State v. Sprang, 03-2240.

• Decision Date: 26 May 2004
• Docket Number: No. 03-2240.,03-2240.
• Citation: 683 N.W.2d 522,274 Wis.2d 784,2004 WI App 121
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Brian W. SPRANG, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

274 Wis.2d 784

2004 WI App 121

683 N.W.2d 522

STATE of Wisconsin, Plaintiff-Respondent, v. Brian W. SPRANG, Defendant-Appellant.

No. 03-2240.

Court of Appeals of Wisconsin.

Submitted on briefs April 22, 2004.

Decided May 26, 2004.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Jefren E. Olsen, assistant state public defender.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Sandra L. Nowack, assistant attorney general.

Before Brown, Nettesheim and Snyder, JJ.

¶ 1. NETTESHEIM, J.

Brian W. Sprang pled guilty to and was convicted of first-degree sexual assault of a child contrary to Wis. STAT. § 948.02(1) (2001-02).¹ Sprang appeals from that conviction and from a postconviction order denying his motion for a new sentencing hearing on grounds that the State's remarks at sentencing violated the terms of his plea agreement.

¶ 2. We conclude that the prosecutor's remarks constituted a material and substantial breach of the parties' plea agreement. Although Sprang's counsel chose not to object to the prosecutor's remarks for reasonable strategic reasons, we nevertheless conclude that his counsel's acquiescence to the revised plea agreement without consulting with Sprang or gaining his consent constituted deficient performance. We further conclude that counsel's failure prejudiced Sprang. We reverse the judgment and order and remand for a new sentencing proceeding before a different judge.

FACTS

Procedural History

¶ 3. On March 8, 2002, the State charged Sprang with one count of sexual contact with a child who has not attained the age of thirteen years contrary to Wis. STAT. § 948.02(1). Following a preliminary hearing on April 1, 2002, Sprang was bound over for trial. The State subsequently issued an Information reciting an additional charge of sexual contact with a child contrary to § 948.02(1).

¶ 4. On September 10, 2002, Sprang entered a guilty plea to one count of first-degree sexual assault of a child. Sprang's plea questionnaire was accompanied by an August 27, 2002, letter from the State confirming the parties' agreement that Sprang would plead to one count of first-degree sexual assault of a child and the remaining charge of sexual assault of a child would be dismissed and read in, as would an outstanding bail jumping charge in another case. Pursuant to the agreement, the State would "recommend probation but is free to argue length, structure, terms and conditions of probation," including the length of any jail condition. At the plea hearing, the State requested both a presentence investigation (PSI) and a sex offender evaluation.

¶ 5. Prior to sentencing, the trial court had received both the PSI report and the sex offender assessment. Both reports disagreed with the plea agreement's sentencing recommendation and the PSI report recommended prison time.² At sentencing, the court rejected the plea recommendation stating that probation with jail time "isn't going to work" and that a period of custody and extended supervision was necessary for rehabilitation. The court sentenced Sprang to a twelve-year bifurcated sentence with four years of confinement followed by eight years of extended supervision.

¶ 6. On June 26, 2003, Sprang, by his postconviction counsel, filed a Wis. STAT. RULE 809.30 motion for postconvicton relief requesting a resentencing before a different judge.³ Sprang contended that the State breached the plea agreement by arguing at sentencing in a manner that undermined its recommendation for probation. Sprang also raised an ineffective assistance of counsel argument based on his defense counsel's failure to object to the prosecutor's remarks. Following a postconviction motion hearing at which Sprang's defense counsel testified, the trial court denied Sprang's motion. Sprang appeals.

Prosecutor's Remarks⁴

¶ 7. At the sentencing hearing, the prosecutor began by correctly stating the terms of the plea agreement—essentially that the State would be recommending probation. He then noted the State's receipt of the PSI report and the sexual offender evaluation and his assessment from those documents that Sprang is "certainly high risk." The prosecutor then requested that "[i]f the Court accepts the recommendation of the State and places [Sprang] on supervision, I ask the Court give him the maximum period of jail available." He additionally requested that the court impose a lengthy imposed and stayed prison sentence so Sprang, with all of his problems, would know what is going to happen if he should ever be revoked.

¶ 8. The prosecutor then went on to discuss the impact of Sprang's offense on the victim and her family and the sex offender assessment. With respect to the sex offender assessment, the prosecutor noted that Sprang's protestations of innocence to the assessor conflicted with his guilty plea and indicated that Sprang had no sense of responsibility for his conduct and no insight into his problems. Based on that assessment, the prosecutor requested supervision of an "incredibly strict nature." ¶ 9. The prosecutor then moved on to statements he said would address Sprang's character, the seriousness of his offense and the need to protect the public. The prosecutor noted that Sprang had not traditionally done well with supervision and had committed "one of the most serious offenses that the State can charge in this state" which carries "the second highest penalty that a non-enhanced felony can carry." The prosecutor noted a definite need to protect the public. He then expressed his concern about appropriate treatment while noting that the sexual offender assessment did not agree with the plea recommendation and the PSI author, after conducting a "thorough presentence," made "a recommendation referring to initial confinement in the three- to five-year range."

¶ 10. The prosecutor then explained that he had inquired of the PSI author how treatment would be run in prison and was informed that it would take six to nine months to get someone into the program and then six months to four years to complete a treatment program. He indicated that he was "pass[ing] that along to the Court for whatever help it may or may not be in terms of if the Court ... chooses to send [Sprang] to prison ... or chooses to accept the plea agreement." The prosecutor then closed his remarks.

¶ 11. Sprang's counsel did not object to the prosecutor's remarks. However, he began his statements by observing that "what [the prosecutor] has said, I fear if somebody ever looks at a transcript, this might be considered a violation of the plea agreement." He then asked the prosecutor to summarize his recommendation one more time. The prosecutor declined to do so and the trial court directed the defense to move on, stating that the recommendation was clear.

DISCUSSION

¶ 12. At the outset, we briefly address the State's argument that Sprang waived his right to claim a breach of his plea agreement because his defense counsel failed to object to the prosecutor's remarks at sentencing. While the issue is waived because of defense counsel's failure to object, Sprang seeks relief via a claim of ineffective assistance of counsel based on the failure to object.

¶ 13. Before addressing Sprang's claim of ineffective assistance of counsel, we must first address whether there was, in fact, a material and substantial breach of the plea agreement. State v. Naydihor, 2004 WI 43, ¶ 9, 270 Wis. 2d 585, 678 N.W.2d 220. If we conclude that there was not a breach of the plea agreement, then defense counsel's failure to object would not constitute deficient performance. Id. We therefore turn to the primary issue on appeal—whether the State breached the terms of its plea agreement with Sprang.

Breach of the Plea Agreement

¶ 14. Our supreme court recently set forth the standards for reviewing an alleged breach of a plea agreement in Naydihor:

[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.

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. On appeal, the circuit court's determinations as to these facts are reviewed under the clearly erroneous standard. 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. A breach is material and substantial when it "defeats the benefit for which the accused bargained."

Id., ¶¶ 10-11 (citing State v. Williams, 2002 WI 1, 249 Wis. 2d 492, 637 N.W.2d 733).

¶ 15. Here, the parties do not dispute the terms of the plea agreement. Therefore, our discussion focuses on whether the State's conduct constitutes a material and substantial breach of the plea agreement. On this issue, we have the benefit of the supreme court's recent opinion in Naydihor.⁵

¶ 16. In Naydihor, the defendant and the State reached an agreement similar to the one in this case— the State would recommend probation, but was free to recommend the conditions and length of probation. Naydihor, 678 N.W.2d 220, ¶¶ 3, 12. On appeal, Naydihor argued that the prosecutor's comments at sentencing constituted a material and substantial breach of the plea agreement because the prosecutor implied to the court that a harsher sentence was needed than that recommended and highlighted Naydihor's negative attributes, i.e., his history of...