State v. Duckett, 2009AP958-CR.

• Decision Date: 17 February 2010
• Docket Number: No. 2009AP958-CR.,2009AP958-CR.
• Citation: 2010 WI App 44,781 N.W.2d 522
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Robert L. DUCKETT, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

781 N.W.2d 522

2010 WI App 44

STATE of Wisconsin, Plaintiff-Respondent, v. Robert L. DUCKETT, Defendant-Appellant.^†

No. 2009AP958-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs January 5, 2010.

Opinion Filed February 17, 2010.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Michael K. Gould, assistant state public defender, of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general, and Eileen W. Pray, assistant attorney general.

Before FINE, KESSLER and BRENNAN, JJ.

¶ 1 BRENNAN, J

Robert L. Duckett appeals a judgment of conviction for first-degree reckless injury while armed, and an order denying his postconviction motion. Duckett argues that the prosecutor's remarks during the sentencing hearing breached the parties' plea agreement, in violation of his right to due process. We affirm the circuit court.

BACKGROUND

¶ 2 On January 16, 2008, Duckett pled no contest to first-degree reckless injury while armed. At that time, Duckett and the State entered into a plea agreement. The State agreed to request a presentence investigation ("PSI") report and to recommend prison time, without any specific recommendation as to the length of the prison sentence. Duckett remained free to argue for probation with a stayed sentence.

¶ 3 At the sentencing hearing on February 26, 2008, the prosecutor began his recommendation as follows: "Your Honor, again, the State is recommending prison time here in this case. And the PSI, the recommendation from the PSI is for two to five years, followed by four to five years of extended supervision." The prosecutor then "highlighted the aggravating and mitigating factors that the State saw in this case." The prosecutor set forth, in great detail, the crime and Duckett's lengthy criminal record, concluding, "this is an aggravated case, and I think it's shocking, the defendant's responses to the questions in the PSI, how brazen his attitude is here. And I hope the State's highlighting of some of these factors here will be taken into account by the court." Following the parties' sentencing arguments, the circuit court imposed a ten-year sentence composed of six years' initial confinement and four years' extended supervision.

¶ 4 On January 23, 2009, Duckett filed a postconviction motion through new counsel, asserting that the State had breached the plea agreement by explicitly referencing the PSI report's sentencing recommendation, and by following that reference with "a lengthy series of comments on the aggravated nature of the case." Duckett argued that by presenting its recommendation in that manner, the State implicitly but clearly conveyed to the court that the PSI report's sentencing recommendation was too low—in breach of the plea agreement's prohibition against recommending a particular sentence.

¶ 5 The circuit court held an evidentiary hearing on the motion, at which both Duckett and his trial counsel testified. Trial counsel explained that he did not object to the prosecutor's sentencing remarks because he did not believe that they violated the plea agreement. Following the hearing, the circuit court denied Duckett's postconviction motion, holding that the State's remarks were merely informative and therefore did not constitute a breach of the plea agreement. Duckett appeals.

STANDARD OF REVIEW

¶ 6 Because Duckett's trial attorney did not object to the State's recommendation at the sentencing hearing, Duckett has forfeited¹ his right to direct review of the alleged plea agreement breach. See State v. Howard, 2001 WI App 137, ¶ 12, 246 Wis.2d 475, 630 N.W.2d 244. Therefore, we must review the case in the context of a claim for ineffective assistance of counsel. Id. First, we "consider whether the State breached the plea agreement." Id. "If there was a material and substantial breach, the next issues are whether Duckett's counsel provided ineffective assistance and which remedy is appropriate." See id. Whether the prosecutor's conduct constituted a material breach of the plea agreement is a question of law that we review de novo. See State v. Naydihor, 2004 WI 43, ¶ 11, 270 Wis.2d 585, 678 N.W.2d 220.

DISCUSSION

¶ 7 The parties do not dispute that the State recommended prison as they agreed, and Duckett does not argue that the State directly breached the plea agreement. Instead, Duckett argues that the State indirectly breached the plea agreement during the sentencing hearing in two ways: (1) by referencing the PSI report's sentencing recommendation; and (2) by describing the aggravating and mitigating factors, including Duckett's "shocking" lack of remorse. In response, the State asserts that the comments made by the prosecutor during the sentencing hearing were informational in nature, and thereby did not directly or indirectly breach the plea agreement. We agree with the State, and for that reason, conclude that trial counsel's representation was not deficient.

¶ 8 "An accused has a constitutional right to the enforcement of a negotiated plea agreement." State v. Williams, 2002 WI 1, ¶ 37, 249 Wis.2d 492, 637 N.W.2d 733 ("Once a defendant agrees to plead guilty in reliance upon a prosecutor's promise to perform a future act, the defendant's due process rights demand fulfillment of the bargain."). A plea agreement is breached when a prosecutor fails to present the negotiated sentencing recommendation to the circuit court. Id., ¶ 38. An actionable breach, however, "must not be merely a technical breach; it must be a material and substantial breach." Id. "A material and substantial breach is a violation of the terms of the agreement that defeats the benefits for which the defendant bargained." Id. Here, the question is whether the prosecutor's comments deprived Duckett of the benefit he bargained for—a prison term recommendation.

¶ 9 The Wisconsin Supreme Court has stated that a prosecutor has a duty to give the court relevant sentencing information but must do it in a way that honors the plea agreement: "the State must walk `a fine line' at a sentencing hearing. A prosecutor may convey information to the sentencing court that is both favorable and unfavorable to a defendant," but must do so while also abiding by the terms of its agreement with the defendant. Id., ¶ 44 (footnote omitted). "The State must balance its duty to convey relevant information to the sentencing court against its duty to honor the plea agreement." Id.

¶ 10 Here, the State properly conveyed relevant information to the court without depriving Duckett of the benefit of the prison recommendation he bargained for. It should be noted that a request for a PSI report was part of the parties' plea agreement. The court had the PSI report before it at the start of the sentencing hearing. Even before the prosecutor spoke, the court confirmed with Duckett's attorney that he had gone over the PSI report with Duckett. Then the prosecutor gave his recommendation for prison, without specifying a length of time. Next, the prosecutor advised the court of the PSI report's sentencing recommendation and the aggravating and mitigating factors, including Duckett's "shocking" lack of remorse as shown in his answers to the PSI writer's questions. Finally, the prosecutor concluded by simply asking the court to take those factors into consideration. The prosecutor honored the plea agreement by: (1) recommending prison; (2) never giving his opinion as to the length of the sentence; (3) never implying that he agreed with the PSI report's recommended sentence length, or that he sought a longer sentence than the PSI report recommended; (4) giving the background information that he was duty-bound to provide; and (5) concluding his remarks with a neutral request that the court consider all the factors.

¶ 11 Duckett concedes that the prosecutor was permitted to advise the court of aggravating and mitigating factors. While arguing that the prosecutor crossed the line when he described Duckett's comments in the PSI report as exhibiting a "shocking" lack of remorse, Duckett's counsel admitted at the postconviction hearing that the real issue was not the prosecutor's aggravating factor comments, but, "the real problem, the big problem, is that mentioning of the specific sentencing recommendation that's in the PSI report." Duckett argued that by presenting its recommendation in that manner, the State implicitly conveyed to the court that the PSI report's sentencing recommendation was too low—in breach of the plea agreement's prohibition against recommending a particular sentence.

¶ 12 Duckett relies on Williams to support his position. In Williams, during the sentencing hearing, the prosecutor began by stating that "`when ... Williams entered his plea ... we had told the Court that we would be recommending ... that he be placed on probation, that he pay arrearages and pay current child support.'" Id., 249 Wis.2d 492, ¶ 49, 637 N.W.2d 733 (third and fourth alterations in Williams). The prosecutor then when on to say that:

"After reading through the PSI report,... I can best describe my impression of this defendant as manipulative and unwilling to take any responsibility. I have had an occasion to speak with the defendant's ex-wife. And she has indicated things that she will be presenting to the Court. But it was quite a contrast, speaking with her and reading and learning about the defendant."

Id., ¶ 47 (second and third brackets in Williams).

¶ 13 The Wisconsin Supreme Court held that the prosecutor's comments at the sentencing hearing were "less than neutral" and that "the prosecutor implied that had the State known more about Williams, it would not have entered into the plea agreement." Id. Ultimately, the court concluded that the State inappropriately "cast doubt on and distanced itself from its own sentencing recommendation," and in doing so, breached the plea agreement. Id., ¶¶ 50, 59.

¶ 14 This case is easily...