with the circuit court. On the reckless endangerment count, the PSI recommended three to four years of initial confinement, to be followed by three to four years of extended supervision. On the failure to comply with a police officer and victim intimidation counts, the PSI recommended that the court withhold sentence and impose probation terms of three and five years, respectively. The PSI recommended that the probation terms be concurrent with one another, but consecutive to the sentence on the reckless endangerment count.
¶ 15 On January 23, 2012, the court held a sentencing hearing. Prior to offering argument on the sentence, the prosecutor read aloud a letter to the court from Sherri, the victim. Sherri's letter stated, in part:
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.
¶ 16 Following the reading of the letter, the State proceeded to make its sentencing argument. The State structured its argument around the sentencing factors found in McCleary v. State, 49 Wis.2d 263, 182 N.W.2d 512 (1971), and State v. Gallion, 2004 WI 42, 270 Wis.2d 535, 678 N.W.2d 197. The State began by reiterating the seriousness of Bokenyi's convictions:
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.
¶ 17 The State noted that, given Bokenyi's history of “homicidal thoughts or ideations” toward his family, the fact that the three felonies were “very serious crimes” did not reflect the seriousness of what “might have happened that night....”
¶ 18 The State then addressed Bokenyi's character. The State noted Bokenyi's similar behavior during a prior incident, wherein police were forced to shoot him when he refused to drop a loaded shotgun. The State also discussed Bokenyi's seeming lack of remorse and the fact that he seemed “to have absolutely no clue as to the impact that this offense has had on his wife and child.”
¶ 19 The State further noted that there was a need to protect the public from Bokenyi, stating:
[T]here's the need to protect the public or the public's interest in rehabilitation of the defendant and I think this overwhelmingly comes down to the protection of the public interest. The protection of the public, being Sherry [sic] Bokenyi and their son. 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.
¶ 20 Finally, the State noted some troubling behavior that Bokenyi had exhibited since his arrest:
What is again perhaps the most frightening for me is...
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...of and commentary regarding the victim's wishes may be relevant and appropriate at the sentencing." (quoting State v. Bokenyi , 355 Wis.2d 28, 848 N.W.2d 759, 772 (2014) )). We do hold that—in this instance—the prosecutor's reference to the victim's wishes as the "sole reason" for recommend......
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