                                                                       2016 WI 17

                  SUPREME COURT              OF    WISCONSIN
CASE NO.:                2014AP1248-CR, 2014AP1249-CR, 2014AP1250-CR,
                         2014AP1251-CR
COMPLETE TITLE:          State of Wisconsin,
                                   Plaintiff-Respondent,
                              v.
                         Patrick K. Tourville,
                                   Defendant-Appellant-Petitioner.

                            REVIEW OF A DECISION OF THE COURT OF APPEALS
                           (Reported at 363 Wis. 2d 656, 862 N.W.2d 903)
                                    (Ct. App. 2015 – Unpublished)

OPINION FILED:           March 15, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           December 15, 2015

SOURCE OF APPEAL:
   COURT:                Circuit
   COUNTY:               Polk
   JUDGE:                Molly E. GaleWyrick

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:

ATTORNEYS:
       For the defendant-appellant-petitioner, there were briefs
by John A. Pray and the Frank J. Remington Center, University of
Wisconsin Law School, and oral argument by John A. Pray.




       For    the       plaintiff-respondent,     the   cause   was   argued   by
Jeffrey Kassel, assistant attorney general, with whom on the
brief was Brad Schimel, attorney general.
                                                                         2016 WI 17
                                                                 NOTICE
                                                   This opinion is subject to further
                                                   editing and modification.   The final
                                                   version will appear in the bound
                                                   volume of the official reports.

Nos.        2014AP1248-CR, 2014AP1249-CR, 2014AP1250-CR,
            2014AP1251-CR
(L.C. Nos.    2012CF27, 2011CF293, 2011CF376, 2013CF107)

STATE OF WISCONSIN                             :            IN SUPREME COURT

State of Wisconsin,

             Plaintiff-Respondent,
                                                                      FILED
       v.                                                        MAR 15, 2016

Patrick K. Tourville,                                               Diane M. Fremgen
                                                                 Clerk of Supreme Court

             Defendant-Appellant-Petitioner.




       REVIEW of a decision of the court of appeals.                Affirmed.



       ¶1    ANN WALSH BRADLEY, J.         Petitioner, Patrick Tourville

("Tourville"), seeks review of an unpublished court of appeals

decision denying his motion for post-conviction relief.1                             He

asserts that his trial counsel was ineffective for failing to

object after the State allegedly breached the plea agreement by

recommending      consecutive     sentences.        Additionally,         Tourville


       1
       State v. Tourville, Nos. 2014AP1248-CR, 2014AP1249-CR,
2014AP1250-CR, 2014AP1251-CR, unpublished slip op., (Wis. Ct.
App. March 31, 2015) (affirming judgment and order entered by
the circuit    for Polk County, Molly E. GaleWyrick, J.,
presiding).
                                                  Nos.    2014AP1248-CR thru 2014AP1251-CR



contends that there was an insufficient factual basis for the

court to accept his guilty plea to the charge of party to the

crime of felony theft.

      ¶2     Like       the   circuit    court           and   court     of   appeals,    we

conclude     that   Tourville's         trial      counsel       was    not   ineffective.

Given   that      the    State    did   not       breach       the     plea   agreement   by

arguing for consecutive sentences, Tourville fails to establish

the     deficient        performance        necessary            for     an    ineffective

assistance of counsel claim.

      ¶3     We     also         conclude         that         the      circuit     court's

determination was not clearly erroneous.                        There was a sufficient

factual basis to accept Tourville's guilty plea to the charge of

party to the crime of felony theft.                        He willingly aided others

who engaged in felony theft by taking them to his campsite,

helping them open the safe, and disposing of the ill-gotten

property.      Accordingly, we affirm the court of appeals.

                                                  I.

      ¶4     The underlying facts in this case are taken from the
amended criminal complaint in case no. 2012CF27.                                  The State

charged     Tourville         with   seventeen            criminal       counts    in   four

separate, unrelated cases:


           Case No. 2011CF293:      Operating a motor vehicle
           without the owner's consent, misdemeanor theft, and
           obstructing an officer, with all counts charged as a
           repeater.
           Case No. 2011CF376:   Burglary while arming himself
           with a dangerous weapon, two counts of theft of a
           firearm, misdemeanor theft, felony bail jumping, and

                                              2
                                               Nos.    2014AP1248-CR thru 2014AP1251-CR


         possession of a firearm by a felon, with all counts
         charged as a repeater.

         Case No. 2012CF27:    Party to the crime of felony
         theft, possession of a firearm by a felon, with both
         counts charged as a repeater.

         Case   No.   2013CF107:       Possession   of   drug
         paraphernalia and five counts of felony bail
         jumping, with all counts charged as a repeater.

    ¶5        All charges from these four cases were incorporated

into a single plea agreement.              Tourville agreed to plead guilty

or no-contest to felony theft as a party to a crime, felony bail

jumping,      burglary   while     armed       with      a   dangerous      weapon    and

misdemeanor     theft,      all   as   a   repeater.         The    State    agreed    to

dismiss and read in the remaining counts.

    ¶6        The circuit court received a plea questionnaire/waiver

of rights form for each of the four cases.                         In three cases, a

signed addendum was attached to the form that set forth the

terms    of    the   plea    agreement.2              Only   Tourville      signed    the

addendum.       Terms of the plea agreement stated in the signed

addendum included:          "The joint sentencing recommendation is to




    2
       There was no addendum setting forth the terms of the plea
agreement attached to Case No. 2013CF107. However, all charges
from the four criminal cases were incorporated into a single
plea agreement and there is no argument advanced that the plea
does not apply to Case No. 2013CF107. The four cases were also
consolidated for appeal.


                                           3
                                         Nos.   2014AP1248-CR thru 2014AP1251-CR



order    a   presentence   investigation;       the   state    will   cap   its

recommendation at the high end of what the PSI orders."3

     ¶7      A Presentence Investigation Report ("PSI") was filed

with the court.       It suggested a range of initial confinement

("IC") and extended supervision ("ES") for each charge, but made

no recommendation regarding concurrent or consecutive sentences.

The PSI recommended:

              Case No. 2011CF293:        16-18 months IC, 6 months
              ES

              Case No. 2011CF376:    4-6 years IC, 3-4 years ES

              Case No. 2012CF27:    16-18 months IC, 6 months ES

              Case No. 2013CF107:    1-2 years IC, 2 years ES
The circuit court asked Tourville's trial counsel if there were

any errors or omissions in the PSI's recommendations that needed

to be clarified.        He responded that there were no errors or

omissions in the PSI.

     ¶8      During   sentencing,   the     prosecutor      argued    for   the

maximum in the PSI's ranges of sentencing recommendations.                   He

sought the following:

             Case No. 2011CF293:    18 months IC, 6 months ES

             Case No. 2011CF376:    6 years IC, 4 years ES

     3
       The State argues in the alternative that it did not agree
to limit its sentencing recommendation to the "high end" of the
PSI recommendation and requests the case be remanded for factual
findings regarding the terms of the plea agreement if we
determine the agreement was breached. We need not address this
argument because we determine that the State did not breach the
terms of the plea agreement.


                                     4
                                                Nos.    2014AP1248-CR thru 2014AP1251-CR


             Case No. 2012CF27:          18 months IC, 6 months ES

             Case No. 2013CF107:          2 years IC, 2 years ES
The prosecutor also recommended that the circuit court impose

consecutive sentences in all four cases, despite the fact that

the PSI was silent on this issue.

      ¶9     Tourville's      trial      counsel        did   not      object   when   the

State recommended consecutive sentences.                      At the post-conviction

motion hearing, he testified that there was no strategic reason

for   failing     to    object      to      the        State's      recommendation      of

consecutive     sentences.          Rather,       he     candidly      stated   that    it

"slipped my mind to object."

      ¶10    One of the charges to which Tourville pled guilty was

felony theft as a party to the crime pursuant to Wis. Stat.

§§ 943.20(1)(a), (3)(d), and 939.05.4                   Several men, not including

Tourville, stole a gun safe containing firearms and other tools.

The men called Tourville, advised him that they had a safe and

needed both a place to take it and help to break it open.                              They

picked      Tourville    up    at     his       residence        and     then   went    to
Tourville's campsite at a resort.                      After they all participated

in opening the safe, Tourville advised the other men where to

dispose of it.          Ultimately, they disposed of the safe in a

swamp, along the side of the road.                        The men drove Tourville

home, dropped him off and later paid Tourville in cash for his

assistance.


      4
       All subsequent reference to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.


                                            5
                                               Nos.    2014AP1248-CR thru 2014AP1251-CR



      ¶11    Although Tourville did not participate in the planning

or   initial      execution     of   the   theft,         the   criminal    complaint

alleged Tourville "took and carried away" property as a party to

the crime.        The probable cause portion of the complaint sets

forth the factual basis for the charge.

      ¶12    At   the    plea   hearing,        the     circuit   court    questioned

Tourville regarding the factual basis for the charge of party to

the crime of felony theft.             Tourville stated that he did not

take part in the burglary, but gave the other men who did commit

the burglary a place to go to open the safe:

      The Court: On your plea you understand——by your plea
      you're acknowledging that on or about August 27, 2010
      in this county with others you took and carried away
      moveable property belonging to another, specifically
      firearms belonging to a Kevin Beyl without his consent
      and with intent to keep them?

      Mr. Miller:       Do you understand those elements?

      The Defendant:   Intent, I never did the burglary.                       I
      gave him a place to——

      Mr. Steffen:       Says party to the crime.

      The Court:        That's as a party to the crime.

      The Defendant:       Yeah.     Guilty.          I understand.

      ¶13 In an effort to clarify the record, the circuit court

again questioned Tourville regarding whether he understood the

factual basis for the charge of party to the crime of felony

theft.      He again responded that he gave the other men a place to

open the safe:

      The Court:  All right.  Finally in 13CF107——let's go
      back to that so we make certain that the facts meet

                                           6
                                Nos.   2014AP1248-CR thru 2014AP1251-CR


the elements of the crime. Mr. Miller, why don't you
articulate, you just both said it on the record and I
think Mr. Tourville did as well, but the facts that
meet the elements of the crime.

Mr. Steffen: Judge, let me just say quickly that Mr.
Tourville's statement was I didn't do the burglary and
he's charged with a theft as a party to the crime. As
part of the theft it would be our——the allegations
that   after   the  burglary  took  place   and  these
individuals were looking for a way to store or stash
the guns that were taken as a result of the burglary
. . . .     It was listed out in the probable cause
statement as well.

The Defendant:   I didn't give them nothing.

Mr. Miller:   You were around them, you watched them,
you were aiding and abetting them.

The Defendant: I gave them a place to do it. I
didn't give them no materials or I didn't hide
nothing.

The Court:   You gave them a place——

The Defendant:   To cut open, yeah.

The Court:   Material that was——

The Defendant:   I didn't give them no material.

The   Court:    No.  No.  No.  You  gave  them  the
surroundings, the place to hopefully gain access to
the safe.

The defendant:   Yeah.

The Court:   Right.

The defendant:   Yeah.

The Court:   And everybody agrees that that meets the
elements of the crime.

Mr. Steffen:   Yes.




                            7
                                                Nos.   2014AP1248-CR thru 2014AP1251-CR



       ¶14       The   circuit      court   accepted       Tourville's      plea      and

sentenced him to consecutive prison sentences totaling 26 years.5

Tourville filed a post-conviction motion raising the same issues

that are now before this court.                   The court denied Tourville's

motion and the court of appeals affirmed the circuit court's

judgment and order.

                                                II.

       ¶15       In this case we are asked to address issues involving

ineffective assistance of counsel, breach of a plea agreement,

and if there is a factual basis to support a guilty plea.

       ¶16       Whether    counsel's       actions       constitute     ineffective

assistance presents a mixed question of law and fact.                         State v.

Jenkins, 2014 WI 59, ¶38, 355 Wis. 2d 180, 848 N.W.2d 786.

Findings of fact will not be reversed unless they are clearly

erroneous.         Id.     The ultimate conclusion of whether counsel's

conduct breached the defendant's right to effective assistance

of counsel presents a question of law.                  Id.

       ¶17       The   issue   of   whether      the    State    breached     the    plea
agreement by arguing for consecutive sentences also presents a

question of law.           State v. Williams, 2002 WI 1, ¶4, 249 Wis. 2d

492,       637   N.W.2d    733.      This   court      reviews    questions     of    law

independently from the determinations rendered by the circuit

court and court of appeals.             Id.




       5
        Tourville's sentence included 14.5 years                         of    initial
confinement plus 11.5 years of extended supervision.


                                            8
                                                  Nos.    2014AP1248-CR thru 2014AP1251-CR



       ¶18   We review, under the clearly erroneous standard, the

issue of whether a factual basis exists for a charge to which

the   defendant      has    entered       a   plea.            "Unless    it    was    clearly

erroneous, we will uphold the circuit court's determination that

there existed a sufficient factual basis to accept the plea."

State v. Sutton, 2006 WI App 118, ¶8, 294 Wis. 2d 330, 718

N.W.2d 146.

                                                  III.

       ¶19   We address first Tourville's argument that his trial

counsel was ineffective because he failed to object when the

State recommended consecutive sentences.                             Under Strickland v.

Washington, Tourville must establish that his trial counsel's

performance was deficient and that he was prejudiced as a result

of that deficient performance.                    466 U.S. 668, 104 S. Ct. 2052

(1984).

       ¶20   Therefore,       the     threshold            inquiry       for      Tourville'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

Tourville's    counsel       to     object        did      not       constitute    deficient

performance.        See, e.g., State v. Naydihor, 2004 WI 43, ¶9, 270

Wis. 2d 585, 678 N.W.2d 220.

       ¶21   Tourville       has      a       constitutional              right       to    the

enforcement of a negotiated plea agreement.                            Williams, 249 Wis.

2d    492,   ¶37.      An    agreement         by        the    State    to    recommend     a

particular    sentence       may     induce         an     accused       to    give    up   the
constitutional right to a jury trial.                          Id.     "[O]nce an accused
                                              9
                                             Nos.   2014AP1248-CR thru 2014AP1251-CR



agrees to plead guilty in reliance upon a prosecutor's promise

to perform a future act, the accused's due process rights demand

fulfillment of the bargain."           Id.

       ¶22   As the court of appeals explained in State v. Bowers,

the issue of concurrent and consecutive sentences is "extremely

important" to a guilty plea.            2005 WI App 72, ¶16, 280 Wis. 2d

534, 696 N.W.2d 255 (quoting State v. Howard, 2001 WI App 137,

¶18, 246 Wis. 2d 475, 630 N.W.2d 244).                     "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 to access

rehabilitative services, and other factors."                   Howard, 246 Wis.

2d at ¶18.       "A recommendation of concurrent sentences can also

send a signal to the trial court that the agreement contemplates

a   lesser   sentence    than    one    where       consecutive    sentences    are

recommended."     Id.

       ¶23 The court of appeals observed that a defendant is not

entitled to relief when the breach is merely a technical one
rather than a substantial and material breach of the agreement.

Id., ¶15.     "A material and substantial breach is a violation of

the terms of the agreement that defeats the benefit for which

the accused bargained."         Williams, 249 Wis. 2d 492, ¶38.

       ¶24   When a plea agreement "undisputedly indicates that a

recommendation is to be for concurrent sentences, an undisputed

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."                     Howard, 246
                                        10
                                         Nos.   2014AP1248-CR thru 2014AP1251-CR



Wis. 2d 457, ¶19.      The remedy for a breach that is material and

substantial is either to vacate the plea agreement or resentence

the defendant under the terms of the original plea agreement.6

Williams, 249 Wis. 2d 492, ¶38; see also State v. Smith, 207

Wis. 2d 258, 268, 558 N.W.2d 379 (1997).

    ¶25   Interpretation      of    a    plea    agreement    is   rooted    in

contract law.     Bowers, 280 Wis. 2d 534, ¶16 (citing                State v.

Deilke, 2004 WI 104, ¶12, 274 Wis. 2d 595, 682 N.W.2d 945).

"Contract law demands that each party should receive the benefit

of its bargain; no party is obligated to provide more than is

specified in the agreement itself."              Id. (citations omitted).

"While the government must be held to the promises it made, it

will not be bound to those it did not make.              To do otherwise is

to strip the bargaining process itself of meaning and content."

Id. (quoting United States v. Fentress, 792 F.2d 461, 464-65

(4th Cir.1986)).

    ¶26   In this case, the plea agreement was silent as to

whether   Tourville's       sentences        would     be    concurrent      or
consecutive.     The plea agreement stated:           "The joint sentencing

recommendation    is   to   order   a    presentence     investigation;     the

state will cap its recommendation at the high end of what the

PSI orders."      Tourville's signed plea questionnaire/waiver of

rights form also stated:        "[n]o promises have been made to me

other than those contained in the plea agreement."

    6
       Tourville requests resentencing, rather than withdrawal of
the guilty plea.


                                        11
                                            Nos.     2014AP1248-CR thru 2014AP1251-CR



       ¶27   The PSI recommended a range of initial confinement and

extended supervision for each charge, but made no recommendation

for either concurrent or consecutive sentences.                  It recommended:

               Case No. 2011CF293:          16-18 months IC, 6 months
               ES

               Case No. 2011CF376:        4-6 years IC, 3-4 years ES

               Case No. 2012CF27:         16-18 months IC, 6 months ES

               Case No. 2013CF107:        1-2 years IC, 2 years ES
During sentencing, the prosecutor argued for the PSI's maximum
sentencing      recommendations.           He   also      recommended     that   the

circuit court impose consecutive sentences in all four cases,

despite the fact that the PSI was silent on this issue.

       ¶28   Tourville   argues      that       by    recommending      consecutive

sentences, the State breached the plea agreement.                      He contends

that because the PSI made no recommendation regarding whether

the sentences were to be served consecutively or concurrently,

the State's recommendation went beyond the "high end" of the

PSI.     If this court finds that the State breached the plea

agreement, Tourville asserts his trial counsel was ineffective

by   failing    to   object   to    the    prosecutor's       recommendation     for

consecutive sentences.

       ¶29   Both the circuit court and the court of appeals relied

on Bowers, 280 Wis. 3d 534, in denying Tourville's motion for

post-conviction relief.            In Bowers, the defendant argued that

because the plea agreement was silent on the question of whether

his sentence should run concurrently or consecutively with the
sentence he was already serving, the State breached the plea

                                          12
                                            Nos.    2014AP1248-CR thru 2014AP1251-CR



agreement by recommending a consecutive sentence.                       280 Wis. 2d

534, ¶14.      The Bowers court explained that "in the absence of

any indication that the parties expected the State to either

remain     silent     or   recommend        concurrent         sentences,    we     are

reluctant to engraft these conditions into a fully integrated

plea agreement."       Id., ¶16.

     ¶30     Tourville advances that Bowers should be distinguished

because:     (1) the State's sentence recommendation involved four

charges     here,    rather   than   only     one    in    Bowers;     and   (2)    the

language     of      Tourville's     plea     agreement          is    significantly

different     from    Bowers'   plea    agreement.         In    the    alternative,

Tourville argues that even if               Bowers       does apply, this court

should    overrule     Bowers   because      it    was    wrongly      decided.      We

disagree.

     ¶31     First, we do not agree that the facts of this case are

distinguishable from Bowers.           Whether a sentence recommendation

involves four charges or one charge in addition to a sentence

already being served, a recommendation of consecutive sentences
has the same effect on the defendant.                In both cases, the length

of   time     the     defendant      will     serve       is     increased     by    a

recommendation that the sentences be served consecutively.                         Both

defendants could have, but did not, negotiate for an agreement

that the State recommend the sentences be served concurrently.

     ¶32     We are also not persuaded by Tourville's argument that

the language of the plea agreement warrants a different outcome

in this case than in Bowers.           Here, the signed addendum stated:
"The joint sentencing recommendation is to order a presentence
                                       13
                                        Nos.   2014AP1248-CR thru 2014AP1251-CR



investigation; the state will cap its recommendation at the high

end of what the PSI orders."          In Bowers, the terms of the plea

agreement were:     "State to recommend 2 yrs. Initial confinement;

3 years extended supervision."         280 Wis. 2d 534, ¶2.

      ¶33    Regardless of any differences in the language of the

plea agreements, the tenets of contract interpretation set forth

in Bowers apply with equal force here.           The key issue is whether

the   plea   agreement    contains    language   regarding    concurrent    or

consecutive sentences.       Both the plea agreement and the PSI in

this case, as well as the plea agreement in Bowers, were silent

as to whether the sentences would be concurrent or consecutive.

If the recommendation for concurrent sentences was not bargained

for and is not contained within the terms of the plea agreement,

we will not engraft those terms into the agreement.

      ¶34    We also do not agree that Bowers was wrongly decided

and ought to be overruled.           The Bowers court analyzed and was

guided by case law from both Wisconsin and other jurisdictions

in reaching its determination.
      ¶35    Central to its analysis was the premise that in the

absence of a provision in a plea agreement regarding sentencing,

courts will not find a breach of the plea agreement when the

State recommends consecutive sentences.              See id., ¶19 (citing

Fentress, 792 F.2d at 464-65 (holding that the prosecution did

not   breach   a   plea   agreement    by   asking    the   court   to   order

restitution and consecutive sentences, where the agreement did

not mention either restitution or consecutive sentences and the
government otherwise kept its promises on the proposed length of
                                      14
                                                     Nos.     2014AP1248-CR thru 2014AP1251-CR



imprisonment); White v. United States, 308 F.3d 927, 929 (8th

Cir. 2002) (concluding that the government did not breach a plea

agreement         by    recommending         that       the    defendant's       new     sentence

should      run    consecutive          to    his       probation      revocation        sentence

because      the       plea     agreement          contained      no    provision        for    the

sentences to be served concurrently); Doles v. State, 55 P.3d

29,    34    (Wyo.       2002)      (determining          that    because       there     was    no

agreement that the sentence was to be concurrent, and the terms

of    the    agreement        did    not      establish        that    the    prosecutor        was

required to refrain from asking for a consecutive sentence, it

was permissible for the prosecutor to argue for a consecutive

sentence).

       ¶36    We agree with the Bowers court that the reasoning in

State v. Zanelli, 212 Wis. 2d 358, 367, 569 N.W.2d 301 (Ct. App.

1997), is applicable to a plea agreement that is silent as to

the issue of concurrent or consecutive sentences.                                  In Zanelli,

212 Wis. 2d at 367, the court of appeals explained that because

the    plea       agreement       was    silent         regarding      a     future      ch.    980
proceeding, the record did not reflect that the defendant had

bargained         for     the     State's          promise       to    forego      a     ch.    980

proceeding.             The   Zanelli        court      concluded      that      there    was    no

breach of the plea agreement.                        Id. at 368.           Similarly, when a

plea   agreement         is     silent       regarding        concurrent      or   consecutive

sentences,         the    defendant          has    not     bargained      for     the    State's

promise to refrain from recommending the sentences be served

consecutively.


                                                   15
                                          Nos.      2014AP1248-CR thru 2014AP1251-CR



       ¶37   In sum, we agree with both the circuit court and the

court of appeals that Bowers controls the outcome of this case.

We likewise conclude that because the State did not breach the

plea    agreement    when     it   recommended              that   Tourville      serve

consecutive     sentences,     Tourville           has      failed   to        establish

deficient     performance     by   his        trial      counsel.       Accordingly,

Tourville's trial counsel was not ineffective when he failed to

object to the State's sentencing recommendations.

                                           IV.

       ¶38   We address next Tourville's argument that there was an

insufficient factual basis for the circuit court to accept his

guilty plea as a party to the crime of felony theft.                            Although

Tourville     did   not   participate         in      the    planning     or    initial

execution of the theft, the complaint alleged Tourville "took

and carried away" property as a party to the crime.                            Tourville

argues that there is an insufficient factual basis for the plea

because he did not "take and carry away" property of another.

       ¶39   "[A] post-sentencing motion for withdrawal of a guilty
plea should only be granted when necessary to correct a manifest

injustice."     State v. Johnson, 200 Wis. 2d 704, 708, 548 N.W.2d

91 (Ct. App. 1996).         The circuit court's failure to establish a

sufficient     factual    basis    that       the      defendant     committed       the

offense to which he pleads is manifest injustice.                              State v.

Smith, 202 Wis. 2d 21, 25, 549 N.W.2d 232 (1996) (citing White

v. State, 85 Wis. 2d 485, 488, 271 N.W.2d 97 (1978).

       ¶40   Pursuant to Wis. Stat. § 971.08(1)(b), a circuit court
must "make such inquiry as satisfies it that the defendant in
                                         16
                                               Nos.     2014AP1248-CR thru 2014AP1251-CR



fact committed the crime charged" before accepting a defendant's

guilty plea.          A sufficient factual basis for the guilty plea

requires a showing that "the conduct which the defendant admits

constitutes the offense charged."                  State v. Lackershire, 2007 WI

74, ¶33, 301 Wis. 2d 418, 734 N.W.2d 23 (quoting White, 85 Wis.

2d at 488).

       ¶41    The    duties     established        in    Wis.       Stat.   § 971.08     are

"designed      to     ensure     that     a    defendant's           plea     is   knowing,

intelligent, and voluntary."                 Id., ¶34 (quoting State v. Brown,

2006   WI    100,     ¶23,     293   Wis.     2d   594,       716    N.W.2d     906).    "A

defendant's failure to realize that the conduct to which she

pleads      guilty    does     not    fall    within      the       offense    charged   is

incompatible with that plea being 'knowing' and 'intelligent.'"

Id., ¶35.

       ¶42    The elements of felony theft are stated in Wis. Stat.

§ 943.20:

       (1)    ACTS.   Whoever does any of the following may be
              penalized as provided in sub. (3):

              (a)    Intentionally takes and carries away, uses,
                     transfers, conceals, or retains possession
                     of moveable property of another without the
                     other's consent and with intent to deprive
                     the owner permanently of possession of such
                     property.
       ¶43    The State must plead one of the elements of theft in

the criminal complaint.              Jackson v. State, 92 Wis. 2d 1, 10, 284

N.W.2d 685 (Ct. App. 1979).                  However, the State may not charge

the    defendant        in     the      disjunctive           by     alleging      multiple
alternative         elements    of    theft.            Id.         Here,   the    criminal

                                              17
                                            Nos.   2014AP1248-CR thru 2014AP1251-CR



complaint alleged the element that Tourville "took and carried

away" the property of another.

      ¶44   Tourville      was    charged    as    a    party   to    the    crime   of

felony theft.       Wis. Stat. § 939.05 sets forth the elements of

the charge of party to a crime:

      (1)   Whoever is concerned in the commission of a crime
            is a principal and may be charged with and
            convicted of the commission of the crime although
            the person did not directly commit it and
            although the person who directly committed it has
            not been convicted or has been convicted of some
            other degree of the crime or of some other crime
            based on the same act.

      (2)   A person is concerned in the commission of the
            crime if the person:

            (a)    Directly commits the crime; or

            (b)    Intentionally aids and abets the commission
                   of it; or

            (c)    Is a party to a conspiracy with another to
                   commit it or advises, hires, counsels or
                   otherwise procures another to commit it.
      ¶45   In    this    case,    three    men,       not   including      Tourville,
stole a gun safe containing firearms and other tools.                         The men

called Tourville, advised him that they had a safe and needed

both a place to take it and help to break it open.                        They picked

Tourville   up    at     his   residence     and   then      went    to   Tourville's

campsite at a resort.             After they all participated in opening

the safe, Tourville advised the other men where to dispose of

it.   Ultimately, they disposed of the safe in a swamp, along the

side of the road.         The men drove Tourville home and dropped him



                                        18
                                               Nos.    2014AP1248-CR thru 2014AP1251-CR



off.         They   subsequently        paid     Tourville        in   cash    for   his

assistance.

       ¶46    At    the    plea     hearing,     the    circuit     court     questioned

Tourville as to whether he understood the elements of the crime

to which he was pleading guilty.                 Tourville insisted that he did

not commit the burglary, but only gave the thieves a place to

go.

       ¶47    In an effort to clarify the record, the circuit court

again questioned Tourville regarding whether he understood the

factual basis for the charge of party to the crime of felony

theft.       He again responded that he gave the other men a place to

open the safe:

       The Defendant: I gave them a place to do it. I
       didn't give them no materials or I didn't hide
       nothing.

       The Court:         You gave them a place——

       The Defendant:        To cut open, yeah.

       The Court:         Material that was——

       The Defendant:        I didn't give them no material.

       The   court:    No.  No.  No.  You  gave  them  the
       surroundings, the place to hopefully gain access to
       the safe.

       The defendant:        Yeah.

       The Court:         Right.

       The defendant:        Yeah.
       ¶48    Tourville argues that at the plea hearing, no facts

were   presented      that     he    took   or   carried     away      property.     His
contention is that the only facts alleged at the hearing were

                                            19
                                            Nos.   2014AP1248-CR thru 2014AP1251-CR



that he helped open the safe and provided a means to hide the

property.    Thus, Tourville contends that there was no factual

basis for the plea because felony theft involves the "taking and

carrying away" of property.          See Wis. Stat. § 943.20(1)(a).

      ¶49   In order to aid and abet a crime, the defendant need

be only a willing participant.               State v. Marshall, 92 Wis. 2d

101, 122, 284 N.W.2d 592 (1979).               "Such participation as would

constitute aiding and abetting does not even require that the

defendant be present during the [crime]."                    Id.     "One need not

perform an act which would constitute an essential element of

the crime in order to aid and abet that crime.                          It is only

necessary   that      he   undertake    some       conduct    (either    verbal      or

overt), which as a matter of objective fact aids another person

in the execution of a crime, and that he consciously desire or

intend that his conduct will in fact yield such assistance."

Id.

      ¶50   As the court of appeals explained, "asportation... is

a transaction which continues beyond the point in time when the
property    of   another     is   taken."          State     v.    Tourville,    Nos.

2014AP1248-CR,        2014AP1251-CR,         2014AP1249-CR,         2014AP1250-CR,

unpublished slip op., ¶8 (Wis. Ct. App. March 31, 2015) (citing

State v. Grady, 93 Wis.2d 1, 6, 286 N.W.2d 607 (Ct. App. 1979)).

“With   regard   to    the   crime     of    larceny    in    particular,       it   is

generally held that one may be guilty of larceny as a principal

where the crime was incomplete until he contributed his aid in

the asportation or taking possession of and removal of stolen


                                        20
                                           Nos.       2014AP1248-CR thru 2014AP1251-CR



property.” Grady, 93 Wis.2d at 6 (citing Hawpetoss v. State, 52

Wis.2d 71, 78, 187 N.W.2d 823 (1971)).

      ¶51    We recognize that Tourville was not charged directly

with committing felony theft.             Rather, he was charged as a party

to the crime of felony theft because he willingly aided the

other thieves in their continued efforts to carry away the safe

and the guns.       Tourville aided the other thieves when he took

them to his campsite, helped open the safe, and assisted in the

disposal of the safe along the side of the road in a swamp.

Indeed, he was even subsequently paid for his services.                            These

facts provide a sufficient basis for Tourville's guilty plea to

the charge of party to the crime of felony theft.

      ¶52    In sum, we conclude that Tourville's trial counsel was

not   ineffective.        Because   the   State       did   not    breach    the    plea

agreement by arguing for consecutive sentences, Tourville fails

to    establish     the     deficient      performance         necessary      for    an

ineffective assistance of counsel claim.

      ¶53    We    also       conclude         that      the      circuit      court's
determination was not clearly erroneous.                    There was a sufficient

factual basis to accept Tourville's guilty plea to the charge of

party to the crime of felony theft.                   He willingly aided others

who engaged in felony theft by taking them to his campsite,

helping     them   open    the   safe,    and    disposing        of   the   property.

Accordingly, we affirm the court of appeals.

      By the Court. – The decision of the court of appeals is

affirmed.


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    Nos.   2014AP1248-CR thru 2014AP1251-CR




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