concluding that a prosecutor's recommendation of a consecutive, rather than a concurrent, sentence was not merely a technical violation
How later courts described this case
- concluding that a prosecutor's recommendation of a consecutive, rather than a concurrent, sentence was not merely a technical violation
- holding "it is irrelevant whether the trial court was influenced by the State's alleged breach or chose to ignore the State's recommendation."
- acknowledging Smith’s holding that “prejudice is presumed” where the State materially and substantially breaches a plea agreement
- "[W] here a plea agreement undisputedly indicates that a recommendation is to be for concurrent sentences, an undisputed 11 recommendation of consecutive sentences that is not corrected at the sentencing hearing constitutes a material and substantial breach of the plea agreement as a matter of law."
Written by the judges who cited it.
The opinion
PETERSON, J.
¶ 39. (dissenting). The plea bargain in this case called for a sentencing recommendation by the State of no more than twenty-five years. The State recommended twenty-five years. The recommendation on one of the five felonies was to have been for time concurrent to the other four felonies. The State, however, recommended consecutive time. Even though the State recommended no more actual time than agreed, the majority concludes the State breached the agreement solely because it recommended consecutive rather than concurrent time on the one felony. I respectfully disagree.
*500 ¶ 40. As the majority correctly recognizes, Howard is not entitled to relief unless the breach of the plea agreement was material and substantial. See State v. Bangert, 131 Wis. 2d 246, 289 , 389 N.W.2d 12 (1986). This requires that Howard was deprived of a material and substantial benefit for which he bargained. See State v. Smith, 207 Wis. 2d 258, 272 , 558 N.W.2d 379 (1997).
¶ 41. The majority then states that the designation of concurrent or consecutive time "can" affect the actual amount of time served, the application of pre-sentence credit, parole eligibility dates, the date a defendant is allowed access to rehabilitative services, and other factors. It observes that there are a wide variety of reasons why a defendant may choose to negotiate for a promise to recommend concurrent time.
¶ 42. I agree with the opinion up to this point. However, the majority then jumps to the conclusion that the failure to recommend the concurrent time on the one felony sentence amounts to a material and substantial breach, apparently as a matter of law.
¶ 43. I cannot go that far. There is nothing in this record to establish that a recommendation for concurrent time was a material and substantial benefit to Howard. There is nothing to show, for example, that Howard believed such a recommendation would actually affect the amount of time served, the application of pre-sentence credit, the determination of his parole eligibility date, or the date he was allowed access to rehabilitative services. In short, there is nothing to show that Howard relied, in any degree, on the concurrent promise. Without this proof, we cannot say, in the words of Santobello, that Howard's plea rested "in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the *501 inducement or consideration . . . Santobello v. New York, 404 U.S. 257, 262 (1971).
¶44. For me the bottom line is that Howard received the essence of what he bargained for: a recommendation of twenty-five years maximum. Without proof that he relied in some important way on the concurrent part of the agreement, I view the State's breach as technical, not material and substantial. I would affirm.