State v. Naydihor

• Decision Date: 15 April 2004
• Docket Number: No. 01-3094-CR., No. 01-3093-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Victor NAYDIHOR, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

270 Wis.2d 585

2004 WI 43

678 N.W.2d 220

STATE of Wisconsin, Plaintiff-Respondent, v. Victor NAYDIHOR, Defendant-Appellant-Petitioner.

Nos. 01-3093-CR, 01-3094-CR.

Supreme Court of Wisconsin.

Oral argument December 17, 2003.

Decided April 15, 2004.

For the defendant-appellant-petitioner there were briefs by Philip J. Brehm, Janesville, and oral argument by Philip J. Brehm.

For the plaintiff-respondent the cause was argued by Warren D. Weinstein, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.

¶ 1. JON P. WILCOX, J.

The defendant, Victor Naydihor (Naydihor), seeks review of a published decision of the court of appeals, State v. Naydihor, 2002 WI App 272, 258 Wis. 2d 746, 654 N.W.2d 479, that affirmed an order of the Kenosha County Circuit Court, Bruce E. Schroeder, Judge, denying his motion for postconviction relief.

I

¶ 2. On February 25, 2000, Naydihor was involved in an automobile collision in Kenosha County. The law enforcement personnel that responded noticed several bottles of whiskey in Naydihor's vehicle and numerous empty beer bottles. Naydihor was unconscious and the deputies noticed a strong odor of alcohol emanating from him. Witnesses observed that Naydihor had run a red light and collided with the victim's vehicle. The investigation also revealed that Naydihor had a blood alcohol content of .265. On March 7, 2000, the State filed a criminal complaint against Naydihor charging him with three counts of criminal conduct arising from the collision: 1) injury by intoxicated use of a vehicle, contrary to Wis. Stat. § 940.25(1)(a) (1999-2000);¹ 2) operating while intoxicated causing injury, contrary to Wis. Stat. §§ 346.63(2)(a)(1) and 346.65(3m); and 3) operating with a prohibited alcohol concentration causing injury, contrary to Wis. Stat. §§ 346.63(1)(b), 346.65(3m), and 340.01(46m). Naydihor also received several ordinance violations stemming from the incident, including mandatory seat belt violation, open intoxicant in the vehicle, operating without a valid driver's license, and violation of traffic control.

¶ 3. The second count in the complaint was dismissed at Naydihor's initial appearance on March 7, 2000. The State filed an information on March 15, 2000, alleging the same counts as did the criminal complaint. On April 7, 2000, as part of a plea agreement with the State, Naydihor pled guilty to the first count in the information and the other counts were dismissed. The State agreed to recommend probation but "retained a free hand on the conditions of that probation." Sentencing was scheduled for May 18, 2000; however, at that time the State informed the court that Naydihor would be charged with felony bail jumping as a result of his failure to comply with the terms of his bond. While on bond, Naydihor failed to appear for the presentence investigation and tested positive for tetrahydrocannabinol.

¶ 4. On July 6, 2000, Naydihor appeared for sentencing in both matters. He pled no contest to the bail jumping charge. The Kenosha County Circuit Court, Barbara A. Kluka, Judge, sentenced Naydihor to three years in prison and five years extended supervision on his driving offense. The court also sentenced Naydihor to ten years of consecutive probation on the bail jumping offense. On December 4, 2000, Naydihor filed a motion seeking postconviction relief, alleging that under State v. Poole, 131 Wis. 2d 359, 389 N.W.2d 40 (Ct. App. 1986), the prosecutor breached the plea agreement by repeatedly stating to the court that he had made the plea agreement before reading the presentence report, which indicated that Naydihor had previous convictions for alcohol-related offenses. The State did not oppose the postconviction motion, and on January 13, 2001, the circuit court granted Naydihor's motion and ordered resentencing before a different judge.

¶ 5. On March 5, 2001, Naydihor was resentenced by Judge Schroeder. Regarding the injury by intoxicated use of a vehicle charge, the prosecutor recommended ten years probation with several conditions. The prosecutor recommended that Naydihor be required to: 1) obey all rules of supervision; 2) have no association with any known felons, drug dealers or drug users; 3) refrain from alcohol or nonprescribed controlled substances and then only controlled substances in strict accordance with the prescription order; 4) submit to chemical dependency assessments and complete all treatment; 5) submit to random weekly urinalyses; 6) attend counseling; 7) have no contact with the victim; 8) pay restitution; 9) not be present in any taverns; 10) not possess any alcohol containers; 11) not operate a motor vehicle; 12) not be present in any liquor store, including any grocery store that sells liquor; and 13) not be present in any restaurant that serves alcohol. In addition, the prosecutor recommended that Naydihor serve one year in the Kenosha County jail and perform 2000 hours community service. To support these conditions, the prosecutor detailed Naydihor's history of substance abuse, the effect of the crime on the victim, and the need for deterrence. The circuit court sentenced Naydihor to five years initial confinement and five years extended supervision on the driving offense and ten years consecutive probation on the bail jumping offense. The circuit court justified the increased sentence on the grounds that the condition of the victim had deteriorated since the initial sentencing and her medical bills had substantially increased.

II

¶ 6. On September 14, 2001, Naydihor again moved the court for postconviction relief. In his motion he requested the following: 1) a Machner² hearing to determine whether trial counsel was ineffective during resentencing; 2) a vacation of the sentence imposed by Judge Schroeder and resentencing in front of another judge; 3) that the State advocate for the terms of the plea agreement at resentencing; and 4) in the alternative, a reinstatement of the original sentence pronounced by Judge Kluka. On October 22, 2001, Judge Schroeder heard the motion and thereafter issued an order on November 13, 2001, denying Naydihor's motion for postconviction relief on all grounds. ¶ 7. On appeal, Naydihor argued that his trial counsel was ineffective at resentencing because he failed to object to comments made by the prosecutor that allegedly breached the plea agreement governing the injury by intoxicated use of a vehicle charge. Naydihor, 258 Wis. 2d 746, ¶ 1.³ Naydihor also alleged that his increased sentence violated due process because it was the product of judicial vindictiveness. Id. The court of appeals held that the circuit court did not abuse its discretion in denying the Machner hearing because the prosecutor had not violated the terms of the plea agreement at resentencing and thus Naydihor's counsel was not ineffective for failing to object. Id., ¶ 2. The court of appeals also held that the resentencing court was entitled to consider the deteriorated condition of the victim in resentencing Naydihor and therefore the increased sentence was not a product of judicial vindictiveness. Id.

¶ 8. We affirm the decision of the court of appeals and hold that the prosecutor did not breach the plea agreement at resentencing and thus Naydihor was not entitled to a Machner hearing on his ineffective assistance of counsel claim. We also affirm the court of appeals' determination that Naydihor's increased sentence was not the product of judicial vindictiveness. We hold that no presumption of vindictiveness arose on the facts of this case. We further hold that even if there were a presumption of vindictiveness, it was overcome because the victim's testimony concerning her deteriorated condition constituted a legitimate nonvindictive reason for increasing Naydihor's sentence.

III

¶ 9. Naydihor's ineffective assistance of counsel claim is premised on defense counsel's failure to object to an alleged breach of a plea agreement. Under the familiar standard of Strickland v. Washington, 466 U.S. 668 (1984), the defendant must establish both that counsel's performance was deficient and that he was prejudiced as a result of that deficient performance. State v. Gordon, 2003 WI 69, ¶ 22, 262 Wis. 2d 380, 663 N.W.2d 765. Accordingly, the threshold inquiry on Naydihor's ineffective assistance of counsel claim is whether the State's actions constituted a breach of the plea agreement. If the State did not breach the plea agreement, then the failure of Naydihor's counsel to object did not constitute deficient performance, and the circuit court correctly ruled that Naydihor was not entitled to a Machner hearing.

¶ 10. This court set forth the standards for reviewing an alleged breach of a plea agreement in State v. Williams, 2002 WI 1, 249 Wis. 2d 492, 637 N.W.2d 733:

[A]n accused has a constitutional right to the enforcement of a negotiated plea agreement. . . .

A prosecutor who does not present the negotiated sentencing recommendation to the circuit court breaches the plea agreement. An actionable breach must not be merely a technical breach; it must be a material and substantial breach. When the breach is material and substantial, a plea agreement may be vacated or an accused may be entitled to resentencing.

Id., ¶¶ 37-38.

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¶ 11. Whether the State breached a plea agreement is a mixed question of fact and law. The precise terms of a plea agreement between the State and a defendant and the historical facts surrounding the State's alleged breach of that agreement are questions of fact. Id., ¶ 2. On appeal, the circuit court's determinations as to these facts are reviewed under the clearly erroneous standard. Id., ¶ 20. Whether the State's conduct constitutes a material and substantial breach of the plea agreement is a question of law that this court reviews de novo. Id. A breach is material and substantial when it "defeats the benefit for which the accused bargained." Id., ¶ 38.

¶ 12. While the parties...