Opinion
Case No. 95-1631-CR.
Opinion Released: May 2, 1996 Opinion Filed: May 2, 1996 Not recommended for publication in the official reports.
APPEAL from an order of the circuit court for Portage County: JOHN V. FINN, Judge. Affirmed.
Before Eich, C.J., Dykman and Sundby, JJ.
Ronald V. Kurszewski appeals from an order denying his motion for postconviction relief. The issue is whether Kurszewski received ineffective assistance of trial counsel because of counsel's failure to object at sentencing when the prosecutor allegedly breached a plea agreement. We conclude that Kurszewski was not prejudiced by counsel's alleged error and therefore affirm.
BACKGROUND
Kurszewski pleaded no contest to one count of burglary, contrary to § 943.10, STATS., and one count of aggravated battery, contrary to § 940.19(3), STATS. According to Kurszewski, the State agreed to recommend a two-year probation term, restitution, a three-month jail sentence, an alcohol or drug addiction assessment and no penalty enhancer. At the sentencing hearing, however, the prosecutor recommended a two-year prison term on the burglary charge and a consecutive three-year term on the aggravated battery charge. Kurszewski's counsel did not object. The trial court sentenced Kurszewski to a five-year term on the burglary charge and a concurrent two-year term on the aggravated battery charge.
Kurszewski filed a postconviction motion, arguing ineffective assistance of trial counsel. He asserted that counsel's failure to object to the breach in the plea agreement prejudiced him. The trial court found that no plea agreement existed at the time of sentencing, and denied Kurszewski's motion. Kurszewski appeals.
STANDARD OF REVIEW
The standard of review of an ineffective assistance of counsel claim is a mixed question of law and fact. State v. Johnson , 153 Wis.2d 121, 127, 449 N.W.2d 845, 848 (1990). In reviewing the trial court's decision, we will not reverse its findings of fact unless they are clearly erroneous. Id. But the ultimate determination of whether counsel's performance was deficient and prejudicial to the defendant are questions of law which we review de novo. Id. at 128, 449 N.W.2d at 848.
INEFFECTIVE ASSISTANCE OF COUNSEL
The United States Supreme Court set out a two-part test for ineffective assistance of counsel claims in Strickland v. Washington , 466 U.S. 668 (1984). The defendant must show that counsel's performance was deficient and that the deficient performance prejudiced the defendant. Id. at 687. We may address the prejudice question first if it is easier to dispose of the effectiveness claim. Id. at 697.
The defendant has the burden to affirmatively prove prejudice. Johnson , 153 Wis.2d at 129, 449 N.W.2d at 848. To meet this burden, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland , 466 U.S. at 694. We focus, therefore, on whether the error causes us to believe that the outcome has been rendered unreliable. "In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results." Id. at 696.
Kurszewski claims he received ineffective assistance of trial counsel because counsel failed to object during his sentencing hearing when the prosecutor allegedly breached their plea agreement by recommending a longer prison sentence. In State v. Smith , 198 Wis.2d 820, 543 N.W.2d 836 (Ct.App. 1995), the defendant also argued that he received ineffective assistance of counsel when counsel failed to object when the prosecutor breached a plea agreement. In Smith , we rejected the defendant's prejudice argument because the trial court informed the defendant that it was not bound by the prosecutor's recommendations, did not refer to the prosecutor's recommendations when passing sentence, provided its own reasons for the sentence, and relied on the sentencing guidelines, the defendant's extensive criminal history and character, and the number of crimes involved. Id. at 825-28, 543 N.W.2d at 838-39.
On March 12, 1996, the Wisconsin Supreme Court granted the defendant's petition for review in this case.
Here, we similarly conclude that any deficiency in counsel's performance did not prejudice Kurszewski. At the plea hearing, the trial court informed Kurszewski that it was not bound by any plea agreement and that it could sentence him with the maximum penalties for each offense. Kurszewski acknowledged that he understood this fact. As in Smith , the trial court did not rely on the prosecutor's sentencing recommendation in imposing sentence and instead, it set forth its own reasons for imposing a seven-year sentence:
This, indeed, is a crime that by the seriousness alone, the Legislature has determined that the maximum penalty for this, for burglary is 10 years in the Wisconsin State prison system. . . . It is out of character for this ordinarily one would see a pattern of criminal activity then followed by a substantial major crime such as the one this defendant has committed here. That is not the case here. He explains that by alcohol and indeed it is crystal clear that this defendant has a serious, serious alcohol abuse problem. . . .
. . . .
The law indicates that the Court must first consider probation as the, in determining what is an appropriate disposition for the case. With the defendant's limited criminal background, I suppose an argument could be made for probation. But one has to consider the seriousness of this, the seriousness of this crime and after, only after considering the seriousness of the crime determine that this is not a case for probation. To place this defendant on probation would seriously depreciate and undermine the seriousness of this crime. . . . Considering the factors that I have considered on the burglary count just, which is count 1, it is the sentence of this Court that the defendant be and is hereby sent to an indeterminate sentence in the Wisconsin State prison system which shall have a maximum of three years.
Under count 2, it is the sentence of this Court that the defendant be and is hereby sent to an indeterminate sentence in the Wisconsin State prison system which shall have a maximum of two years. That sentence is to run concurrent with the sentence under count 1.
The trial court's statements at sentencing demonstrate that it made its own independent decision about the appropriate sentence. This permits us to maintain confidence in the outcome. Kurszewski has failed to show that if the prosecutor had followed the alleged plea agreement or if counsel had objected, there was a reasonable probability that he would have received a different sentence. We therefore reject his ineffective assistance of counsel claim and affirm.
By the Court. — Order affirmed.
The majority does not address the two issues raised by defendant-appellant Ronald V. Kurszewski which I consider dispositive:
I. Did an enforceable plea agreement exist between the district attorney and trial counsel at the sentencing hearing?
. . . .
III. Is the appropriate remedy [for] breach in the plea agreement resentencing?
On June 8, 1995, the trial court entered its memorandum decision finding that no plea agreement existed at the time of sentencing defendant-appellant Ronald Kurszewski. The court held that because there was no plea agreement, trial counsel's performance could not have been deficient for failure to object to a breach of a plea agreement that did not exist. The court therefore denied defendant's motion.
I conclude that the trial court's finding that there was no plea agreement is clearly erroneous.
Before I review the facts, it will be helpful to examine the nature of a plea agreement. First, a criminal defendant has a constitutional right to the enforcement of a plea bargain. State v. Wills , 187 Wis.2d 529, 536-37, 523 N.W.2d 569, 572 (Ct.App. 1994) (quoting Mabry v. Johnson , 467 U.S. 504, 507-08 (1984)), aff'd, 193 Wis.2d 273, 533 N.W.2d 165 (1995). That constitutional right arises when the defendant enters his or her plea. Id . at 537, 523 N.W.2d at 572.
A plea bargain is also a contract, and an analysis of its existence and breach is to be made as are commercial contracts. See id .
Defendant was charged in an information filed August 3, 1993, with one count of burglary and one count of aggravated battery. On June 25, 1993, defendant signed a Plea Advisement and Waiver of Rights form in which he stated:
I have entered in[to] a plea agreement. My understanding of the plea agreement is: [I]n exchange for my plea of other than not guilty to burglary and aggravated battery, the penalty enhancer language will be dropped, probation for two years, an AODA assessment, restitution of approx. $173.13, 3 months jail and a pre-sentence investigation.
On August 3, 1993, defendant appeared with his attorney and the district attorney appeared. Defendant's attorney waived a preliminary hearing and the Plea Advisement and Waiver of Rights form was filed. The court accepted defendant's plea and ordered a pre-sentence investigation. The district attorney did not object to the plea advisement. Sentencing was set for December 22, 1993.
The pre-sentence report (PSI) filed November 22, 1993, recommended imprisonment because of the seriousness of defendant's offenses. The report is silent as to the existence of a plea agreement.
The sentencing hearing was held January 3, 1994. The district attorney appeared and defendant was represented by counsel. The district attorney concurred in the recommendations of the PSI. Defendant's counsel argued against the district attorney's recommendation and asked that the defendant be sentenced according to what was "recommended initially by the District Attorney." The court imposed the sentence recommended by the PSI and did not mention the plea agreement.
On June 9, 1994, defendant appeared in person on his pro se motion for postconviction relief. The court granted his request for continuance to obtain counsel. On December 29, 1994, new counsel filed a postconviction motion on behalf of defendant in which defendant alleged that his trial counsel failed to object to the prosecutor's breach of the plea agreement with the district attorney, represented by the Plea Advisement form and notes of the district attorney to the effect that she and the defendant would jointly recommend the plea agreement set forth in the Plea Advisement form.
Because the prior proceedings affect the March 3, 1995 hearing on defendant's motion, I will discuss those proceedings before reviewing the transcript of the March 3 hearing.
The trial court sentenced defendant's co-actor Brian J. Bembenek on June 2, 1993. Pursuant to a plea agreement, the district attorney agreed to reduce the charge of party to the crime of robbery to burglary, a withheld sentence, two years probation, sixty days in the county jail and an AODA assessment, with no pre-sentence investigation. The trial court refused to accept the plea bargain and ordered a pre-sentence investigation.
On August 3, 1993, defendant appeared by counsel and the district attorney appeared at defendant's initial appearance and plea hearing. Defendant's counsel informed the court that "[w]e did arrive at a plea agreement [and] [m]y client . . . will . . . plead guilty . . . at this time, and the plea agreement is outlined in our plea advisement, and that is before the Court, and there would be a pre-sentence investigation." After the Bangert inquiry, the trial court accepted defendant's guilty plea. The district attorney did not claim that there was no plea agreement and did not contradict defendant's counsel as to the terms of that agreement. Therefore, at that time, defendant's due process right had vested. "A plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest. It is the ensuing . . . plea that implicates the Constitution." Wills , 187 Wis.2d at 536-37, 523 N.W.2d at 572 (quoting Mabry , 467 U.S. at 507-08) (emphasis added). Also, at that time, the plea agreement no longer was a mere executory agreement; it had been consummated.
State v. Bangert , 131 Wis.2d 246, 389 N.W.2d 12 (1986).
At the March 3, 1995 hearing on defendant's post-conviction motion, defendant's trial counsel testified, as did the district attorney. Counsel testified that there was a plea agreement between him and the district attorney. He further testified that the plea agreement shown on the Plea Advisement and Waiver of Rights form was the result of negotiations with the district attorney. He further testified that the district attorney never withdrew that agreement. Counsel testified that he objected to the sentencing recommendation made by the district attorney at the time of sentencing. The transcript of the sentencing hearing shows that trial counsel's objection was in the form of recommending to the court the plea agreement which had been reached. He agreed that he did not make his objection contemporaneous with the district attorney's recommendation. He explained: "The only reason I didn't do it is I was going to have an opportunity in my argument, and in fact I did it at that time. There's no reason to object contemporaneously, particularly since it was on file."
On cross-examination, trial counsel testified that the plea agreement was entered into at a pretrial conference, but the Plea Advisement form was not filled out with the defendant for approximately two to two-and-one-half months later. Then, it was filed with the court approximately six weeks later at the sentencing hearing. He denied that there was ever any indication on the part of the district attorney that her recommendation would depend on the pre-sentence investigation report.
The assistant district attorney cross-examined trial counsel at length as to whether he really believed that the district attorney would make such an "astounding recommendation" in view of the seriousness of defendant's offense. The trial court allowed this line of questioning despite defendant's objection that this was irrelevant to whether there was a plea agreement. Counsel also agreed that he had no other conversation with the district attorney after the Plea Advisement form was filed. However, he pointed out that the district attorney was present at the hearing when the Plea Advisement form was filed with the court.
The thrust of the State's questioning of trial counsel was that he should have immediately objected to the district attorney's recommendation which was contrary to the plea agreement. Counsel agreed that he had stated the agreement with the district attorney at the sentencing hearing as follows:
We had a plea agreement with the district attorney, and that plea agreement was that for a plea of other than not guilty to burglary and aggravated battery, the penalty enhancer language would be dropped, probation would be recommended for two years, and AODA assessment, restitution, . . . three months in jail and a pre-sentence investigation. That was the recommendation.
The assistant district attorney implied that counsel's use of the past tense indicated that the agreement no longer existed at that time. However, counsel responded: "Past tense would be correct, after what the district attorney said." (Emphasis added.) Counsel also stated to the court: "I believe what we have recommended and what was recommended initially by the District Attorney is sufficient." (Emphasis added.) The assistant district attorney questioned counsel whether by using the word "initially" he intended to suggest there was a subsequent agreement. However, counsel testified that there was "never a subsequent agreement, ever."
Counsel also testified that on April 21, 1993, he wrote to the defendant outlining the plea agreement. That letter was introduced as Exhibit 5.
Counsel admitted that he was aware from newspaper accounts that the trial court had not accepted the State's recommendation in the Bembenek case and "knew we were in trouble." He testified that he expressed fears to the defendant which "were in fact prophetic." He also testified, however, that the court's failure to follow the State's recommendation in the Bembenek case had "nothing to do with our agreement with [the district attorney]." He discussed with the defendant the possibility of withdrawing his plea. He acknowledged that the defendant was aware several weeks before sentencing that the trial court had not gone along with the State's recommendation as to Bembenek.
The district attorney testified that she had negotiated with defendant's trial counsel for a plea. The negotiations were "quite extensive." The State introduced Exhibit 3 which were notes the district attorney made January 28, 1993, of a telephone conversation with defendant's counsel as to a possible plea agreement.
The district attorney testified that the negotiations were
very long and, . . . sort of complicated kind of procedural process in developing . . . a plea agreement that was acceptable.
I really don't have any recollection as to whether or not I was going to be bound by the original recommendation of two years. I know that by the time . . . January of '94 . . . [defendant] had again been charged with another serious felony.
(Emphasis added.) She also acknowledged that defendant's counsel "may have" shown her the Plea Advisement form before defendant entered his plea. However, she testified that it was her recollection that she would have withdrawn the plea agreement "given the other charges that had been issued." She also testified that she didn't recall whether she was committed to recommending anything at the time defendant entered his guilty plea. She summed up that her recollection of the effect of the four different notes in her handwriting as to the plea negotiations was that there was a "consistent notation . . . that a PSI would be ordered . . . I do recall there being that meeting of minds. The other aspects of it, I don't recall."
In fact, the transcript of the plea hearing shows that defendant's counsel agreed to a pre-sentence investigation at the same time he put on the record, without objection from the district attorney, the other terms of the plea agreement stated in the Plea Advisement form.
The district attorney was asked the following question and gave the following answer:
Q. . . . [A]s you sit here today, do you believe in fact that there was a plea agreement between you and [defense counsel] on this case? I mean, at some point, whether it was changed or not, breached or not, do you believe that there was at some point a meeting of minds?
A. I think there was at some point.
The State asked the court to take judicial notice of the fact that prior to sentencing, defendant was charged with additional criminal conduct.
On cross-examination, the district attorney testified that, in response to appellate counsel's request, she had faxed a note as to what the plea agreement was in this case. She was asked the following question and gave the following answer:
Q. And at the time you faxed this, did you believe that was the plea agreement that you had with [defense counsel] in this case?
A. . . . [O]n April 7, 1993 that was . . . the plea agreement.
She also acknowledged that she had basically made the same recommendation as to Bembenek that she made as to defendant. She was asked the following questions and gave the following answers:
Q. So would you agree that in fact you followed that plea agreement that you had reached on 4/7/93 with Mr. Bablitch in reference to Mr. Bembenek?
A. Correct.
Q. And isn't it true that on 4/7/93 you also reached an agreement with [defense counsel] regarding [defendant]?
A. . . . The record may reflect that. I don't recall.
. . . .
Q. Viewing . . . exhibit [No. 6], does that help you refresh your recollection at all as to whether or not you ever had a plea agreement with [defense counsel] in regards to [defendant]?
A. I think I stated that I did have a plea agreement with him.
Q. And is the plea agreement that you had with him correctly outlined on Plaintiff's Exhibit No. 6?
A. . . . [I]t would appear to be.
The district attorney advised that she never applied to the court to be relieved of the plea agreement with defendant. She also agreed that she could not unilaterally withdraw from a plea agreement: "No. A prosecutor cannot do that, should not do that." She was correct. See State v. Poole , 131 Wis.2d 359, 394 N.W.2d 909 (Ct.App. 1986).
The district attorney was as honest and forthright as her memory would allow. While she did not remember the specifics of her negotiations with defense counsel, there was a paper trail which clearly established that there was a plea agreement. The fact that between the time of the plea agreement and sentencing, defendant was charged with an additional offense is irrelevant to the question of the existence of the plea agreement. See id. at 361, 394 N.W.2d at 910. If the defendant were convicted of the additional offense, his previous offenses would have been taken into consideration at the time of sentencing on that offense.
This is not a case in which the facts are disputed. The trial court seems to have believed that the prosecutor was free to withdraw from the plea agreement because the court had signalled to the prosecutor in another case that the trial court would not accept the plea agreement. That is contrary to the law. See id . at 363, 394 N.W.2d at 911 ("[J]udicial adhesive cannot mend the prosecutor's broken promise.") (quoting Snowden v. State , 365 A.2d 321, 325 (Md. Ct. Spec. App. 1976)). The trial court's conclusion that there was no plea agreement is expressly contrary to the district attorney's admission. The trial court based its conclusion on the fact that at the plea hearing the district attorney did not state affirmatively that she had agreed to the plea agreement shown in the Plea Advisement form. However, defense counsel put the plea agreement on the record and the district attorney did not object. At that point, defendant's due process rights adhered and there was a contract between the defendant and the State. Thereafter, the State was judicially estopped from claiming there was no plea agreement. See State v. Fleming , 181 Wis.2d 546, 556-60, 510 N.W.2d 837, 840-42 (Ct.App. 1993).
The transcript of the trial court's decision clearly reveals that the trial court based its conclusion that there was no plea agreement at the time of sentencing on things which happened between the plea hearing and sentencing. Despite these events, the prosecutor never sought to withdraw from the plea agreement. The State does not now and never has argued that a prosecutor may unilaterally withdraw from a plea agreement without effecting some breach of the agreement. It was not a condition of the plea agreement that the defendant not be involved in any other criminal activity. While that is a fairly common provision of plea agreements, the prosecutor did not choose in this case to make that requirement.
I therefore conclude that the order denying defendant's motion for postconviction relief must be reversed. I dissent. In Wills , we said that defendant's remedy was to be resentenced. I see no reason why that should not be the appropriate remedy in this case.