State v. Smith

Decision Date06 February 1997
Docket Number94-3365-C,94-3367-CR,94-3366-C,Nos. 94-3364-C,s. 94-3364-C
Citation558 N.W.2d 379,207 Wis.2d 258
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Tony M. SMITH, Defendant-Appellant-Petitioner.
CourtWisconsin Supreme Court

For the defendant-appellant-petitioner there were briefs by John Allan Pray and Legal Assistance Program, University of Wisconsin Law School, Madison and oral argument by John Allan Pray.

For the plaintiff-respondent the cause was argued by William L. Gansner, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.

¶1 JANINE P. GESKE, Justice

This is a review of a published decision of the court of appeals 1 affirming an order of the circuit court for Milwaukee County, Maxine A. White, judge, denying Smith's postconviction motion. Smith seeks resentencing on the grounds that his counsel provided ineffective assistance by failing to object at Smith's sentencing hearing when the prosecutor breached the plea agreement. We conclude that defense counsel's performance was deficient, and that Smith was prejudiced by the State's material and substantial breach of the plea agreement. We therefore reverse the decisions of the lower courts and remand for a new sentencing hearing.


¶2 Prior to his conviction, defendant Smith and the Milwaukee County Assistant District Attorney negotiated a plea agreement whereby Smith agreed to plead no contest to one count of burglary and guilty to four misdemeanors. 2 Under the terms of the plea agreement, the State agreed to dismiss three additional misdemeanor charges against Smith. Those charges were to be read in at sentencing. The prosecutor also agreed to make no sentencing recommendation. Judge Leander J. Foley presided over the plea hearing. In accepting Smith's plea, the circuit court informed him that he could be sentenced to the maximum prison term for ¶3 Judge John J. DiMotto presided over the sentencing hearing. At that hearing, and contrary to the plea agreement, the prosecutor recommended that Smith be sentenced to 58 months in prison. Smith's counsel did not object to the prosecutor's recommendation. Defense counsel then recommended a prison sentence of 36 months. The circuit court sentenced Smith to six years in prison on the burglary count and nine months in jail on each misdemeanor to run concurrently with the burglary sentence. The court analyzed a number of factors appropriate for sentencing and never mentioned the State's recommendation of 58 months. 3

each offense. The court then ordered a pre-sentence investigation.

¶4 Smith filed several motions after his sentencing. First, he filed two motions that were heard by Judge DiMotto. 4 Later, Smith filed a postconviction motion, pursuant to Wis. Stat. § 809.30, alleging ineffective assistance of counsel. He alleged that his trial counsel was ineffective for failing to object during sentencing when the plea agreement was breached. The ineffective assistance motion was filed after the court of appeals granted Smith's motion to extend time for filing a notice of appeal.

¶5 Judge Maxine A. White was assigned to handle the latter postconviction motion. Without a hearing, and without a response from the State, the circuit court denied Smith's motion alleging ineffective assistance. The court first concluded that defense counsel's failure to object at the sentencing constituted deficient performance. The court also found that the sentencing court did not rely on the prosecutor's sentencing recommendation. Therefore, the circuit court held that defense counsel's deficient performance did not prejudice the outcome of the sentencing. Smith appealed.

¶6 On appeal Smith asserted that by recommending a sentence the prosecutor had committed a material and substantial breach of the plea agreement. By doing so, Smith contended, the prosecutor denied Smith what he bargained for. Smith agreed with the circuit court's conclusion that under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), 5 the deficient performance component of the ineffective assistance of counsel test was met when his attorney failed to object to the prosecutor's breach.

¶7 Smith next contended that the Strickland decision rejected an outcome-determinative test for proving the prejudice component of an ineffective assistance claim. Smith maintained that the outcome was affected because if the State had not breached the plea agreement, or if his counsel had objected to the breach, Smith would have received the State's "no recommendation" statement for which he negotiated. Smith also contended at the court of appeals, as he does here, that prejudice can be presumed from his counsel's deficient performance in this case.

¶8 In response, the State conceded at the court of appeals that the prosecutor breached the plea agreement. 6 The State also agreed that defense counsel's deficient performance ¶9 The appellate court upheld the circuit court's determination of deficient performance by Smith's trial attorney. 198 Wis.2d at 824, 543 N.W.2d 836. The court of appeals likewise upheld the lower court's conclusion that Smith was not prejudiced by his counsel's performance, for two reasons. First, the court of appeals underscored the fact that Judge Foley, in accepting Smith's plea, informed Smith that the court was not bound by the prosecutor's recommendations, and that the court could sentence Smith up to the maximum prison term for each offense. 198 Wis.2d at 825, 543 N.W.2d 836. Smith acknowledged at the plea hearing that he understood this possibility.

prejudiced Smith because a term of his agreement with the State was not met. The State conceded that together, the breach of the plea agreement and the failure to object to that breach rendered the proceedings flawed and unfair. According to the State, the proper focus then was not whether Judge DiMotto would have imposed a different sentence if Smith's counsel had objected, but whether the sentencing proceeding itself would have been altered. Before the court of appeals, the State agreed with Smith that he was entitled to relief in the form of resentencing.

¶10 Second, the court of appeals held that Judge DiMotto relied on the sentencing guidelines, Smith's prior record, his character, and the number of crimes involved, and did not rely on the prosecutor's recommendation when deciding Smith's sentence. 198 Wis.2d at 827, 543 N.W.2d 836. In fact, the court of appeals surmised that Judge DiMotto "apparently ignored the prosecutor's recommendation." Id. Because the sentencing judge did not rely on the prosecutor's recommendation, the court held that Smith did not show a reasonable probability that, in the absence of his counsel's failure to object, the "result of the proceeding would have been different," 198 Wis.2d at 827, 543 N.W.2d 836 (citing Strickland, 466 U.S at 694, 104 S.Ct. at 2068). According to the court of appeals, Smith failed to show that if the prosecutor had not made a sentencing recommendation, or if Smith's counsel had objected to such a recommendation, there was a reasonable probability that Smith would have received a lesser sentence. Id.


¶11 When the facts are undisputed, the question of whether the prosecutor's conduct breached the terms of the plea agreement is a question of law that we review de novo. State v. Wills, 193 Wis.2d 273, 277, 533 N.W.2d 165 (1995). The question of whether counsel's actions constitute ineffective assistance is a mixed question of law and fact. State ex rel. Flores v. State, 183 Wis.2d 587, 609, 516 N.W.2d 362 (1994)(citing Strickland, 466 U.S. at 698, 104 S.Ct. at 2070). The circuit court's findings of fact will not be reversed unless they are clearly erroneous. State v. Pitsch, 124 Wis.2d 628, 633-34, 369 N.W.2d 711 (1985); Wis. Stat. § 805.17(2). Finally, the ultimate conclusion of whether counsel's conduct violated Smith's right to effective assistance of counsel is a question of law that this court decides without deference to the lower courts. 7 State v. [Oliver Ross] Johnson, 133 Wis.2d 207, 216, 395 N.W.2d 176 (1986); State v. Ludwig, 124 Wis.2d 600, 607, 369 N.W.2d 722 (1985).


¶12 Both parties come to us concerned with the integrity of the plea process. Smith argues that he was prejudiced because he did not receive a material and substantial benefit of the agreement he made with the State, a sentencing without any recommendation by the prosecutor. The State is likewise concerned that the integrity of the plea process be preserved, but argues here that Smith has not been prejudiced. 8

¶13 Smith contends that he was denied his right to effective assistance of counsel by his attorney's failure to object when the prosecutor recommended a sentence in violation of their plea agreement. First, he asserts that the prosecutor's recommendation was a material and substantial breach of the negotiated plea agreement. Second, Smith asserts that his counsel's failure to object to the prosecutor's recommendation constituted deficient performance. Third, Smith contends that he was prejudiced both because he did not receive what the State promised him in the plea agreement and because his defense counsel failed to object to the broken promise. Smith seeks a remand for resentencing under the terms of the original plea agreement.

¶14 The State agrees that the circuit court order summarily denying Smith's motion for postconviction relief should be reversed. First, the State has conceded throughout these proceedings that by recommending a sentence of 58 months, the prosecutor breached the terms of the plea agreement with Smith. 9 Second, the State has likewise conceded throughout these proceedings that the adversary process did not properly function here, and that defense counsel's failure to object at the sentencing hearings constituted deficient performance. Before the...

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