                                                                2014 WI 61

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:              2012AP2557-CR
COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent-Petitioner,
                            v.
                       William F. Bokenyi,
                                 Defendant-Appellant.




                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                           Reported at 349 Wis. 2d 528, 835 N.W.2d 292
                                  (Ct. App. 2013 – Unpublished)

OPINION FILED:         July 11, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         March 18, 2014

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

JUSTICES:
   CONCURRED:
   DISSENTED:          ABRAHAMSON, C.J., BRADLEY, J., dissent. (Opinion
                       filed.)
                       PROSSER, J., ABRAHAMSON, C.J., BRADLEY, J.,
                       dissent. (Opinion filed.)
  NOT PARTICIPATING:


ATTORNEYS:
       For      the    plaintiff-respondent-petitioner,   the   cause   was
argued by Jeffrey J. Kassel, assistant attorney general, with
whom on the briefs was J.B. Van Hollen, attorney general.




       For the defendant-appellant, there was a brief by Suzanne
L. Hagopian, assistant state public defender, and oral argument
by Suzanne L. Hagopian.
                                                                           2014 WI 61
                                                                   NOTICE
                                                     This opinion is subject to further
                                                     editing and modification.   The final
                                                     version will appear in the bound
                                                     volume of the official reports.
No.        2012AP2557-CR
(L.C. No.     2010CF200)

STATE OF WISCONSIN                              :             IN SUPREME COURT

State of Wisconsin,

               Plaintiff-Respondent-Petitioner,                         FILED
       v.                                                          JUL 11, 2014
William F. Bokenyi,                                                   Diane M. Fremgen
                                                                   Clerk of Supreme Court
               Defendant-Appellant.




       REVIEW of a decision of the Court of Appeals.                  Reversed.



       ¶1      ANNETTE KINGSLAND ZIEGLER, J.            This is a review of an

unpublished decision of the court of appeals, State v. Bokenyi,

No. 2012AP2557-CR, unpublished slip op. (Wis. Ct. App. June 18,
2013), which reversed the judgment and order of the Polk County

Circuit      Court1   sentencing      William   F.    Bokenyi      ("Bokenyi")         to

prison and denying his motion for postconviction relief.

       ¶2      Bokenyi     contends     that,    even       though       the      State

recommended a term of imprisonment which was consistent with the

plea        agreement,     the     State    nonetheless           materially         and


       1
           The Honorable Molly E. GaleWyrick presided.
                                                                       No.        2012AP2557-CR



substantially breached that agreement by implying that the court

should     impose    a    longer      sentence.           Bokenyi    asserts        that     the

prosecutor's        comments         during       the     sentencing        hearing         were

inconsistent with the plea agreement.

      ¶3     Bokenyi      also       argues       that     he   received          ineffective

assistance from his trial counsel, because counsel failed to

object to the State's material and substantial breach of the

plea agreement, and that his counsel also failed to consult with

him as required under State v. Sprang, 2004 WI App 121, 274

Wis. 2d 784, 683 N.W.2d 522.

      ¶4     The State argues that the prosecutor's comments during

the     sentencing       hearing      did     not       constitute     a     material       and

substantial breach of the plea agreement.                           Alternatively, the

State      contends      that        Bokenyi's      defense         attorney        was     not

ineffective     for      failing       to   object        and   asks       this     court    to

overrule Sprang.

      ¶5     We conclude that the prosecutor's comments during the

sentencing hearing did not constitute a material and substantial
breach of the plea agreement.                 As a result, we need not address

Bokenyi's argument that his trial counsel was ineffective, nor

must we consider the State's request that Sprang be overruled.

We therefore reverse the decision of the court of appeals.

                                I.     FACTUAL BACKGROUND

      ¶6     On August 1, 2010, Bokenyi was involved in a domestic

dispute with his wife, Sherri Bokenyi ("Sherri").                            After Bokenyi

returned home from a poker game, Sherri informed Bokenyi that
she would be leaving the following day to spend a week caring
                                              2
                                                                        No.     2012AP2557-CR



for her elderly mother.              Upon hearing this news, Bokenyi became

upset and threatened to kill both Sherri and the couple's ten-

year-old son.

       ¶7     In response to Bokenyi's threat, Sherri locked both

herself and her son in a bedroom.                  Bokenyi, having armed himself

with two kitchen knives, followed Sherri to the bedroom door and

stated, "open the door, you fucking bitch."                              Sherri briefly

opened the door, and upon seeing the knives barricaded herself

in the room and called the police.

       ¶8     Officer Daniel Peters ("Officer Peters") responded to

Sherri's      call.       On    approaching        the    door    to     the    apartment,

Officer Peters heard Bokenyi shouting.                      Officer Peters knocked

on   the     door   and   stated,         "Police,   open       the    door."         Bokenyi

responded, "Fuck you, you're going to have to come in and kill

me."        Despite   his      comment,      Bokenyi      did    open    the        door,   and

Officer Peters observed him holding two knives.                          Officer Peters

stated,      "Police[,]        get   on    the    floor    and    drop        the    knives."

Bokenyi responded to Officer Peters' command by stating, "Fuck
you" and slamming the door.                 As Officer Peters called for back-

up, he heard Bokenyi shout, "Fuck you, I'm going to kill you

woman."

       ¶9     Officer Peters was then joined at the scene by several

other officers, including Deputy Nathan Ferris ("Deputy Ferris")

and Sergeant Michael Stoffel ("Sergeant Stoffel").                            The officers

together kicked in the door and entered Bokenyi's apartment.

Upon entering, the officers once again commanded Bokenyi to drop
the knives he was holding.                  When Bokenyi began walking toward
                                              3
                                                                                        No.     2012AP2557-CR



the officers, Deputy Ferris deployed his Taser.                                           The Taser had

no    apparent          effect       on    Bokenyi,         and    he          continued        to       advance

toward the officers.                       Sergeant Stoffel then fired at Bokenyi

with       his    service            pistol,       striking            Bokenyi.               Bokenyi        was

subsequently            transported           to    Regions            Hospital          in        St.     Paul,

Minnesota.

                                      II.     PROCEDURAL POSTURE

       ¶10       On     August        5,     2010,          the    State          filed        a     criminal

complaint alleging ten counts against Bokenyi.                                            The complaint

alleged          one        count     of     first-degree                  reckless           endangerment,

contrary to Wis. Stat. § 941.30(1) (2009-10),2 a Class F felony;

two    counts          of    felony        intimidation           of       a    victim,        contrary       to

§ 940.45(1), Class G felonies; one count of failing to comply

with       an    officer's           attempt       to       take       a       person     into       custody,

contrary to § 946.415(2), a Class I felony; three counts of

attempted battery of a peace officer, contrary to §§ 940.20(2)

and 939.32, attempts to commit Class H felonies; one count of

disorderly conduct as an act of domestic abuse, contrary to
§§ 947.01 and 968.075(1)(a), a class B misdemeanor; one count of

resisting         an        officer,        contrary         to    § 946.41(1),                a     Class     A

misdemeanor; and one count of negligent handling of a weapon,

contrary to § 941.20(1)(a), a Class A misdemeanor.

       ¶11       On         August     31,     2010,          Bokenyi            made         his        initial

appearance,            received        a    copy    of       the       criminal          complaint,          and


       2
       All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.

                                                        4
                                                                      No.     2012AP2557-CR



requested a timely preliminary hearing.                        The court set bail at

$25,000 cash.

       ¶12       On   September     9,    2010,        the    court    held       Bokenyi's

preliminary hearing.            The court heard testimony from Sherri and

Officer Peters regarding the incident.                       At the conclusion of the

testimony, the court found probable cause and bound Bokenyi over

for trial.            The State filed an information which alleged the

same       ten   counts   against       Bokenyi      as   charged     in    the    criminal

complaint.            Bokenyi     was    then       immediately     arraigned       on   the

information, and pled not guilty and not guilty by reason of

mental disease or defect to all the charges.3

       ¶13       On September 30, 2011, Bokenyi pled guilty to three of

the ten charges against him, pursuant to a plea agreement.                               As

part of the plea agreement, Bokenyi pled guilty to one count of

first-degree           reckless     endangerment,            one    count     of     felony

intimidation of a victim, and one count of failing to comply

with an officer's attempt to take a person into custody.                                 In

exchange for Bokenyi's pleas, the State agreed to dismiss and
read in the remaining counts for sentencing purposes and limit

its sentencing recommendation to "the high end range of the

PSI."       The court accepted Bokenyi's pleas, adjudged him guilty,

and ordered a presentence investigation report ("PSI").


       3
       Bokenyi was subsequently assessed by a mental health
professional, who concluded both that he was competent to stand
trial, and that he was able to "appreciate the wrongfulness of
his conduct and was able to conform his conduct to the
requirements of the law at the time of the commission of the
criminal offenses for which he is charged."

                                                5
                                                                 No.       2012AP2557-CR



    ¶14        On   December    5,    2011,    the   PSI   was   filed       with    the

circuit court.          On the reckless endangerment count, the PSI

recommended three to four years of initial confinement, to be

followed by three to four years of extended supervision.                         On the

failure to comply with a police officer and victim intimidation

counts, the PSI recommended that the court withhold sentence and

impose probation terms of three and five years, respectively.

The PSI recommended that the probation terms be concurrent with

one another, but consecutive to the sentence on the reckless

endangerment count.

    ¶15        On   January    23,    2012,    the   court    held     a   sentencing

hearing.        Prior   to     offering    argument    on     the    sentence,       the

prosecutor read aloud a letter to the court from Sherri, the

victim.    Sherri's letter stated, in part:

    Myself and our son . . . are afraid for the day
    [Bokenyi] will get let out because we are unsure of
    what he would be capable of doing. I prefer that we
    could live fearlessly while our son . . .  [who is]
    only 11 is growing and in school.
    ¶16        Following      the    reading    of   the     letter,       the    State

proceeded to make its sentencing argument.                   The State structured

its argument around the sentencing factors found in McCleary v.

State,    49    Wis. 2d 263,        182   N.W.2d 512    (1971),      and     State    v.

Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197.                        The State

began by reiterating the seriousness of Bokenyi's convictions:

         The three convictions that he is being sentenced
    on today [are] a first[-]degree reckless endangerment,
    a 12 and a half year felony, and intimidation of a
    victim, a 10 year felony[,] and failure to comply with
    a law enforcement officer, a 3 and a half year felony.

                                           6
                                                                  No.   2012AP2557-CR


       I think the felony classifications obviously indicate
       the extreme seriousness of these offenses that night.
       But to be honest, I don't think they really do them
       justice in terms of how serious this was.
       ¶17    The    State    noted    that,     given   Bokenyi's      history     of

"homicidal thoughts or ideations" toward his family, the fact

that   the    three    felonies       were   "very   serious     crimes"    did    not

reflect      the    seriousness     of   what     "might   have     happened      that

night . . . ."

       ¶18    The   State    then     addressed   Bokenyi's      character.        The

State noted Bokenyi's similar behavior during a prior incident,

wherein police were forced to shoot him when he refused to drop

a loaded shotgun.            The State also discussed Bokenyi's seeming

lack of remorse and the fact that he seemed "to have absolutely

no clue as to the impact that this offense has had on his wife

and child."

       ¶19    The   State    further     noted    that   there    was   a   need    to

protect the public from Bokenyi, stating:

       [T]here's the need to protect the public or the
       public's interest in rehabilitation of the defendant
       and I think this overwhelmingly comes down to the
       protection of the public interest. The protection of
       the public, being Sherry [sic] Bokenyi and their son.
       They have a right, as she says in her letter, to live
       fearlessly while their son is growing up and in
       school. She has a right to live not in fear that
       Mr. Bokenyi, when he gets out, is going to come
       looking for her and to finish what he's attempted at
       least one other time before.
       ¶20    Finally, the State noted some troubling behavior that

Bokenyi had exhibited since his arrest:

           What is again perhaps the most frightening for me
       is to read an incident report from the Polk County

                                             7
                                                                   No.       2012AP2557-CR


       Jail    on    February    11th    of    2011.        A
       jailer . . . indicates that on the above date [she]
       was doing med pass in the maximum part of the jail.
       Inmate Bokenyi came out for the evening meds and [she]
       asked him how he was doing.    He stated okay, but he
       was still here and that he could not wait for the time
       that he was out of here so he could quote "shoot up
       some cops" end quote.   [The jailer] asked him why he
       would do that.    He said they all deserved it.    And
       making conversations with him [she] stated that
       wouldn't he rather just get out and enjoy being out
       then risk coming back in. He stated that next time he
       would not be coming back, and he would also shoot
       anyone who got in his way while he was shooting at the
       cops.   There is an absolute necessity to protect the
       public from William Bokenyi.
       ¶21    The   State      concluded     its    argument     with    a   sentencing

recommendation that was, in fact, at the "high end range" of the

PSI.    Specifically, regarding the reckless endangerment count,

the State recommended a term of imprisonment of eight years,

consisting of four years of initial confinement to be followed

by    four    years      of   extended      supervision.        The     State    further

recommended that the court withhold sentence on the remaining

counts and impose probation.                 The State recommended five years

of probation on the victim intimidation count and three years on
the    failure      to    comply     with    an    officer     count.        The   State

recommended      that     both      probation     terms   be    served   concurrently

with    one    another        but   consecutive      to   the    sentence       for   the

reckless endangerment count.                All of the State's recommendations

fell within the ranges recommended in the PSI.

       ¶22    Counsel for Bokenyi began his sentencing argument by

stating "[w]ell, your Honor, it's hard to disagree with a lot of
what [the State] has said here.                   [The State] laid out exactly I


                                             8
                                                                     No.        2012AP2557-CR



think the facts that really establish and confirm . . . that Mr.

Bokenyi     is    someone    who    suffers       from    severe     mental       illness."

Bokenyi's        attorney     then       detailed        Bokenyi's        mental     health

treatment history.4          Bokenyi's counsel further argued that he had

low   risk       factors    for    recidivism       and     was    both    educated      and

employable.        In light of these considerations, Bokenyi's counsel

asked the court to impose a sentence of 18 months of initial

confinement,        followed       by     a       lengthy     period       of      extended

supervision.           Further,         counsel      recommended,          at     Bokenyi's

request, that Bokenyi be placed in a mental health facility as a

condition of his extended supervision in order to ensure that he

would not be a danger to himself or others on his release.

      ¶23    The court then sentenced Bokenyi to concurrent prison

terms which were longer than that recommended by the State.                               On

the reckless endangerment count, the court imposed a term of

imprisonment of twelve years and six months, with seven years

and six months of initial confinement to be followed by five

years of extended supervision.                On the intimidation of a victim
count, the court imposed a sentence of ten years, with five

years of initial confinement to be followed by five years of

extended supervision.             On the failure to comply with an officer

count, the court imposed a sentence of two years, with one year

of initial confinement to be followed by one year of extended

supervision.


      4
       Counsel did concede, however,                        that    Bokenyi        remained
criminally responsible for his actions.

                                              9
                                                                           No.     2012AP2557-CR



      ¶24     On September 10, 2012, Bokenyi filed a postconviction

motion,       pursuant        to     Wis.       Stat.       § 809.30(2)(h).              In     his

postconviction motion, Bokenyi argued that the State breached

the plea agreement in three ways during its sentencing argument.

First,    Bokenyi        contended        that        the    State    breached          the    plea

agreement       when     the        prosecutor          commented      that       the         felony

classifications          did       not   do      justice      to     the     seriousness         of

Bokenyi's      crimes.             Second,      Bokenyi       argued       that     the       State

breached      the      plea        agreement      when       the     prosecutor         repeated

statements from the victim's letter to the court during his

sentencing      argument.            Third,       Bokenyi         argued   that     the       State

breached the plea agreement when the prosecutor recounted the

jail incident report in a manner suggesting that the sentence

recommended as part of the plea agreement was insufficient.

      ¶25     Bokenyi conceded that he had forfeited his right to

directly challenge the State's alleged breaches, but argued that

his trial counsel had been ineffective for failing to object and

for     failing     to    confer         with     Bokenyi         regarding       the     alleged
breaches.          See    Sprang,        274     Wis. 2d 784,         ¶¶28-29.            Bokenyi

requested that he be resentenced before a new judge and that the

court order a Machner hearing on his ineffectiveness claim.                                      See

State    v.    Machner,        92    Wis. 2d 797,           285    N.W.2d 905       (Ct.       App.

1979).

      ¶26     On    November        5,   2012,        the    court    held    a    hearing       on

Bokenyi's      postconviction             motion.            Bokenyi's       trial        counsel

testified at the hearing that the reason he had not objected to
the prosecutor's comments was because he did not believe that
                                                 10
                                                       No.    2012AP2557-CR



the State had breached the plea agreement during its sentencing

argument.     Counsel testified that his strategy at the sentencing

hearing was to use the "bad facts" of the case, which counsel

testified were "well-known to everybody," to try and argue in

favor of mental health treatment and against a lengthy prison

sentence.      Counsel   further   testified   that   he   had   read   the

hearing transcript and while "prosecutors say things every day

in sentencing arguments that I don't agree with, . . . I didn't

see it as being any kind of secret code to anyone that the court

shouldn't follow the plea agreement."

       ¶27   After counsel's testimony, the court heard argument on

Bokenyi's postconviction motion.        Bokenyi argued that, although

the State "technically" complied with the plea agreement and

much of what the prosecutor discussed was "fair game," the three

instances referenced in his brief were material and substantial

breaches of the plea agreement and a new sentencing hearing was

required.

       ¶28   The State argued that none of the statements discussed
by Bokenyi constituted a material and substantial breach of the

plea agreement.      The State argued that the seriousness of a

given offense is a factor to be considered on sentencing under

McCleary and Gallion, and that the prosecutor's discussion of

the felony classifications for the offenses did not relate to

the maximum penalties that could be imposed.           See McCleary, 49

Wis. 2d 263; Gallion, 270 Wis. 2d 535. The State further argued

that   the   prosecutor's   reference   to   the   victim's   letter    was
entirely appropriate and, contrary to Bokenyi's assertion, did
                                   11
                                                                     No.      2012AP2557-CR



not "covertly" communicate a higher sentencing recommendation.

Finally,    the     State   argued     that      the    prosecutor      had     read     the

jailer's     report      verbatim     and     used      Bokenyi's       own     words    to

illustrate     his       conduct,     neither        of    which       undermined        the

sentencing recommendation.

      ¶29    The     circuit       court     denied       Bokenyi's        request       for

postconviction relief.             The court first noted that, had counsel

contemporaneously objected, it likely would have overruled the

objection.         The   court     then     concluded,        relying      on   State     v.

Liukonen, 2004 WI App 157, 276 Wis. 2d 64, 686 N.W.2d 689, and

State v. Ferguson, 166 Wis. 2d 317, 479 N.W.2d 241 (Ct. App.

1991), that the prosecutor's comments at the sentencing hearing

did not constitute a material and substantial breach of the plea

agreement.

      ¶30    With respect to the first alleged breach, the court

agreed with the State and concluded that the prosecutor was "not

talking about the 26 years not doing justice to the crimes. He's

talking about . . . the A through I classification system not
doing justice to how serious the conduct was in this particular

case."

      ¶31    With respect to the second alleged breach, the court

conceded     that    the    better     practice        would    have    been     to     have

someone     other    than    the    prosecutor         read    the   victim's      letter

aloud, but the court nonetheless concluded that the prosecutor

was   entitled      to     reference       the   victim's       letter        during    his

argument.     The court stated "Wisconsin has a tradition . . . of
putting great emphasis on victim's rights" and that "there's
                                            12
                                                                               No.        2012AP2557-CR



penalties if we violate victim's rights."                               The court concluded

that restating the victim's wishes "without augmenting them in

some    fashion,         without         increasing       them    in     some       way"     did    not

constitute      a    material             and     substantial          breach        of     the    plea

agreement.

       ¶32    Finally, with respect to the third alleged breach, the

court    concluded         that         the     prosecutor       was    permitted           to    bring

relevant negative information to the court's attention.                                             The

court    noted      that       the        prosecutor          brought       relevant         positive

information         to     the          court's     attention          as     well,         including

Bokenyi's education, work history, and lack of drug or alcohol

dependency.              As        a     result,        the     court       denied          Bokenyi's

postconviction motion.

       ¶33    On November 15, 2012, Bokenyi appealed.                                     Before the

court    of   appeals,             Bokenyi       again    argued       that     the        State    had

materially and substantially breached the plea agreement, and

that    his   trial       counsel          had    been    ineffective          for        failing    to

object to the breach or consult with Bokenyi.
       ¶34    The    State             raised    substantially          the     same        arguments

before the court of appeals as it had before the circuit court.

       ¶35    On June 18, 2013, the court of appeals reversed the

circuit court and remanded the case for resentencing before a

new judge.          Bokenyi, No. 2012AP2557-CR, unpublished slip op.,

¶1.     The    court          of       appeals    concluded       that        the     prosecutor's

sentencing argument materially and substantially breached the

plea agreement, and that Bokenyi's trial counsel was ineffective
for failing to object.                   Id.
                                                   13
                                                                No.     2012AP2557-CR



     ¶36   On July 9, 2013, the State petitioned this court for

review, which we granted on December 6, 2013.

                            III. STANDARD OF REVIEW

     ¶37   "The terms of [a] plea agreement and the historical

facts of the State's conduct that allegedly constitute a breach

of a plea agreement are questions of fact."                   State v. Williams,

2002 WI 1, ¶5, 249 Wis. 2d 492, 637 N.W.2d 733 (citing State v.

Wills,   193   Wis. 2d 273,      277,    533    N.W.2d 165       (1995)).        "An

appellate court reviews the circuit court's findings of fact

under the clearly erroneous standard of review." Id.; see also

Wis. Stat. § 805.17(2).

     ¶38   Whether the State's conduct "constitutes a material

and substantial breach of a plea agreement is a question of law

that we review de novo."         State v. Deilke, 2004 WI 104, ¶10, 274

Wis. 2d 595, 682 N.W.2d 945 (citing Williams, 249 Wis. 2d 492,

¶5; Wills, 193 Wis. 2d at 277).

                                 IV.     ANALYSIS

     ¶39   "Plea agreements are 'an essential component of the
administration    of   justice.'"            Deilke,   274     Wis. 2d 595,      ¶11

(quoting Santobello v. New York, 404 U.S. 257, 260 (1971)).

"Once a plea agreement has been reached and a plea made, a

defendant's    due     process       rights     require        the    bargain     be

fulfilled."    Id. (citing Williams, 249 Wis. 2d 492, ¶37; State

v.   Matson,   2003    WI     App    253,      ¶16,    268     Wis. 2d 725,      674

N.W.2d 51).      "It    is    well      established,         however,    that    the

sentencing court is not in any way bound by or controlled by a
plea agreement between the defendant and the state."                       State v.
                                        14
                                                                            No.     2012AP2557-CR



McQuay, 154 Wis. 2d 116, 128, 452 N.W.2d 377 (1990) (citation

omitted).

       ¶40    Further,      "[n]ot      all   conduct          that       deviates      from   the

precise terms of a plea agreement constitutes a breach that

warrants a remedy."           Deilke, 274 Wis. 2d 595, ¶13 (citing State

v. Bangert, 131 Wis. 2d 246, 290, 389 N.W.2d 12 (1986)).                                       "In

order for a court to vacate a plea agreement, the breach [of the

plea     agreement]       must     be    material            and     substantial."             Id.

(citations omitted).             "A material and substantial breach of a

plea agreement is one that violates the terms of the agreement

and defeats a benefit for the non-breaching party."                                     Id., ¶14

(citations omitted).

       ¶41    It    is   axiomatic      that       "[a]       prosecutor      who       does   not

present the negotiated sentencing recommendation to the circuit

court breaches the plea agreement."                          Williams, 249 Wis. 2d 492,

¶38 (citation omitted); see also Santobello, 404 U.S. at 262.

In   the     case   at    issue,     however,           it    is    undisputed          that   the

prosecutor's ultimate sentencing recommendation of four years of
initial      confinement         followed          by     four       years        of    extended

supervision and a five-year probation term was consistent with

the plea agreement, because it was within the "high end range"

of the sentence suggested in the PSI.

       ¶42    Bokenyi       nonetheless            argues          that     the        prosecutor

materially      and      substantially        breached         the     plea       agreement     by

making       comments      that      undermined              his      recommendation           and

implicitly encouraged the judge to impose a sentence that was


                                              15
                                                                      No.    2012AP2557-CR



longer than agreed upon, that is, longer than the "high end

range" of the PSI.

    ¶43     It is certainly true that "'[e]nd runs' around a plea

agreement      are    prohibited."          Williams,        249     Wis. 2d 492,        ¶42

(citing State v. Hanson, 2000 WI App 10, ¶24, 232 Wis. 2d 291,

606 N.W.2d 278).            "The State may not accomplish by indirect

means   what    it    promised     not    to    do    directly,      and     it    may   not

covertly convey to the trial court that a more severe sentence

is warranted than that recommended."                    Id. (quoting Hanson, 232

Wis. 2d 291, ¶24; citing Ferguson, 166 Wis. 2d at 322).

    ¶44     It bears noting, however, that a prosecutor may not

"agree to keep relevant information from the sentencing judge."

Williams,      249    Wis. 2d 492,       ¶43    (citing      State    v.     Neuser,     191

Wis. 2d 131,         139,   528    N.W.2d 49         (Ct.     App.     1995)).           "At

sentencing,      pertinent        factors       relating      to     the     defendant's

character and behavioral pattern cannot be immunized by a plea

agreement between the defendant and the State."                              Id. (citing

Elias v. State, 93 Wis. 2d 278, 285, 286 N.W.2d 559 (1980)).
    ¶45     Thus, while a prosecutor at a sentencing hearing must

walk "a fine line," id., ¶44 (citing Hanson, 232 Wis. 2d 291,

¶27), "[a] prosecutor may convey information to the sentencing

court that is both favorable and unfavorable to an accused, so

long as the State abides by the plea agreement."                       Id.

    ¶46     Bokenyi contends that at the sentencing hearing the

State   stepped        over     that     "fine       line"    and     materially         and

substantially        breached     the    plea    agreement     in     three       respects.
First, Bokenyi argues that the prosecutor's comment that the
                                           16
                                                                      No.     2012AP2557-CR



felony classifications did not do justice to the seriousness of

Bokenyi's offenses was a breach of the plea agreement.                            Second,

Bokenyi      contends       that     the       prosecutor's       discussion      of   the

victim's letter was a breach of the plea agreement.                              Finally,

Bokenyi      asserts      that    the   prosecutor's        comments       regarding   the

jail incident report constituted a breach of the plea agreement.

       ¶47    In     the    following          analysis      we    address      Bokenyi's

arguments.         We reject each of these arguments and conclude that

the prosecutor did not materially and substantially breach the

plea agreement.

                                 A. Felony Classifications

       ¶48    Bokenyi      argues       that    the      prosecutor    materially      and

substantially breached the plea agreement when, after reciting

the maximum penalties applicable to Bokenyi's convictions, he

stated, "I think the felony classifications obviously indicate

the extreme seriousness of these offenses that night.                          But to be

honest, I don't think they really do them justice in terms of

how serious this was."
       ¶49    As an initial matter, we note that a discussion of the

seriousness of the defendant's conduct, even in "harsh terms,"

is entirely appropriate.                Liukonen, 276 Wis. 2d 64, ¶10 (citing

Ferguson, 166 Wis. 2d at 319-20, 325).                      In fact, we have stated

that probation is presumed to be the appropriate disposition of

a given case unless the circuit court makes findings indicating

that   "confinement         is     necessary        to   protect     the    public,    the

offender      needs        correctional         treatment         available     only    in
confinement,         or     [probation]         would      unduly     depreciate       the
                                               17
                                                                       No.     2012AP2557-CR



seriousness      of    the    offense."          Gallion,      270    Wis. 2d 535,         ¶44

(citing      Bastian     v.    State,      54    Wis. 2d 240,         248-49       n.1,    194

N.W.2d 687 (1972)).            Thus, because the State needed to overcome

the presumption of probation in arguing for a sentence at the

"high end range" of the PSI, the State was compelled to address

why a prison term was warranted.

       ¶50     The prosecutor in the case at issue explicitly tied

his sentencing argument to the sentencing factors discussed in

Gallion.       He also explicitly stated that his discussion of the

maximum      penalties        and   felony       classifications          went       to    the

"seriousness" or "gravity" of Bokenyi's offenses.

       ¶51     In attempting to overcome the presumption in favor of

probation, the maximum penalties associated with a particular

crime are clearly relevant information.                      The State is therefore

free   to    discuss     them,      so   long     as    that    discussion         does    not

undermine the plea agreement.                   See Ferguson, 166 Wis. 2d at 324

(citation omitted) (noting that "[a] plea agreement which does

not    allow    the    sentencing        court     to   be     apprised       of    relevant
information is void as against public policy").

       ¶52     Bokenyi    concedes        that    the    prosecutor          was    free    to

recite the maximum penalties and further concedes that he was

permitted to discuss the seriousness of Bokenyi's offenses.                                 In

coupling       his    recitation     of    the     maximum       penalties         with    his

comment regarding the classifications, however, Bokenyi contends

that   the     prosecutor      covertly      suggested         that   the     agreed      upon

sentence was insufficient given Bokenyi's conduct.                                 In making
this    argument,        Bokenyi         asserts        that     Wisconsin's          felony
                                            18
                                                                                No.     2012AP2557-CR



classification            system         exists    only       to     specify          the        maximum

penalties         for    a     given      offense,      and     so    a    reference             to    the

classification of a crime is essentially the same as a reference

to the maximum penalty applicable to that crime.                                We disagree.

       ¶53       Bokenyi       is    correct      that       the     classification               system

exists to ensure the imposition of more serious penalties for

more serious crimes.                See Wis. Stat. § 939.50(2).                       The structure

of the classification system, however, reflects the gravity of

the crimes.           As the Legislative Council notes following § 939.50

state: "[T]he Act classifies the criminal offenses based on the

degree       of       actual        or    potential          harm     involved              in    their

commission."                 Legislative       Council        Note,       1977,        Wis.       Stat.

§ 939.50.         The fact that more serious crimes generally warrant

more       serious       penalties        is   without        question.               It     is       also

generally understood that within that structure there is room

for    a    court       to    exercise      its    discretion.             See        Gallion,         270

Wis. 2d 535, ¶17.                  In fact, it is incumbent upon a court to

create       a    record       "detailing         the    reasons          for     selecting            the
particular sentence imposed" and stating why it is appropriate.

Id.,   ¶24.           Finally,      the    State       did    not    recommend          a    sentence

anywhere close to the maximum allowable penalties.

       ¶54       In light of these considerations, we conclude that the

prosecutor's comment regarding the felony classification system

referred         to     the    seriousness         of    Bokenyi's         conduct           in       this

particular         case       as    it    related       to    the     crimes          charged          and

overcoming the presumption of probation.                              Thus, the prosecutor
did    not       imply       that   the    court       should       disregard          the       State's
                                                  19
                                                                No.    2012AP2557-CR



sentencing recommendation and instead impose a sentence at or

near the maximum allowable for Bokenyi's offense.

       ¶55     In sum, the prosecutor discussed the seriousness of

Bokenyi's offenses as a proper factor for the court to consider

at sentencing.       See Gallion, 270 Wis. 2d 535, ¶44.                 The felony

classification discussion was one way to communicate the State's

position       regarding    the    seriousness     of   the   offenses.          This

prosecutor did not breach the plea agreement, either explicitly

or    implicitly,    by    emphasizing     the    seriousness     of    the   crimes

committed by the defendant.             See Liukonen, 276 Wis. 2d 64, ¶10.

The plea       agreement    called for the        prosecutor    to     recommend    a

sentence consistent with the "high end range" of the PSI.                         The

high end called for a significant prison sentence.                     Thus, under

the plea agreement, the prosecutor was obliged to argue that

this was a serious offense that warranted prison time.

       ¶56     Our conclusion is in accord with the circuit court's

finding at the postconviction hearing that "[the prosecutor is]

not talking about the 26 years not doing justice to the crimes.
He's talking about . . . the A through I classification system

not    doing    justice     to    how   serious   the   conduct       was   in   this

particular case."5         We agree with the circuit court.6




       5
       Judge GaleWyrick presided over both the sentencing and
postconviction hearings, and so was personally present for the
prosecutor's sentencing argument.

                                          20
                                                                           No.   2012AP2557-CR



       ¶57        Thus, the prosecutor's emphasis on the seriousness of

Bokenyi's          crimes,    considered          in    the    full    context         of   his

sentencing             argument,    did     not        constitute      a     material       and

substantial breach of the plea agreement.

                                     B. Victim's Letter

       ¶58        Bokenyi next argues that the prosecutor materially and

substantially breached the plea agreement when he referenced the

victim's letter in his sentencing argument.                            Bokenyi concedes

that       the    initial    reading      of    the     victim's      letter     was    not   a

breach,          but    instead    argues      that     the   prosecutor's       subsequent

reference to the letter during his argument was a material and

substantial breach of the plea agreement.                           Bokenyi's argument,

however, fails to acknowledge how very important victims' rights

are within our criminal justice system.                        A crime victim has the

right to express his or her views at sentencing and that need

not be kept in a vacuum.               Wis. Stat. § 972.14(3)(a).                 Commentary

on and consideration of the victim's recommendations by counsel

and the court may be warranted.                         The victim holds a special
place within the public, and the need to protect the public is

certainly a factor for the circuit court's consideration. See

Gallion, 270 Wis. 2d 535, ¶44.




       6
       In reviewing a circuit court's decision on ineffective
assistance of counsel "this court will not exclude the circuit
court's articulated assessments of credibility and demeanor,
unless they are clearly erroneous."    State v. Carter, 2010 WI
40, ¶19, 324 Wis. 2d 640, 782 N.W.2d 695 (citing State v. Thiel,
2003 WI 111, ¶23, 264 Wis. 2d 571, 665 N.W.2d 305).

                                                21
                                                                       No.    2012AP2557-CR



      ¶59     The Wisconsin Constitution declares that "[t]his state

shall treat crime victims, as defined by law, with fairness,

dignity and respect for their privacy."                         Wis. Const. art. I,

§ 9m.      Among the crime victim rights secured by the Wisconsin

Constitution is "the opportunity to make a statement to the

court at disposition" of a criminal case.                     Id.

      ¶60     The legislature has similarly declared an intent "to

ensure that all victims . . . of crime are treated with dignity,

respect, courtesy and sensitivity," and that their rights "are

honored and protected by law enforcement agencies, prosecutors

and judges in a manner no less vigorous than the protections

afforded criminal defendants."                Wis. Stat. § 950.01.

      ¶61     In accordance with this stated intent, crime victims

are entitled by statute to "confer with the district attorney

concerning the prosecution of the case and the possible outcomes

of   the    prosecution,     including         potential        plea    agreements      and

sentencing recommendations."             Wis. Stat. § 971.095(2).                Further,

"[a]fter     a   conviction,      if    the        district     attorney      knows   of   a
victim of a crime to be considered at sentencing, the district

attorney shall make a reasonable attempt to contact that person

to   inform      him   or   her   of    the        right   to    make    or    provide     a

statement" to the court.               Wis. Stat. § 972.14(3)(b).                In fact,

if a prosecutor fails to comply with the Crime Victim Rights

Act, he or she can be fined.             Wis. Stat. § 950.11.

      ¶62     Before pronouncing sentence, the circuit court is also

required by statute to "inquire of the district attorney whether
he   or    she   has   complied"       with    the     requirements      of    the    crime
                                              22
                                                                        No.        2012AP2557-CR



victim rights laws.              Wis. Stat. § 972.14(2m).                     The court is

further     required      to   "determine        whether     a       victim    of     a     crime

considered     at    sentencing        wants     to   make       a    statement        to    the

court."     Wis. Stat. § 972.14(3)(a).                "If a victim wants to make

a   statement,      the    court       shall    allow   the          victim    to      make    a

statement in court or to submit a written statement to be read

in court."       Id.      The statute does not specify any particular

party to read the statement.                   In fact, the sole limitation on

the victim's statement is that it be "relevant to the sentence."

Id.      Again, if a judge does not ensure compliance with the

victims' rights statutes, the judge can be fined.                                  Wis. Stat.

§ 950.11.

      ¶63    Thus, victims' rights play an important role within

our criminal justice system.              In the case at issue, not only was

it proper for the victim's letter to be read, the law required

that it be read.           Wis. Stat. § 972.14(3)(a); State v. Harvey,

2006 WI App 26, ¶42, 289 Wis. 2d 222, 710 N.W.2d 482.                                The court

was   required      to    consider       "'the    gravity        and     nature        of     the
offense, including the effect on the victim'" in crafting an

appropriate sentence.            State v. Naydihor, 2004 WI 43, ¶78, 270

Wis. 2d 585,     678      N.W.2d 220      (citations       omitted)           (emphasis        in

original).          The    law     does    not     preclude           acknowledgment          or

commentary     regarding         the    victim's      wishes,         and     it     does     not

prohibit the prosecutor from reading the victim's letter to the

court.

      ¶64    Because victim rights compliance is essential to the
sentencing hearing and the factors that a court must weigh in
                                           23
                                                                    No.    2012AP2557-CR



exercising     its     discretion,      consideration        of     and        commentary

regarding the victim's wishes may be relevant and appropriate at

the sentencing.         See Wis. Stat. § 972.14(3)(a); Williams, 249

Wis. 2d 492,     ¶¶42-43     (citations         omitted)          (stating       that   a

prosecutor may not "agree to keep relevant information from the

sentencing    judge").      A       prosecutor's     reference       to    a    victim's

letter will not automatically operate as a breach of the plea

agreement.     In fact, a victim's wishes may often come to bear in

considering the need to protect the public.

     ¶65     Bokenyi    argues,      however,       that    the    prosecutor       went

beyond reciting the victim's wishes and instead adopted them as

his own.     Bokenyi asserts that the victim's request that she and

her son be allowed to "live fearlessly" while her 11-year-old

son "is growing and in school" was, in effect, a request for a

seven-year    initial     confinement         period.       Although       the    victim

never requested any specific sentence, Bokenyi reasons that "in

school" meant until the son turned 18 years old.                      Bokenyi argues

that when he repeated the victim's request during his sentencing
argument, the prosecutor implied that the judge should sentence

Bokenyi to an initial confinement period longer than the four

years recommended in the PSI.            We reject this argument.

     ¶66     As discussed, the plea agreement called for the State

to make a recommendation "at the high end range of the PSI."

The PSI recommended a sentence of three to four years of initial

confinement,     followed    by       three    to    four    years        of    extended

supervision and a three- to five-year probation term.                          The State
in   fact     recommended       a     sentence       of     four     years       initial
                                         24
                                                               No.     2012AP2557-CR



confinement, followed by four years of extended supervision and

probation on the other counts.         Thus, the State's recommendation

was consistent with the "high end range" of the PSI and was

therefore consistent with the plea agreement.7

     ¶67    As the circuit court noted during the postconviction

hearing, the prosecutor was entitled to reference the victim's

letter to the court.     The court further concluded that restating

the victim's wishes "without augmenting them in some fashion,

without    increasing   them    in   some    way"      did   not     constitute   a

material   and    substantial   breach      of   the    plea   agreement.         We

agree.

     ¶68    The prosecutor's statement does not translate into a

request for a longer sentence.             The prosecutor used the letter

as a way to illustrate "the need to protect the public" from

Bokenyi, a proper factor for consideration at sentencing.                       See

Gallion,    270    Wis. 2d 535,      ¶44.        Further,      the     prosecutor

recommended a term of imprisonment of eight years, that being

four years of initial confinement to be followed by four years
of extended supervision.        The recommendation was consistent with

the "high end range" of the PSI, consistent with the terms of



     7
       Notably, the State's recommended sentence was also longer
than would have been required to keep Bokenyi under supervision
through his son's 18th birthday.    While we recognize that the
sentence would not necessarily have kept Bokenyi incarcerated
for the duration of that period, extended supervision serves as
a real and substantial deterrent, given that any misconduct by
Bokenyi during his extended supervision period could result in
his return to prison. Wis. Stat. § 973.01(8).

                                      25
                                                                          No.    2012AP2557-CR



the plea agreement, and seemingly consistent with the victim's

wishes.

       ¶69        It was incumbent on both the court and the prosecutor

to ensure compliance with the victims' rights statutes.                                   The

victim did not make a specific sentencing recommendation, other

than to reasonably request that she and her son be allowed to

feel       safe    while     her    son   was   in    school.        As    a    result,   the

victim's wishes were not necessarily at odds with the State's

sentencing recommendation.                 In fact, the State's recommendation

of imprisonment for eight years could actually result in Bokenyi

being in prison or under supervision for significantly longer

than eight years.8

       ¶70        Thus,     considering    the       totality   of    the       prosecutor's

argument,         we   do    not    conclude     that    the    State      materially     and

substantially breached the plea agreement when it referenced the

victim's letter.9

                                   C. Post-Custody Behavior



       8
       Defendants are advised at the time of sentencing that the
amount of time he or she must actually serve in prison may be
extended as provided in Wis. Stat. § 302.113(3), and that
because of such extensions the person "could serve the entire
bifurcated sentence in prison."      Wis. Stat. § 973.01(8)(a)4.
Wisconsin Stat. § 302.113(3) provides that, if an inmate
"violates any regulation of the prison or refuses or neglects to
perform required or assigned duties," the Department of
Corrections may extend the inmate's term of confinement.
       9
       Further, even if we accepted Bokenyi's reading of the
prosecutor's reference to the letter, a defendant is entitled to
resentencing only if a breach is not "merely a technical
breach." Williams, 249 Wis. 2d 492, ¶38.

                                                26
                                                                             No.     2012AP2557-CR



          ¶71    Bokenyi also argues that the prosecutor materially and

substantially breached the plea agreement when he referred to a

jail incident report as "most frightening."                             Bokenyi claims that

the       prosecutor's          editorial      comment           undercut     the     negotiated

recommendation.               Bokenyi's argument fails because the incident

report is         relevant       information for a court to consider when

addressing the need to protect the public.                              The comment was not

an    effort       to    urge     the     court      to    impose       a   sentence       on    the

defendant beyond that being recommended by the State.

          ¶72    "At    sentencing,        pertinent         factors        relating       to    the

defendant's character and behavioral pattern cannot be immunized

by    a    plea    agreement           between    the      defendant        and     the    State."

Williams,         249    Wis. 2d 492,          ¶43    (citing       Elias,     93     Wis. 2d at

285).       "[P]lea agreements where the prosecution agrees not to

reveal information that is relevant to sentencing are against

public policy and will be rejected by the courts."                                        Id., ¶63

(citing         Grant    v.    State,     73     Wis. 2d 441,        448,     243     N.W.2d 186

(1976)).
          ¶73    Further,        "nothing         prevents          a       prosecutor          from

characterizing a defendant's conduct in harsh terms, even when

such       characterizations,             viewed      in     isolation,            might    appear

inconsistent            with     the     agreed-on         sentencing        recommendation."

Liukonen,         276    Wis. 2d 64,        ¶10      (emphasis       in     original).          The

prosecutor         must        simply    refrain          from     making     "comments         that

suggest the prosecutor now believes the disposition he or she is

recommending pursuant to the agreement is insufficient."                                        Id.,
¶11.
                                                 27
                                                                No.   2012AP2557-CR



       ¶74    For example, in Ferguson the defendant pled guilty to

having       sexual    contact     with    a     minor,   pursuant    to   a     plea

agreement.          166 Wis. 2d at 319.           The plea agreement provided

that the State would recommend imposed and stayed sentences on

the two charges, 20 years probation, and two consecutive six-

month county jail terms as a condition of probation.                       Id.     At

the sentencing hearing, the prosecutor described the offenses as

"the most perverted of all perverted sex acts" and stated, "this

is the sickest case that I have seen or read about.                     If I refer

to this defendant as 'sleaze,' I think that would be giving him

a compliment."         Id. at 319-20.       Because the prosecutor also made

the agreed upon sentencing recommendation, however, the court of

appeals concluded that the prosecutor's remarks did not amount

to a breach of the plea agreement in spite of the greater than

normal "vitriol" displayed by the prosecutor.                Id. at 325.

       ¶75    Similarly, in Naydihor, the defendant pled guilty to

injury by intoxicated use of a motor vehicle, pursuant to a plea

agreement.          270 Wis. 2d 585, ¶3.          The plea agreement provided
that the State would recommend probation but "retain[] a free

hand   on     the     conditions   of     that    probation."     Id.      At     the

sentencing hearing, the prosecutor repeatedly referred to the

defendant as a "danger" and a "threat to the community."                         Id.,

¶13.     The prosecutor also discussed the devastating impact that

the crime had had on the victim, who had been confined to a

wheelchair by the incident.                Id.      This court concluded that

because "[t]he information the prosecutor discussed constituted
no     more     than      pertinent       behavioral      characteristics         and
                                          28
                                                                           No.     2012AP2557-CR



aggravating factors relevant to sentencing," the prosecutor's

comments were not a material and substantial breach of the plea

agreement.        Id., ¶27.

       ¶76   By       contrast,           in       Liukonen,     the    court     of     appeals

concluded      that          the     prosecutor's           sentencing          argument        did

constitute        a    material           and       substantial        breach     of     a     plea

agreement.         In Liukonen, the defendant was charged with four

robberies using a handgun.                         276 Wis. 2d 64, ¶2.           The defendant

pled    guilty,       pursuant           to    a    plea   agreement.       Id.,        ¶3.      In

exchange for the defendant's pleas, the prosecutor agreed to

limit his sentence recommendation to a total of 17 years of

incarceration.              Id.     At the sentencing hearing, however, the

prosecutor stated that he had reflected on the facts of the case

and    had   concluded            that    his       sentence     recommendation         gave    the

defendant "'a tremendous break from the system.'"                                      Id., ¶15.

Despite the fact that the prosecutor also made the agreed upon

recommendation,         the        court       of    appeals     determined      that    such     a

comment "'implicitly suggests that [the prosecutor] has changed
[his] mind about [his] recommendation.'"                           Id. (quoting Williams,

249 Wis. 2d 492, ¶71 (Wilcox, J., concurring in part, dissenting

in part)).        The court of appeals determined that such a comment

was a material and substantial breach of the plea agreement.

Id., ¶17.

       ¶77   In       the    case        at    issue,      the    prosecutor       in    no     way

undermined or distanced himself from a recommendation at the

"high end range" of the PSI.                        The prosecutor's quotation of the
jail    incident            report        supplied         the     court    with        relevant
                                                    29
                                                                            No.    2012AP2557-CR



information which the prosecutor explicitly tied to a proper

sentencing factor: the "need to protect the public from William

Bokenyi."      The     prosecutor's          comment         that      the        report     was

"frightening" was, at most, an editorial comment akin to those

made   in    Ferguson        and    Naydihor.          Further,        immediately         after

discussing the jail incident report, the prosecutor explicitly

endorsed a sentence that comported with the plea agreement.                                  The

prosecutor     in     the    case    at   issue       in    no   way    expressed       second

thoughts about the agreement with the defendant, nor did he

express any indication that he thought the defendant was getting

an   undeserved       "break"      from   the     system,        as    in    Liukonen.        If

anything,     counsel       should    feel      the    compunction           to    advise    the

court of relevant information regarding the defendant's conduct.

       ¶78    Thus,     in     the     case       at       issue,      the        prosecutor's

discussion of the jail incident report did not materially and

substantially breach the plea agreement.

                                     V.      CONCLUSION

       ¶79    We conclude that the prosecutor's comments during the
sentencing hearing did not constitute a material and substantial

breach of the plea agreement.                 As a result, we need not address

Bokenyi's argument that his trial counsel was ineffective, nor

must we consider the State's request that Sprang be overruled.

We therefore reverse the decision of the court of appeals.

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

reversed.




                                             30
                                                                  No.   2012AP2557-CR.ssa


      ¶80     SHIRLEY S. ABRAHAMSON,               C.J.      (dissenting).          I join

Justice     Prosser's    dissent.         I       write   to   point    out   that     this

review should be dismissed as improvidently granted,1 and that if

review is granted, the prosecutor materially and substantially

breached the plea agreement.

      ¶81     The majority opinion does not decide the issue that

was the subject of the State's petition for review, and the

State conceded in its            petition for review that "although it

disagree[d] with the court of appeals' resolution" of "whether

the       prosecutor's       sentencing           argument      breached      the      plea

agreement," the issue of whether the prosecutor materially and

substantially      breached      the    plea         agreement     "standing        alone,

likely would not warrant supreme court review."2

                                              I

      ¶82     The State sought review, asking this court to decide

whether State v. Sprang, 2004 WI App 121, ¶2, 274 Wis. 2d 784,

683   N.W.2d 522,        a    court    of         appeals      decision,      should    be

overturned.




      1
       "In the end, this review is more about error correction
than law development and more about the significance of
undisputed facts than about a need to clarify the law."    State
v. Gajewski, 2009 WI 22, ¶11, 316 Wis. 2d 1, 762 N.W.2d 104 (per
curiam).

     See also Nedvidek v. Kuipers, 2009 WI 44, ¶4, 317
Wis. 2d 340, 766 N.W.2d 205 (dismissing petition for review as
improvidently granted "because the issues for which we took the
case do not present any novel questions or lead to the
development of the law").
      2
          State's Petition for Review and Appendix at 4.

                                              1
                                                                       No.   2012AP2557-CR.ssa


      ¶83    Sprang concluded that it is "tantamount to entering a

renegotiated plea agreement without [the defendant's] knowledge

or   consent"      if   defense    counsel          fails     to       consult       with     the

defendant       about    counsel's       decision           not        to    object      to    a

prosecutor's sentencing remarks that breach a plea agreement.3

      ¶84    The    majority      opinion         does   not      address          the   Sprang

issue.      Rather, the only issue the majority opinion addresses is

the application of the test set forth in State v. Williams, 2002

WI 1, ¶¶38, 43-44, 249 Wis. 2d 492, 637 N.W.2d 733, to determine

whether the prosecutor's remarks at sentencing materially and

substantially breached the plea agreement.

      ¶85    The    parties,      the    majority         opinion,           the    court     of

appeals, the circuit court, Justice Prosser's dissent, and I

agree that the test set forth in Williams is the correct test to

apply in the present case.                According to the Williams test,

prosecutors must balance two duties:                      (1) the duty to present

all relevant information to the sentencing court; and (2) the

duty to honor the plea agreement.                        "A prosecutor may convey
information to the sentencing court that is both favorable and

unfavorable to an accused, so long as the State abides by the

plea agreement."        Williams, 249 Wis. 2d 492, ¶44.

      ¶86    I agree with the State's assessment that the petition

for review in the present case should not have been granted to

decide    the    sole   issue     of    the       propriety       of    the    prosecutor's




      3
       State v. Sprang, 2004 WI App 121, ¶29, 274 Wis. 2d 784,
683 N.W.2d 522.

                                              2
                                                                  No.   2012AP2557-CR.ssa


remarks.          I     would    therefore            dismiss     the     petition    as

improvidently granted.

                                           II

     ¶87    Because the court is unwilling to dismiss the matter,

I write to agree with the decision of the court of appeals that

the prosecutor's sentencing remarks materially and substantially

breached the plea agreement.4               A prosecutor's "impl[ying] that

[the defendant] should receive a harsher sentence" is a material

and substantial breach of the plea agreement.5

     ¶88    I have examined all three of the prosecutor's comments

at issue in the instant case and conclude, as did the court of

appeals    and    Justice       Prosser's       dissent,        that    the   prosecutor

implied to the sentencing court that the defendant deserved a

harsher sentence than that recommended in the plea agreement,

thus materially and substantially breaching the plea agreement.

Accordingly, I dissent.

     ¶89    The       implications    of        the    prosecutor's       comments    at

sentencing are at issue here.                   The three comments made by the
prosecutor at sentencing are as follows.

     ¶90    After the prosecutor recited the maximum penalties in

the sentencing agreement, the prosecutor stated:

     4
       State v. Bokenyi, No. 2012AP2557, unpublished slip op.,
¶11 (Wis. Ct. App. June 18, 2013).
     5
       State v. Liukonen, 2004 WI App 157, ¶17, 276 Wis. 2d 64,
686 N.W.2d 689.

     The Williams test prevents commentary from "implicitly
conveying the message that [the prosecutor] was questioning the
wisdom of the plea agreement."    State v. Williams, 2002 WI 1,
¶39, 249 Wis. 2d 492, 637 N.W.2d 733.

                                            3
                                                                  No.   2012AP2557-CR.ssa

       I think the felony classifications obviously indicate
       the extreme seriousness of these offenses that night.
       But to be honest, I don't think they really do them
       justice in terms of how serious this was.
       ¶91       The prosecutor read the victim's letter at sentencing

and commented on the letter as follows:

       [T]here's the need to protect the public or the
       public's interest in rehabilitation of the defendant
       and I think this overwhelmingly comes down the
       protection of the public interest.   The protection of
       the public, being Sherry [sic] Bokenyi and their son.
       They have a right, as she says in her letter, to live
       fearlessly while their son is growing up and in
       school. She has a right to live not in fear that Mr.
       Bokenyi, when he gets out, is going to come looking
       for her and to finish what he's attempted at least one
       other time before.
       ¶92       The   prosecutor    editorialized        on    the     "jail    incident

report" as follows:

       What is again perhaps the most frightening for me is
       to read an incident report from the Polk County
       Jail . . . . [The defendant threatened] to "shoot up
       some cops" . . . and . . . anyone who got in his
       way . . . . There is an absolute necessity to protect
       the public from William Bokenyi.
       ¶93       The   defendant    argues       that   these    comments       insinuate

that       the    plea    agreement's        recommended        sentence        would   be
insufficient.             The      majority       opinion       responds        that    the

defendant's argument fails because the prosecutor has imparted

relevant information for a court to consider.                            Majority op.,

¶¶44, 51, 71.            The majority opinion emphasizes relevance, not

the prosecutor's duty to honor the plea agreement by effectively

communicating that the prosecutor believed the plea agreement's

recommended sentence was appropriate.6

       6
           See Liukonen, 276 Wis. 2d 64, ¶16.

                                             4
                                                          No.   2012AP2557-CR.ssa


     ¶94    I appreciate that often there may be a "fine line"

between conveying relevant information and breaching the plea

agreement.7     Nevertheless I conclude that in the instant case

each comment separately and the three comments together implied

that the prosecutor believed the defendant deserved a sentence

harsher than the plea agreement's recommended sentence.                   Thus,

the prosecutor materially and substantially breached the plea

agreement.

     ¶95    I   would   add   to   the   court   of   appeals    decision    and

Justice    Prosser's    dissent    the   admonition     that    because   "[t]he

reality is that plea bargains have become . . . central to the

administration of the criminal justice system . . . and ours 'is

for the most part a system of pleas, not a system of trials,'"8

prosecutors, defense counsel, and circuit courts must carefully

and wholly fulfill their respective responsibilities in the plea

agreement process.

     ¶96    For the reasons set forth, I dissent and would remand

the cause for a new sentencing hearing.
     ¶97    I   am   authorized    to    state   that    Justice    ANN   WALSH

BRADLEY joins this opinion.




     7
         See Williams, 249 Wis. 2d 492, ¶44.
     8
       Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012) (quoting
Lafler v. Cooper, 132 S. Ct. 1376, 1388 (2012)).

                                         5
                                                                          No.    2012AP2557-CR.dtp


       ¶98       DAVID     T.    PROSSER,         J.      (dissenting).          The     issue     in

this case is whether the prosecutor materially and substantially

breached the plea agreement when he made statements that implied

that       the     sentencing         recommendation          was       too     lenient.         The

majority concludes that the prosecutor did not undercut the plea

agreement when he stated that the felony classifications of the

crimes charged did not do the offenses justice, when he endorsed

the victim's statement that arguably called for a longer term of

confinement than the prosecutor agreed to recommend, and when he

characterized Bokenyi's threats to shoot police officers as "the

most       frightening          for    me."             Because    I    conclude         that    the

prosecutor           materially        and        substantially         breached         the     plea

agreement, and Bokenyi's counsel provided ineffective assistance

in failing to object to the breach, I respectfully dissent.

                          FACTUAL AND PROCEDURAL BACKGROUND

       ¶99       William        Bokenyi       (Bokenyi)           was    charged       with       ten

offenses stemming from an incident in which he threatened to

kill his wife and son while he was wielding two knives.                                         Seven
of   the       ten      offenses      were    felonies.           Fourteen       months        later,

Bokenyi          pled    guilty       to     first-degree          recklessly       endangering

safety, a Class F felony (Count 1),1 intimidating a victim, a

Class      G     felony     (Count         3),2    and     failing      to    comply      with     an

officer's         attempt       to    take    a    person     into      custody,     a    Class    I

felony (Count 4).3              All other offenses were dismissed but read in

       1
           Wis. Stat. § 941.30(1).
       2
           Wis. Stat. § 940.45(1).
       3
           Wis. Stat. § 946.415(2).

                                                    1
                                                                     No.    2012AP2557-CR.dtp


for purposes of sentencing.               Bokenyi also had a prior conviction

for first-degree recklessly endangering safety as well as a non-

violent federal felony.

       ¶100 Bokenyi's pleas were part of a plea bargain in which

the State agreed that its sentencing recommendation "would be

capped . . . at        the   high       end    range    of   the      PSI    [Pre-Sentence

Investigation]."

       ¶101 Bokenyi committed his offenses on August 1, 2010.                                 He

entered his plea on September 30, 2011.                      Because Bokenyi was in

custody    from    the   date      of    his       offenses,    he     was       entitled     to

receive 14 months of credit on any sentence of confinement he

received as of the date of his plea.                    Every day from the date of

his plea through the date of his sentence added another day of

sentence credit.

       ¶102 The    parties      and     the    court     agreed       upon       a   PSI.      It

arrived    on    December     5,    2011.           Sentencing     was       then      set   for

January 23, 2012.            Consequently, Bokenyi was entitled to 540

days of credit against his sentence on the day he was sentenced.
       ¶103 It    is     impossible           to      know     what        the       prosecutor

anticipated in terms of a PSI sentencing recommendation.                                      The

maximum period of "imprisonment" for the three felonies that

Bokenyi pled to was 26 years.                       Wis. Stat. § 939.50(3)(f)-(g),

(i).     This translates into a maximum period of confinement of 14

years.    Wis. Stat. § 973.01(2)(b)6m.-7., 9.

       ¶104 The PSI recommended three to four years of initial

confinement,      plus   many      years       of    extended    supervision.                Four



                                               2
                                                                      No.    2012AP2557-CR.dtp


years of confinement was less than one-third of the maximum

confinement that the court could impose.

       ¶105 Under the plea bargain, the prosecutor was bound to

recommend no more than four years of initial confinement.                                    But

if the court imposed four years of initial confinement (365 x 4

= 1460 days), the defendant would be released from confinement

in 920 days (1460 - 540 = 920), a little more than two and a

half years after he was sentenced.

       ¶106 There     is    no     dispute        that    the   prosecutor's          explicit

recommendation complied with the plea agreement; that is, he did

not ask for more than four years of initial confinement.

       ¶107 The question is whether he breached the plea agreement

by    implying   in       his     sentencing        remarks      that       this     four-year

recommendation        was       too     lenient——that           the    defendant        should

receive a longer sentence.

                          CONTROLLING PRINCIPLES OF LAW

       ¶108 The seminal case on a prosecutor's obligation to keep

his part of a plea bargain is Santobello v. New York, 404 U.S.
257    (1971).      "[P]lea           bargaining,"        the    Court       said,    "is     an

essential component of the administration of justice."                                  Id. at

260.     "[W]hen      a    plea    rests      in    any    significant         degree    on    a

promise or agreement of the prosecutor, so that it can be said

to be part of the inducement or consideration, such promise must

be fulfilled."        Id. at 262.

       ¶109 Santobello          was    not    a    unanimous      opinion      because       the

justices    disagreed            about       the     defendant's            remedy     for     a
prosecutor's breach.            But all justices agreed that the breach of

                                              3
                                                                     No.    2012AP2557-CR.dtp


a plea agreement requires a remedy.                       Justice Douglas observed

that    lower     courts     "have    uniformly          held    that      a     prisoner    is

entitled     to    some     form     of    relief        when    he     shows      that     the

prosecutor        reneged     on     his    sentencing           agreement          made     in

connection      with    a   plea     bargain."           Id.    at   266       (Douglas,    J.,

concurring).       Justice Marshall concluded that a defendant "must

be permitted to withdraw his guilty plea," id. at 267 (Marshall,

J., concurring in part, dissenting in part), when the prosecutor

breaches the plea agreement.

       ¶110 This court has summed up the law: A defendant "has a

constitutional right to the enforcement of a negotiated plea

agreement."       State v. Williams, 2002 WI 1, ¶37, 249 Wis. 2d 492,

637    N.W.2d 733       (footnote     omitted).            Inasmuch        as     this    basic

principle    is    beyond     dispute,      the      question        becomes       whether    a

prosecutor's comments constitute a breach.

       ¶111 At sentencing, "[t]he State must balance its duty to

convey relevant information to the sentencing court against its

duty to honor the plea agreement."                   Id., ¶44.          A prosecutor may
not undercut an express sentencing recommendation by insinuating

that it is too lenient.               See id., ¶42; State v. Ferguson, 166

Wis. 2d 317,       322,     479    N.W.2d 241        (Ct.       App.    1991)      (citation

omitted) (stating that a prosecutor may not "convey a message to

the trial court that a defendant's actions warrant a more severe

sentence than that recommended").                    Implying that a sentencing

recommendation         is   insufficient        is   a    material         and   substantial

breach because it "defeats the benefit for which the accused
bargained."       Williams, 249 Wis. 2d 492, ¶38 (footnote omitted).

                                            4
                                                                 No.    2012AP2557-CR.dtp


      ¶112 Thus,     I   agree     completely      with      paragraph        43   of     the

majority opinion:

           It is certainly true that "'[e]nd runs' around a
      plea agreement are prohibited."         Williams, 249
      Wis. 2d 492, ¶42 (citing State v. Hanson, 2000 WI App
      10, ¶24, 232 Wis. 2d 291, 606 N.W.2d 278). "The State
      may not accomplish by indirect means what it promised
      not to do directly, and it may not covertly convey to
      the trial court that a more severe sentence is
      warranted than that recommended."        Id. (quoting
      Hanson, 232 Wis. 2d 291, ¶24; citing Ferguson, 166
      Wis. 2d at 322).
      ¶113 A      defendant       is    not     entitled      to       relief      from    a

prosecutor's comments or conduct at sentencing unless a breach

of the plea agreement is material and substantial.                              Williams,

249   Wis. 2d 492,         ¶38.         "[W]hether         the      State's        conduct

constitutes a breach of a plea agreement and whether the breach

is material and substantial are questions of law."                       Id., ¶2.

      ¶114 When a prosecutor violates the principles discussed

above in paragraph 112, that violation constitutes a material

and substantial breach of the plea agreement.

                            THE SENTENCING HEARING
      ¶115 I turn now to the sentencing hearing.                        When the court

reviews a sentencing transcript to determine whether there was a

material    and    substantial         breach    of    the    plea      agreement,         it

examines the whole proceeding.                  Id., ¶46.          The court closely

examines   the     sentencing      transcript         to   determine      whether         the

prosecutor was faithful to the bargain.

      ¶116 Circuit Judge Molly E. GaleWyrick began the sentencing

hearing    by    listing    Bokenyi's         convictions        and    the     dismissed
charges:

                                           5
                                                             No.   2012AP2557-CR.dtp

      Mr. Bokenyi was convicted on September 30, 2011 of
      Count 1, first degree reckless endangering safety.
      That is a Class F felony. It's punishable by 12 years
      and 6 months in prison, divided 7.5 in and 5 out.
      Count 3 is intimidate a victim, use or attempted
      force. This is a Class G felony. It is punishable by
      imprisonment not to exceed 10 years. It's 5 in and 5
      out.   And Count 4 failure to comply with an officer.
      That's a Class I felony, punishable by 3.5 years in
      prison.   1.5 in and 2 out.      There were additional
      counts which were read-in for purposes of sentencing.
      Count 2 is another count of intimidate a victim, use
      or attempt of force.    Counts 5 through 7, battery to
      law   enforcement   officer/firefighter.     Count  8,
      disorderly conduct. Count 9 resisting or obstructing.
      Count 10 endangers safety with a dangerous weapon.
Shortly after the judge read the charges, the prosecutor read a

letter from Sherri Bokenyi (Sherri), the defendant's wife and

the principal victim of his crimes:

           To Judge GaleWyrick, to whom it may concern. It
      has been a long wait for this day, yet I'm still
      nervous and scared. I want Bill to serve time due to
      him that justifies his behavior. But also I want him
      to get help while he is in prison. Myself and our son
      [MB], are afraid for the day Bill will get let out
      because we are unsure of what he would be capable of
      doing.   I prefer that we could live fearlessly while
      our son MB only 11 is growing and in school.    Thank
      you. [Sherri] Bokenyi.
      ¶117 The     prosecutor     then       described   the       offense.       He

described how Bokenyi had two knives in his hands when officers

arrived and how he slammed the door when the officers told him

to   drop   the   knives   and   get     on   the   floor.         The    prosecutor

described how the officers heard Bokenyi yell that he was going

to kill his wife and how the officers had to shoot Bokenyi

because     he   would   not   comply    with   their    orders      to    drop   the

knives.     The prosecutor recounted Sherri's testimony about how
Bokenyi asked repeatedly whether Sherri or their son should die

                                         6
                                                               No.   2012AP2557-CR.dtp


first.     He then described how Bokenyi's son dialed 911, and he

commented that the child would have to live with the memory of

that event for the rest of his life.

    ¶118 All this was permissible.                   The prosecutor needed to

support his recommendations by establishing the gravity of the

offenses.     The    description     of       the   incident     demonstrated       the

severity of the crimes for which Bokenyi was being sentenced.

Had the prosecutor stopped there, this would be an easy case.

However,    the     prosecutor     went        on    to   make       three    errors.

Especially when these errors are considered together——considered

cumulatively——they constitute a material and substantial breach

of the plea agreement.

                   COMMENTS ABOUT THE CRIMES' SEVERITY

    ¶119 The prosecutor's first breach of the plea agreement

occurred    when    he   described   the        severity   of        the   crimes   as

follows:

         The three convictions that [Bokenyi] is being
    sentenced on today is a first degree reckless
    endangerment, a 12 and a half year felony, and
    intimidation of a victim, a 10 year felony and failure
    to comply with a law enforcement officer, a 3 and a
    half year felony. I think the felony classifications
    obviously indicate the extreme seriousness of these
    offenses that night. But to be honest, I don't think
    they really do them justice in terms of how serious
    this was.

         This was a man who had history and I think it's
    backed up not only from the PSI but in what Mr.
    Smestad has provided. A history of homicidal thoughts
    or ideations about killing his wife and killing his
    son. And I believe, it's the state's contention that
    he was intent on carrying out that ideation that night
    and if not for law enforcement's interceding, it may
    well have been carried out.

                                          7
                                                           No.    2012AP2557-CR.dtp

           So although these are three felonies and these
      are very serious crimes, I don't think to be honest
      with you that they even come close to telling what
      could have happened that night and what might have
      happened that night and just in and of itself the
      seriousness of what did happen that night.  It's all
      exacerbated by this all happening in front of this
      couple's child. He was I believe 10 at the time when
      this happened. He's now 11.
      ¶120 These paragraphs are significant in several ways.

      ¶121 The prosecutor repeated the offenses and the penalties

for the offenses, even though the court had gone over the same

information moments earlier.        He repeated the maximum period of

"imprisonment."      Then he said that "the felony classifications

obviously indicate the extreme seriousness of these offenses."

But, "I don't think they [e.g., the three felony convictions]

really do . . . justice in terms of how serious this was."

      ¶122 After    describing    Bokenyi's       homicidal       thoughts    about

"killing his wife and son," the prosecutor again offered his

opinion that "although these are three felonies and these are

very serious crimes, I don't think . . . that they [e.g., the

three felony convictions] even come close to telling what could

have happened that night."

      ¶123 No doubt the prosecutor is permitted to point out the

seriousness of crimes, and no doubt the prosecutor is entitled

to   focus   the   court's    attention     on   the    future.        But   is   the

prosecutor    entitled   to    convey     the    view   that     the   defendant's

conduct was more grievous than what is reflected in the crimes

to which the defendant pled guilty, especially when that view is

connected with concern about the future?



                                        8
                                                                 No.    2012AP2557-CR.dtp


       ¶124 Here, when the prosecutor listed the maximum terms of

imprisonment        and     then    immediately       stated      that     the       felony

classifications do not sufficiently indicate the seriousness of

the offenses, he implied that Bokenyi deserved longer sentences

than the maximum sentences for the three counts to which he

pled.

       ¶125 In State v. Liukonen, 2004 WI App 157, ¶¶15-17, 276

Wis. 2d 64, 686 N.W.2d 689, the court of appeals determined that

a   prosecutor       materially       and    substantially        breached       a     plea

agreement when he suggested that the defendant deserved a more

stringent     sentence       than     the    plea     agreement        provided.        In

Liukonen, the prosecutor stated that "even if the Court goes

along with the proposed sentence recommendation, I think [the

defendant] will be getting a tremendous break from the system,

but it has been agreed to . . . ."                  Id., ¶15.      Similarly, in the

present case, the prosecutor implied that he thought the plea

agreement     was     too     lenient       by    suggesting      that     the       felony

classifications of the charges do not do justice to Bokenyi's
offenses.

       ¶126 Unlike the majority, I do not believe the prosecutor

was merely communicating the State's position about the serious

nature of the offenses.             See majority op., ¶55.             Nor do I agree

with    the    majority's           discussion       of    the     circuit       court's

observations about the prosecutor's comments.                     See majority op.,

¶56.    The circuit court said, "[The prosecutor is] not talking

about   the   26    years     not    doing       justice   to    the   crimes.         He's
talking about . . . the A through I classification system not

                                             9
                                                                 No.    2012AP2557-CR.dtp


doing justice to how serious the conduct was in this particular

case."     What is the difference?             The classification system deals

with a range of penalties, and the prosecutor indicated in some

manner    that    the    system's       penalty      structure      was    "not    doing

justice to how serious the conduct was in this particular case."

If the system's classification structure is not adequate, how

can   a   sentence      of   confinement       of   less    than    a   third     of   the

maximum authorized by the system be adequate?

      ¶127 Although prosecutors must walk a fine line as they

make arguments at sentencing, Williams, 249 Wis. 2d 492, ¶44,

the line here is clear: a prosecutor may not suggest that the

defendant's      conduct     was   in    some       way   more     serious    than     the

charges to which he pled.               Such a suggestion implies that the

plea agreement is insufficient——a suggestion that constitutes a

material and substantial breach.

                  THE COMMENTARY ON THE VICTIM'S LETTER

      ¶128 The       prosecutor     breached          the    plea       agreement       by

endorsing the victim's statement that he had read earlier in the
hearing:

           Finally, there's the need to protect the public
      or the public's interest in rehabilitation of the
      defendant and I think this overwhelmingly comes down
      to the protection of the public interest.         The
      protection of the public, being [Sherri] Bokenyi and
      their son.    They have a right, as she says in her
      letter, to live fearlessly while their son is growing
      up and in school. She has a right to live not in fear
      that Mr. Bokenyi, when he gets out, is going to come
      looking for her and to finish what he's attempted at
      least one other time before.
(Emphasis added.)


                                          10
                                                                 No.   2012AP2557-CR.dtp


       ¶129 In her letter, Sherri mentioned that her son was 11

years   old.      The       prosecutor    repeated     the     child's     age      in    the

previously quoted passages.              The idea that Sherri has a right to

live without fear while her son is in school suggests that she

has a right to live without fear until her son turns 18——the age

at which students traditionally finish high school.                             Thus, by

agreeing   with        Sherri,     the   prosecutor      suggested       that       Bokenyi

should be confined for roughly seven years, a suggestion that

undermines       the     recommendation         of     four     years     of        initial

confinement.

       ¶130 It    must       be    remembered,       once     again,    that        if     the

defendant received only four years of initial confinement, he

would be scheduled for release in a little more than two and a

half years.       I am unable to agree with the majority that the

prosecutor's       recommendation         of    four     years     confinement             was

"seemingly consistent with the victim's wishes," majority op.,

¶68,    inasmuch       as    the    victim      specifically       asked       to        "live

fearlessly while our son M.B.[,] only 11[,] is growing and in
school."

       ¶131 The victim expressed fear in her letter "for the day

Bill will get let out."

       ¶132 Thus, when the prosecutor said, "They have a right, as

she says in her letter, to live fearlessly while their son is

growing up and in school," he was impliedly asking for more than




                                           11
                                                                    No.    2012AP2557-CR.dtp


two   and    a     half    years      of   additional      confinement.4           When    the

prosecutor referred to "when he gets out," he was not expressing

his confidence in extended supervision.

      ¶133 The majority dismisses the implication and effect of

the prosecutor's statements by emphasizing victims' rights.

      ¶134 While victims' rights are unassailably important, they

do    not    eclipse       the       rights   of    defendants.            The    Wisconsin

Constitution protects victims' rights, but it also explicitly

states, "Nothing in this section, or in any statute enacted

pursuant to this section, shall limit any right of the accused

which may be provided by law."                  Wis. Const. art. I, § 9m.                Thus,

Santobello and its progeny continue to require prosecutors to

fulfill      promises          made    pursuant     to     plea     agreements.            See

Santobello, 404 U.S. at 262.                    In fact, the advent of victims'

rights      laws      infuses    plea      bargains      and   prosecutor        conduct    at

sentencing with greater importance because a victim's statement

or recommendation might conflict with the plea agreement.                                Thus,

the prosecutor            must take care to avoid endorsing a victim's
statement        that     is    inconsistent       with    a   plea       agreement.       In

addition,        it     may     be    prudent      for    someone     other       than     the

prosecutor to read a victim's statement, especially in cases




      4
       The majority agrees with the circuit court's determination
that the prosecutor was permitted to reference the victim's
statement without augmenting it.    Majority op., ¶67.   However,
the prosecutor did not merely reference the statement; he agreed
with it.   Even absent augmentation, it is impermissible for a
prosecutor to agree with a victim's statement that contradicts a
plea agreement.

                                              12
                                                        No.   2012AP2557-CR.dtp


where    the   victim    explicitly   or   implicitly    makes    statements

contrary to the plea agreement.5

                        INCIDENT AT POLK COUNTY JAIL

     ¶135 The prosecutor's final error arose when he discussed

an incident that occurred seven months before Bokenyi entered

his plea and almost one year before the sentencing hearing.                The

prosecutor stated:

           What is again perhaps the most frightening for me
     is to read an incident report from the Polk County
     Jail     on    February    11th    of    2011.        A
     jailer . . . indicates that on the above date I was
     doing med pass on the maximum part of the jail.
     Inmate Bokenyi came out for the evening meds and I
     asked him how he was doing.     He stated okay, but he
     was still here and that he could not wait for the time
     that he was out of here so he could quote "shoot up
     some cops" end quote.     I asked him why he would do
     that.     He said they all deserved it.      And making
     conversations with him I stated that wouldn't he
     rather just get out and enjoy being out then [sic]
     risk coming back in.      He stated that next time he
     would not be coming back, and he would also shoot
     anyone who got in his way while he was shooting at the
     cops.    There is an absolute necessity to protect the
     public from William Bokenyi.
(Emphasis added.)




     5
       Although the circuit court concluded that it was not a
material and substantial breach for the prosecutor to read the
victim's statement, the court did note:

     Now in hindsight it would have been more appropriate
     for us to have brought the victim witness coordinator
     into court to read this statement or someone else
     other than the prosecutor.    I'll take responsibility
     for that.   I should have seen the potential for that
     being misunderstood or mischaracterized, and should
     have asked that some other person read it.

                                      13
                                                                No.   2012AP2557-CR.dtp


      ¶136 Reference to the jail incident came not long after the

prosecutor     said   that        Bokenyi    had    a     history     "of     homicidal

thoughts or ideations about killing his wife and killing his

son."    Then he added:

      [M]any    of    his    issues     with    his   mental
      health . . . arise out of suicidal and homicidal
      ideations, both in regard to his wife and in regard to
      his son.   He talks about having visions of slitting
      their throats . . . .   [Mrs. Bokenyi] has a right to
      live not in fear that Mr. Bokenyi, when he gets out,
      is going to come looking for her and to finish what
      he's attempted at least one other time before.
      ¶137 The jail incident broadened the defendant's threats

from his family to the police, and it enhanced a recurrent theme

in the PSI.

      ¶138 Immediately after reference to the jail incident, the

prosecutor made his recommendation:

           On Count 1 the state requests a sentence of 8
      years.   4 of initial confinement and 4 of extended
      supervision.

           On Count 3 state's requesting withheld sentence
      and for 5 years probation consecutive to Count 1.

           And on Count 4 the state is requesting for a
      withheld sentence, he be placed on probation for 3
      years, consecutive to Count 1, concurrent with Count
      3, with all the conditions laid out on page 3 of the
      PSI.
      ¶139 There      is     an     unsettling          incongruity     between      the

prosecutor's statements about multiple frightening incidents and

the   need   to    protect    the    public,       on    the   one    hand,    and   the

recommendation of only four years of initial confinement, on the

other.       The   discussion       of   the     jail     incident    came     after   a
description of the heinous crime, after a discussion of a past

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incident in which Bokenyi threatened his wife and police with a

firearm      in    Ashland,        and          after      a   description           of    Bokenyi's

homicidal thoughts and mental issues.

       ¶140 Thus, the prosecutor's sentencing recommendation did

not come with a bang, with a crescendo; it came with a whimper.

       ¶141 It     is     true    that          a    prosecutor           must     demonstrate        why

probation is not appropriate and why a period of confinement is

justified.          See     State          v.       Gallion,        2004     WI     42,    ¶44,       270

Wis. 2d 535,        678        N.W.2d 197             (citations            omitted)        (internal

quotation marks omitted) (stating that the court should impose

"the    minimum      amount           of        custody        or        confinement       which      is

consistent with the protection of the public, the gravity of the

offense      and   the     rehabilitative                 needs      of     the    defendant"         and

"should consider probation as the first alternative").                                      However,

in the present case, there were more than enough negative facts

to   support       the    recommended               sentence         without       the     prosecutor

characterizing the jail incident as "the most frightening."                                           It

was not necessarily improper for the prosecutor to mention the
jail   incident,         but     in     the         context         in    which     this    argument

appears——right           before       the       recommendation              of     four    years       of

initial           confinement——it                    undercuts              the          prosecutor's

recommendation.

       ¶142 The majority quotes Grant v. State, 73 Wis. 2d 441,

448,   243    N.W.2d 186          (1976),           for    the      proposition          that    it    is

against public policy for prosecutors to agree not to discuss

information        relevant        to       sentencing.                   Majority        op.,     ¶72.
However, there is no allegation or suggestion that the defendant

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asked       the    prosecutor       to     refrain       from     bringing       relevant

information to the court's attention in this case.                          Instead, the

defendant argues that the prosecutor's characterization of the

jail incident as "the most frightening for me" breached the plea

agreement.        I agree.

       ¶143 As a practical matter, if the prosecutor had known

about the jail incident at the time of plea negotiations, he

probably should have included in the plea agreement the fact

that he planned to mention the incident at sentencing.

       ¶144 After       the   parties      concluded      their    arguments      at    the

sentencing hearing, the circuit court said, "I agree with the

state that this is a very serious crime.                      It's a Class F felony

but that doesn't do it justice."                 (Emphasis added.)          On Count 1,

the court sentenced Bokenyi to seven years and five months6 of

initial       confinement     and    five    years       of     extended     supervision

concurrent with Counts 3 and 4.                  On Count 3, the court sentenced

Bokenyi to five years of initial confinement and five years of

extended supervision concurrent with Counts 1 and 4.                             On count
4,     Bokenyi     received     a    sentence       of    one     year     of    extended

supervision concurrent with Counts 1 and 3.

       ¶145 Whether the court was influenced by the prosecutor's

breach is not relevant to this analysis; it is important only

that the prosecutor materially and substantially breached the

plea       agreement.     Given     that    there    was      a   breach,    I   turn    to

whether Bokenyi's counsel was ineffective for failing to object.

       6
       The court later amended the judgment of conviction to
sentence Bokenyi to seven years and six months of initial
confinement and five years of extended supervision.

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                       INEFFECTIVE ASSISTANCE OF COUNSEL

       ¶146 Ordinarily, to prove that counsel was ineffective, a

defendant       must    demonstrate:            (1)    that     his       attorney       rendered

deficient       performance;           and       (2)     that        counsel's           deficient

performance resulted in prejudice.                           Strickland v. Washington,

466 U.S. 668, 687 (1984).                      Although a defendant must normally

prove prejudice to prevail on a claim of ineffective assistance

of    counsel,       when     a    prosecutor         materially          and     substantially

breaches a plea agreement, the court presumes prejudice.                                     State

v.     Smith,    207     Wis. 2d 258,            281-82,       558     N.W.2d 379          (1997).

Consequently, Bokenyi needed to prove only that his counsel was

deficient       to     prevail       in    this        case.         To     prove       deficient

performance,           "the       defendant           must      show        that         counsel's

representation           fell         below       an         objective            standard     of

reasonableness."            Strickland, 466 U.S. at 687-88.

       ¶147 At the hearing on Bokenyi's postconviction motion, the

attorney who represented Bokenyi at sentencing testified that he

did    not   believe        the    prosecutor         breached       the        plea   agreement.
When    an   attorney         fails       to    notice       that    the        prosecutor    has

materially and substantially breached the plea agreement, his

conduct falls below what is objectively reasonable.                                     Therefore,

I     conclude       that         Bokenyi's       counsel           provided           ineffective

assistance and would remand the case for resentencing.

                                          CONCLUSION

       ¶148 The prosecutor made a very effective, very powerful

argument.       In most circumstances, his argument would have been
welcome and entirely appropriate.                        In this case, however, the

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prosecutor entered into an ill-advised plea bargain in which he

ceded his sentencing recommendation prerogatives to the writer

of the PSI.      When the writer recommended a relatively light

sentence, the prosecutor faced a serious dilemma.                  The reality

of his dilemma cannot be ignored.

    ¶149 Nonetheless,      plea    agreements    are   not     to    be   taken

lightly.      When   the   State   agreed   to   limit       its    sentencing

recommendation to the upper range from the PSI in exchange for

Bokenyi's guilty pleas, it was required to uphold its end of the

bargain.     The State's implicit suggestions that the sentencing

recommendation    was   too   lenient    constituted     a    material      and

substantial breach of the plea agreement, and Bokenyi's counsel

was ineffective for failing to object to it.

    ¶150 I take no pleasure in this dissent because in many

ways I identify with the prosecutor.        The problem is that if the

prosecutor's comments here are approved as being consistent with

the obligations of the plea agreement, future defendants will

not be able to rely on the benefits they bargained for.
    ¶151 The integrity of the criminal justice system must be

preserved.

    ¶152 For the foregoing reasons, I respectfully dissent.

    ¶153 I am authorized to state that Chief Justice SHIRLEY S.

ABRAHAMSON and Justice ANN WALSH BRADLEY join this dissent.




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