State v. Howard

• Decision Date: 15 May 2001
• Docket Number: No. 00-2046.,00-2046.
• Citation: 630 N.W.2d 244,2001 WI App 137,246 Wis.2d 475
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Michael F. HOWARD, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

246 Wis.2d 475

2001 WI App 137

630 N.W.2d 244

STATE of Wisconsin, Plaintiff-Respondent, v. Michael F. HOWARD, Defendant-Appellant.

No. 00-2046.

Court of Appeals of Wisconsin.

Submitted on briefs March 13, 2001.

Decided May 15, 2001.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Michael F. Howard.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Stephen W. Kleinmaier, assistant attorney general.

Before Cane, C.J., Hoover, P.J., and Peterson, J.

¶ 1. CANE, C.J.

Michael Howard appeals pro se from an order denying his WIS. STAT. § 974.06 motion for postconviction relief.¹ Howard argues that: (1) the State breached the plea agreement when the prosecutor recommended consecutive rather than concurrent sentences; and (2) Howard was denied the effective assistance of trial counsel when counsel failed to object to the State's breach. We conclude that the State breached the plea agreement, and that if Howard can establish that his counsel performed deficiently, we can presume he was prejudiced by that deficiency. Accordingly, we reverse and remand so that the trial court can conduct a Machner hearing and determine whether Howard's counsel performed deficiently.² If the trial court concludes counsel was deficient, the court should exercise its discretion and select the appropriate remedy for the State's breach.

BACKGROUND

¶ 2. In an information filed in August 1998, Howard was charged with two counts of second-degree sexual assault of a child in violation of WIS. STAT. § 948.02(2). In a second information filed in September 1998, Howard was charged with four counts of being party to the crime of first-degree recklessly endangering safety while possessing a dangerous weapon in violation of WIS. STAT. §§ 941.30(1) and 939.63(1)(a).

¶ 3. The State and Howard reached a plea agreement pursuant to which the two cases were consolidated for the purpose of entering no contest pleas to five felony counts and sentencing. According to a December 1998 letter to Howard from his attorney, the terms of the agreement pertinent to this appeal included the following:

1. Case No. 98-CF-749:

a. Plead to all four (4) counts of PTAC-First Degree Recklessly Endangering Safety-Felony with weapons enhancers;

2. Case No. 98-CF-720:

a. Plead to one (1) count of Second Degree Sexual Assault-Felony b. Dismiss one (1) count of Second Degree Sexual Assault-Felony;

c. State will recommend "concurrent" time on this case.

3. State will agree to recommend no more than 25 years prison, but will wait to make a specific sentencing recommendation until after the PSI is completed.

¶ 4. Counsel for Howard and the State both restated this agreement at the plea hearing. Howard's attorney stated: "And I understand pursuant to the plea agreement that the State would recommend concurrent time on the files and that the State would agree to recommend no more than 25 years' prison with regards to both files, and the defense would be free to argue for an appropriate sentence."

¶ 5. The State confirmed: "[T]he agreement is for him to plead to all counts with the penalty enhancers in 98-CF-749, and that he'll be pleading to one count in 98-CF-720, and we'll dismiss and read in the second count. And the cap will be at 25 years, and that would be concurrent—total of 25 years."

¶ 6. The trial court accepted Howard's no contest pleas to the five charges and found him guilty. The court ordered a pre-sentence investigation and scheduled a sentencing hearing several months later. Howard subsequently changed attorneys, so he had new counsel at the sentencing hearing.

¶ 7. At the May 1999 sentencing hearing, the prosecutor stated his recommendation:

[T]he State is going to recommend that on each of the five counts before the Court this morning that the Court impose a five-year prison sentence on each of those five counts to be served consecutively to each other, for a total penalty of 25 years in prison.

Howard's counsel did not object to this recommendation, despite the fact that the State had recommended that the one count of sexual assault be served consecutively to the four counts of recklessly endangering safety.

¶ 8. Howard's counsel recommended that Howard receive four years consecutive prison time on two counts of recklessly endangering safety, "and then run a period of probation with some hefty imposed but stayed time consecutive to that prison time" on the three remaining counts.

¶ 9. The trial court sentenced Howard to six years in prison on each of the recklessly endangering safety counts and ordered that the four terms be served consecutively. With respect to the sexual assault conviction, the court sentenced Howard to fifteen years in prison, stayed the sentence, and placed Howard on probation for ten years, all consecutive to the four consecutive six-year prison terms.

¶ 10. Howard initiated but did not pursue a direct appeal of his conviction.³ However, in May 2000, he filed a WIS. STAT. § 974.06 postconviction motion alleging ineffective assistance of counsel. He requested a Machner hearing so that his attorney could explain why she did not object when the prosecutor allegedly breached the plea agreement by recommending that the one count of sexual assault be served consecutively to the four counts of recklessly endangering safety. Howard indicated that if he established ineffective assistance of counsel, he would seek to withdraw his no contest pleas because the State had violated the plea agreement.

¶ 11. Without holding a Machner hearing, the trial court denied Howard's motion. The court concluded that even if Howard's counsel's decision to withhold objection constituted deficient performance rather than strategy, Howard had not been prejudiced by the deficiency, for several reasons. First, the State still recommended no more than twenty-five years total, as per the plea agreement. Second, Howard's counsel recommended a sentence including prison terms on two counts of recklessly endangering safety and a period of probation with a prison term stayed for the other three counts, including the sexual assault, that would run consecutive to the first two sentences. Third, the sentence imposed was consistent with the cap on the plea agreement.⁴ The court concluded:

Thus, the total number of years Howard has been sentenced to serve does not exceed the maximum set forth in the plea agreement. Moreover, Howard's sentence is consistent with the result anticipated by the parties had the plea agreement not been slightly altered. Therefore, Howard has failed to establish that his counsel's performance prejudiced his defense.

This appeal followed.

DISCUSSION

[1,2]

¶ 12. When Howard failed to object to the State's alleged breach of the plea agreement at the sentencing hearing, he waived his right to directly challenge the alleged breach of the plea. See Grant v. State, 73 Wis. 2d 441, 447, 243 N.W.2d 186 (1976)

. Therefore, this case comes to us in the context of an ineffective assistance of counsel claim. We first consider whether the State breached the plea agreement. If there was a material and substantial breach, the next issues are whether Howard's counsel provided ineffective assistance and which remedy is appropriate.

I. Whether breach of the plea agreement is technical, or material and substantial

[3,4]

¶ 13. A criminal 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). Due process concerns arise in the process of enforcing a plea agreement. Id. Although a defendant has no right to call upon the prosecution to perform while the agreement is wholly executory, once the defendant has given up his "bargaining chip" by pleading guilty, due process requires that the defendant's expectations be fulfilled. Id.; see also Santobello v. New York, 404 U.S. 257, 262 (1971)

("[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.").

[5]

¶ 14. When examining a defendant's allegation that the State breached a plea agreement, such as by making a different recommendation at sentencing, it is irrelevant whether the trial court was influenced by the State's alleged breach or chose to ignore the State's recommendation. See United States v. Clark, 55 F.3d 9, 13 (1st Cir. 1995)

(A prosecutorial failure to fulfill a promise is not rendered harmless because of judicial refusal to follow the recommendation or judicial awareness of the impropriety.). Thus, the focus of the trial court's analysis for postconviction motions, and for this court on appeal, is whether the State breached the agreement and, if so, whether the breach was material and substantial, rather than whether the trial court was influenced by the breach.

[6,7]

¶ 15. Not all breaches of a plea agreement require a remedy. See State v. Bangert, 131 Wis. 2d 246, 289, 389 N.W.2d 12 (1986)

. A defendant is not entitled to relief when the breach is merely a technical one rather than a substantial and material breach of the agreement. See id. at 289-90. A breach must deprive the defendant of a material and substantial benefit for which he or she bargained. Smith, 207 Wis. 2d at 272. When the facts are undisputed, the question whether the prosecutor's conduct breached the terms of the plea agreement is a question of law that we review de novo. Id. at 266.

¶ 16. Here, the terms of the plea agreement were clear. Howard agreed to plead no contest to four counts of recklessly endangering safety and one count of sexual assault. The State agreed to recommend no more than twenty-five years prison and concurrent time on the sexual assault case. The parties agree that the prosecutor violated the plea agreement when he recommended that the sexual assault sentence be served...