State v. Jeremy V. Hoover

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 27, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal Nos. 2021AP1920-CR Cir. Ct. Nos. 2019CF41
2019CF50
2021AP1921-CR
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
JEREMY V. HOOVER,
DEFENDANT-APPELLANT.
APPEALS from judgments and an order of the circuit court for
Oconto County: MICHAEL T. JUDGE, Judge. Affirmed.
Before Stark, P.J., Hruz and Gill, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
Nos. 2021AP1920-CR
2021AP1921-CR
¶1 PER CURIAM. Jeremy Hoover appeals judgments convicting him
of one count of possessing child pornography and one count of second-degree
sexual assault of a child. He also appeals an order denying his postconviction
motion for plea withdrawal or, alternatively, resentencing. Hoover argues that he
should be allowed to withdraw his pleas because he received constitutionally
ineffective assistance when his trial counsel failed to file a motion to suppress his
post-polygraph confession. In the alternative, Hoover contends that he is entitled
to resentencing because his trial counsel was ineffective by failing to object to the
State’s breach of the plea agreement. The plea agreement required, among other
things, that the State follow the extended supervision recommendation in the
presentence investigation report (PSI). Hoover asserts that the State materially
breached that requirement at sentencing when the prosecutor stated: “It would be
up to the [c]ourt to set the length of [extended supervision]” on the child
pornography count.
¶2 We conclude that Hoover’s trial counsel did not perform deficiently
by deciding not to file a suppression motion and to instead prioritize obtaining a
favorable plea agreement. We also conclude that, under the circumstances of this
case, the State’s “up to the [c]ourt” comment at sentencing was not a material or
substantial breach of the plea agreement and, therefore, Hoover’s trial counsel did
not perform deficiently by failing to object to this technical breach. Accordingly,
we affirm.
BACKGROUND
¶3 In late March 2019, the State charged Hoover in Oconto County case
No. 2019CF41 with three counts of possession of child pornography. Two weeks
later, the State filed another criminal complaint in Oconto County case
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No. 2019CF50, charging Hoover with two counts of first-degree sexual assault of
a child under thirteen years old, two counts of incest, and one count of causing a
child under thirteen years old to view sexual activity. All of the charges stemmed
from a federal investigation into Hoover’s activity in an online chat room that
shared and discussed child pornography.
¶4 According to the criminal complaints, Hoover posted multiple
images of child pornography in the chat room; posted images of a clothed
two-year-old child, Abigail,1 who was related to him; and described engaging in
sexual activity with Abigail. Hoover also sent private messages to an undercover
federal agent, including one message stating that he is “active” with Abigail
“[w]hen [he] can be.” Federal authorities later identified Hoover as the
responsible individual and contacted the Oconto County Sheriff’s Office to take
over the case.
¶5 The sheriff’s office eventually questioned Hoover and confronted
him regarding his online activity. Hoover admitted that he was an active member
of multiple online groups that discussed children in a sexual manner. He also
admitted that he posted links and images containing child pornography. However,
when confronted with his messages discussing sexual activity with Abigail,
Hoover denied having any sexual contact with her.
¶6 Hoover agreed to undergo a polygraph examination with an FBI
agent to determine the truthfulness of his statements. During the polygraph,
1
Pursuant to the policies underlying WIS. STAT. RULE 809.86(4) (2021-22), we use a
pseudonym instead of the victim’s name. All references to the Wisconsin Statutes are to the
2021-22 version unless otherwise noted.
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Hoover denied ever, as an adult, having sexual contact with a child or touching a
child in a sexual manner. After the examination, the FBI agent told Hoover that
he had failed the polygraph and that the agent was “certain Hoover was lying”
about not having sexual contact with children or touching children in a sexual
manner. The agent also said he believed Hoover was having sexual contact with
Abigail. The agent told Hoover that if he truly loved Abigail, then “he needed to
get help for himself so she would be safe from him in the future.”
¶7 Hoover responded to the agent’s statements and stated that he
“wanted to be honest about what was going on.” Hoover admitted to having
sexual contact with Abigail on four separate occasions, starting when she was
approximately seven months old and ending when she was about sixteen or
seventeen months old. At the end of the interview, the agent recounted the details
of Hoover’s confession, which Hoover verified as being accurate and truthful.
¶8 In October 2019, the State and Hoover entered into a global plea
agreement to resolve the two cases. Under the agreement, Hoover would plead
guilty or no-contest to one amended count of second-degree sexual assault of a
child and one count of possession of child pornography, the remaining counts
would be dismissed and read in, the parties would jointly recommend a PSI, the
State would recommend no more than fifteen years’ initial confinement, and the
State would follow the PSI’s recommendations for the conditions and length of
extended supervision.
¶9 The circuit court held a plea hearing, at which Hoover entered
no-contest pleas pursuant to the plea agreement. Hoover confirmed that he
understood the plea questionnaire and waiver of rights form and that he knew the
court could sentence him to the maximum penalty for each of the two counts.
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After accepting Hoover’s pleas and finding him guilty of the two offenses, the
court ordered a PSI, which ultimately recommended concurrent sentences totaling
ten to eleven years’ initial confinement followed by five to six years’ extended
supervision.
¶10 At the sentencing hearing, the State began its sentencing argument
by summarizing its recommendations:
Your Honor, the State’s going to recommend 15 years
initial confinement with a period of [extended supervision].
Pursuant to plea negotiations, the State’s willing to follow
the recommendations as far as the conditions of [extended
supervision] that the Department [of Corrections] is
recommending [in the PSI]. That’s on the second degree
sexual assault of a child.
On the child pornography, the State’s going to recommend
that … the minimum mandatory period of initial
confinement run concurrent again pursuant to plea
negotiations. It would be up to the [c]ourt to set the length
of [extended supervision] on that file also.
(Emphasis added.) Following the State’s initial summary of its recommendation,
the State mentioned extended supervision only one other time, noting that if
Hoover is not reformed in prison, “there’s also an extensive period of time that
he’d be subject to supervision under the extended supervision that’s available to
the [c]ourt.” Hoover’s counsel, in turn, argued that the court should adopt the
sentences recommended in the PSI. Ultimately, the court imposed consecutive
sentences, totaling fifteen years’ initial confinement followed by ten years’
extended supervision.
¶11 Hoover later filed a postconviction motion seeking plea withdrawal
or resentencing. Hoover alleged that his trial counsel had been constitutionally
ineffective “for failing to file a pretrial motion to suppress [Hoover’s]
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post-polygraph statements” and “for failing to object to a material breach of the
plea agreement by the prosecutor” when the prosecutor said “[i]t would be up to
the [c]ourt to set the length of [extended supervision].”
¶12 The circuit court held a Machner2 hearing on Hoover’s motion, at
which both Hoover and his trial counsel testified. Counsel testified that he and
Hoover discussed the possibility of seeking to suppress Hoover’s post-polygraph
statements. In those discussions, Hoover “indicated that the mechanical portions
of the [polygraph] device were unhooked,” that “[h]e was separated from the
machine,” that “[h]e was told … he had failed,” and that he felt “pressure” to give
a statement. Based on counsel’s discussions with Hoover, counsel believed
Hoover understood that the examination was done before he confessed to the other
crimes. Counsel testified that he researched the relevant law, conferred with his
supervising attorney, and concluded that a suppression motion was unlikely to
succeed.
¶13 Hoover’s trial counsel also testified that his decision to not file a
suppression motion was guided, in part, by Hoover’s goals in the case. Counsel
believed that Hoover did not want to go through a trial “out of concern [for] his
family” and the “social strain [it] would put on them.” In addition, counsel was
concerned he would “undermine [his] attempt to get a better [plea] offer” by filing
a motion that he did not believe would succeed. With regard to the State’s
sentencing recommendation, counsel testified that he “did not catch the
discrepancy between the written plea offer and what the State recited to the
[c]ourt.”
2
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
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¶14 Hoover subsequently testified that he did not recall any discussion
with his trial counsel regarding the possibility of moving to suppress Hoover’s
post-polygraph statements, nor did he recall counsel advising that such a motion
was unlikely to succeed. Hoover claimed that if he had known he could move to
suppress his statements, he would not have entered his pleas without filing the
suppression motion. Hoover acknowledged that his main goals in the case were to
obtain “the least amount of prison time possible,” “to get any [possible] help,”3
and to reduce the amount of “public stress” his family was under by taking a plea
deal.
¶15 Hoover recalled that the FBI agent questioned him for fifteen to
twenty-five minutes while Hoover was connected to the polygraph machine. At
the end of the examination, the FBI agent removed the polygraph sensors and then
told Hoover that “it didn’t go well,” that he had “failed,” and that he “was a liar.”
According to Hoover, the agent then told him that he “ha[d] to talk to [the agent],
so … [they] started a conversation at that point.” Hoover said the agent told him
more than once that the polygraph “didn’t go well” and that he had “failed.”
Hoover stated that he eventually broke down emotionally and confessed to the
sexual assaults because he thought he “was not going to be able to leave that room
until [he] spoke to [the agent].” Hoover acknowledged, however, that he knew he
had the right to remain silent and could ask for an attorney because he was
previously informed of that right.
3
Hoover never described the kind of “help” for which he hoped to receive. Thus, it is
unclear whether Hoover was referring to legal help, treatment help, or some other form of help.
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¶16 The circuit court later issued a written decision, which summarized
the relevant testimony from the Machner hearing and noted that the court found
Hoover’s trial counsel’s testimony to be “the most credible” as compared to
Hoover’s testimony. Ultimately, the court denied Hoover’s postconviction
motion, concluding that Hoover’s trial counsel was not ineffective for failing to
file a motion to suppress Hoover’s post-polygraph statements or for failing to
object to the State’s breach of the plea agreement. In deciding Hoover’s claim
regarding the State’s breach of the plea agreement, the court recognized that its
sentencing decision exceeded all of the sentence recommendations. The court
therefore concluded that “the prosecutor’s recommendation for extended
supervision at sentencing is not a material breach that in anyway prejudiced
[Hoover].”
¶17 Hoover now appeals, renewing the arguments he made to the circuit
court. Additional facts will be provided as necessary below.
DISCUSSION
I. Plea withdrawal based upon trial counsel’s decision not to file a
suppression motion
¶18 We review a circuit court’s decision to deny a plea withdrawal
motion for an erroneous exercise of discretion. State v. Schmidt, 2021 WI 65,
¶12, 397 Wis. 2d 758, 960 N.W.2d 888. A defendant is entitled to withdraw a
guilty or no-contest plea after sentencing if the defendant “show[s] by clear and
convincing evidence that a refusal to allow withdrawal of the plea would result in
manifest injustice.” State v. Dillard, 2014 WI 123, ¶36, 358 Wis. 2d 543, 859
N.W.2d 44. “One way to demonstrate manifest injustice is to establish that the
defendant received ineffective assistance of counsel.” Id., ¶84.
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¶19 To prevail on an ineffective assistance of counsel claim, the
defendant must establish that his or her counsel performed deficiently and that
counsel’s deficient performance prejudiced the defense. State v. Breitzman, 2017
WI 100, ¶37, 378 Wis. 2d 431, 904 N.W.2d 93. We need not consider both
components of this inquiry if the defendant does not make a sufficient showing on
one. Id.¶20 A defendant establishes deficient performance by showing that
counsel’s conduct fell below “an objective standard of reasonableness.” State v.
Savage, 2020 WI 93, ¶28, 395 Wis. 2d 1, 951 N.W.2d 838 (citation omitted). We
afford great deference to counsel’s conduct, “presuming that it ‘falls within the
wide range of reasonable professional assistance.’” Id. (citation omitted).
Counsel’s strategic choices, made after a thorough investigation of the law and
facts, “are virtually unchallengeable.” Strickland v. Washington, 466 U.S. 668,
690 (1984).
¶21 To establish prejudice, a “defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694.
However, “a defendant need not prove the outcome would ‘more likely than not’
be different in order to establish prejudice.” State v. Sholar, 2018 WI 53, ¶44, 381
Wis. 2d 560, 912 N.W.2d 89 (citation omitted). In the context of a postconviction
motion seeking plea withdrawal, “the defendant must allege that ‘but
for … counsel’s errors, he [or she] would not have pleaded guilty and would have
insisted on going to trial.’” State v. Burton, 2013 WI 61, ¶50, 349 Wis. 2d 1, 832
N.W.2d 611 (citation omitted).
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¶22 Whether a defendant received infective assistance of counsel is a
question of constitutional fact. Dillard, 358 Wis. 2d 543, ¶86. We will uphold the
circuit court’s findings of fact, including findings regarding the circumstances of
the case and defense counsel’s strategy, unless those findings are clearly
erroneous. Id. However, we independently determine “whether those historical
facts demonstrate that defense counsel’s performance met the constitutional
standard for ineffective assistance of counsel.” Id.¶23 Hoover argues that his trial counsel provided ineffective assistance
by not filing a motion to suppress Hoover’s post-polygraph statements. Hoover
acknowledges that his trial counsel had two main reasons for not doing
so: (1) counsel did not believe that a suppression motion was likely to succeed;
and (2) counsel was concerned that the filing of a weak suppression motion would
undermine his attempt to obtain a better plea offer. Nonetheless, Hoover contends
that counsel performed deficiently because such a motion had “substantial merit”
and, if successful, would have resulted in the dismissal of all charges that did not
involve possession of child pornography. Hoover further suggests that the filing
of the suppression motion would have only improved his plea bargaining position.
¶24 Hoover’s arguments fall well short of demonstrating deficient
performance. Counsel testified at the Machner hearing—and the circuit court
credited his testimony—that he researched the relevant law concerning
post-polygraph statements; that he considered the available facts, including
Hoover’s recollection of the post-polygraph interview; that he conferred with his
supervising attorney; and that he determined a suppression motion was not likely
to succeed. Counsel further explained that he believed, based on his discussions
with Hoover, that Hoover understood the polygraph examination was over before
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he confessed to additional crimes and that the factual context was insufficient to
establish that Hoover’s statements were involuntary.
¶25 Counsel’s understanding of the applicable law and its application to
the relevant facts was not unreasonable. Post-polygraph statements are admissible
into evidence if they are made in an interview that is discrete from the polygraph
examination and are voluntary under ordinary constitutional considerations. State
v. Vice, 2021 WI 63, ¶24, 397 Wis. 2d 682, 961 N.W.2d 1. “Whether a statement
is considered part of … a totally discrete event is largely dependent upon whether
the [polygraph examination] is over at the time the statement is given and the
defendant knows the [examination] is over.” State v. Davis, 2008 WI 71, ¶23, 310
Wis. 2d 583, 751 N.W.2d 332. Statements will be deemed voluntary if neither
coercion nor other improper police conduct was used to secure the statements. Id.,
¶36.
¶26 With regard to whether Hoover’s statements were part of a discrete
event, Hoover’s trial counsel testified that Hoover “indicated that the mechanical
portions of the [polygraph] device were unhooked,” that “[h]e was separated from
the machine,” and that “[h]e was told … he had failed.” Further, counsel also
testified that he believed Hoover knew the examination was complete, which is a
significant consideration of the discreteness inquiry. See id., ¶23. Hoover argues
that his statements were not part of a discrete event because he was told that he
had failed the examination “immediately after he was disconnected from the
polygraph machine” and that he made his post-polygraph statements in the same
seat as the one used for the examination. Although Hoover has identified some
facts that might be favorable to him in a discreteness analysis, see Vice, 397
Wis. 2d 682, ¶25 (discussing a number of discreteness considerations), he has not
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shown that his trial counsel’s analysis was below an objective standard of
reasonableness, especially given counsel’s belief that Hoover knew the
examination was over before confessing.
¶27 As to whether Hoover’s post-polygraph statements were voluntary,
Hoover’s trial counsel recalled that Hoover felt “pressure” to make statements and
that the FBI agent said Hoover was lying and had failed the polygraph
examination. Counsel could not recall how many times Hoover was told he was
lying during the post-polygraph interview, but counsel said that he ultimately
determined the overall facts were insufficient to show that Hoover’s statements
were involuntary. Hoover argues that he would have been able to show that his
statements were involuntary because the FBI agent “repeatedly” told him that he
had failed the polygraph examination and said that he was required to talk to the
agent.
¶28 Even assuming that Hoover was repeatedly told that he failed the
polygraph examination (the circuit court never made such a finding), Hoover has
again failed to show that his counsel’s analysis was unreasonable. Indeed, the
facts certainly do not amount to egregious police coercion. See id., ¶¶33-34
(discussing examples of potential coercive police conduct, such as questioning an
incapacitated and sedated suspect or questioning a suspect who has been deprived
of sleep and food, subjected to physical violence, or threatened). Hoover was
advised of his right to remain silent and his right to an attorney upon being
brought in for questioning; all of the questioning, including the polygraph
interview, appears to have occurred over several hours during the day; and Hoover
could not identify any external “pressure” other than the FBI agent merely saying
that Hoover “ha[d] to talk to him.”
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¶29 In addition to his belief that a suppression motion would not
succeed, Hoover’s trial counsel also believed that such a motion might undermine
his ability to obtain the best plea offer. Hoover criticizes this concern, arguing that
“the greatest concessions are made when both parties are prepared to fight” and
questioning how a suppression motion could possibly undermine plea
negotiations. In making these arguments, however, Hoover ignores his own
actions that contributed to counsel’s strategy. See Strickland, 466 U.S. at 691(“The reasonableness of counsel’s actions may be determined or substantially
influenced by the defendant’s own statements or actions.”). In particular, counsel
testified that he focused on plea negotiations because Hoover wanted to avoid
trial, which Hoover himself confirmed by testifying that he wanted a plea deal to
reduce the stress on his family. Counsel also testified that he and Hoover
discussed the possibility of filing a suppression motion, but neither counsel nor
Hoover testified that Hoover insisted on filing the motion. Again, the circuit court
found counsel’s testimony more credible. Thus, the facts strongly suggest that
Hoover agreed with counsel’s strategy at the time.
¶30 Finally, Hoover faults his trial counsel for not filing a suppression
motion because his post-polygraph statements were the “sole basis” for the
charges in the second case. He contends that if a suppression motion had been
granted, “the charges in the second case would have to be dismissed.” This
argument is a nonstarter. Hoover’s trial counsel testified that Hoover’s text
messages describing sexual assault could have provided a sufficient basis—“albeit
a thinner one”—for the State to continue its prosecution. Despite this testimony,
Hoover fails to develop any argument that the State would have been unable to
prosecute him based solely on his online statements.
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¶31 In sum, Hoover has not shown that his trial counsel’s decision not to
file a suppression motion was deficient, falling below an objective standard of
reasonableness. Counsel made strategic decisions based upon his informed
understanding of the law and facts and based upon Hoover’s goals in the case.
Accordingly, the circuit court did not erroneously deny Hoover’s plea withdrawal
motion by concluding that his trial counsel had not provided ineffective assistance.
II. Resentencing based upon trial counsel’s failure to object to the State’s
breach of the plea agreement
¶32 “A defendant has a constitutional right to the enforcement of a
negotiated plea agreement.” State v. Campbell, 2011 WI App 18, ¶7, 331 Wis. 2d
91, 794 N.W.2d 276 (2010). If a defendant fails to contemporaneously object to a
sentencing argument that allegedly breaches the plea agreement—like Hoover did
here—the defendant forfeits direct review of the alleged breach and can obtain
relief only through an ineffective assistance of counsel claim. See State v.
Duckett, 2010 WI App 44, ¶6, 324 Wis. 2d 244, 781 N.W.2d 522. In evaluating
such a claim, the threshold inquiry is whether the State materially and
substantially breached the plea agreement. Id. “If a defendant fails to prove that a
material and substantial breach of the plea agreement occurred, counsel’s failure to
object is not ineffective assistance.” Campbell, 331 Wis. 2d 91, ¶8.
¶33 “Not all conduct that deviates from the precise terms of a plea
agreement constitutes a breach that warrants a remedy.” State v. Deilke, 2004 WI
104, ¶13, 274 Wis. 2d 595, 682 N.W.2d 945. A mere technical breach is not
enough to obtain relief; rather, the breach must be material and substantial.
Duckett, 324 Wis. 2d 244, ¶8. Thus, a defendant must establish, by clear and
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convincing evidence, that a breach occurred and that the breach was material and
substantial. Deilke, 274 Wis. 2d 595, ¶13.
¶34 Hoover argues that his trial counsel was ineffective for not objecting
to the State’s sentencing recommendation. In doing so, Hoover concedes that “the
prosecutor did recommend … the period of [extended supervision] recommended
by the [PSI] on the second[-]degree sexual assault charge.” He nevertheless
contends that the prosecutor materially and substantially breached the plea
agreement by stating that the extended supervision on the child pornography count
would be “up to the [c]ourt,” instead of expressly suggesting that the court follow
the PSI’s recommendation.
¶35 The State does not dispute that it breached the plea agreement by not
expressly endorsing the PSI’s recommended period of extended supervision on the
child pornography count. Indeed, our supreme court has previously held that “[a]
prosecutor who does not present the negotiated sentencing recommendation to the
circuit court breaches the plea agreement.” State v. Bokenyi, 2014 WI 61, ¶41,
355 Wis. 2d 28, 848 N.W.2d 759 (alteration in original; citation omitted).
Nonetheless, the State argues that its breach was neither material nor substantial.
¶36 “A material and substantial breach is a violation of the terms of the
agreement that defeats the benefit for which the accused bargained.” State v.
Williams, 2002 WI 1, ¶38, 249 Wis. 2d 492, 637 N.W.2d 733. Although a circuit
court is not bound by the plea agreement, Bokenyi, 355 Wis. 2d 28, ¶39, “it is
irrelevant whether the … court was influenced by the State’s alleged breach or
chose to ignore the State’s recommendation” when determining whether a breach
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is material and substantial,4 State v. Bowers, 2005 WI App 72, ¶8, 280 Wis. 2d
534, 696 N.W.2d 255. “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.’” Bokenyi, 355 Wis. 2d 28, ¶38 (citation omitted).
¶37 Here, the benefits bargained for in Hoover’s plea agreement were the
dismissal of six felony charges, the reduction of a first-degree sexual assault
charge to a second-degree sexual assault charge, a recommendation of no more
than fifteen years’ initial confinement, and a recommendation that “follow[s the]
PSI[’s suggested] … conditions … and length of [extended supervision].” Except
for the State’s extended supervision comment on the child pornography count, the
parties agree that the State fully complied with the plea agreement.
¶38 Although the State did not follow the PSI’s extended supervision
recommendation on the child pornography count, the State did not advocate for
more extended supervision than the amount recommended in the PSI. Nor did the
State express any criticism of the PSI or suggest that the circuit court ignore the
PSI’s recommendations. Rather, the State merely noted that the extended
supervision “would be up to the [c]ourt” on the child pornography count, which, in
4
Hoover argues that the circuit court erred by considering whether the State’s breach
influenced the court’s sentencing decision. We agree that the court’s decision could be
interpreted as suggesting that the breach was not material because the court made “its own”
sentencing decision. The court’s reliance on that fact would therefore be contrary to
well-established case law, which provides that such a fact is irrelevant to determine whether a
breach is material and substantial. See State v. Bowers, 2005 WI App 72, ¶8, 280 Wis. 2d 534,
696 N.W.2d 255. However, the court’s decision could also be interpreted as focusing on the
prejudice prong of Hoover’s ineffective assistance of counsel claim. Regardless, we need not
determine the precise confines of the court’s decision because our standard of review is de novo,
and we may affirm on different grounds than those relied on by the circuit court. See State v.
Earl, 2009 WI App 99, ¶18 n.8, 320 Wis. 2d 639, 770 N.W.2d 755.
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a practical sense, was correct because the court is not bound by the plea
agreement. See id., ¶39.
¶39 Significantly, this is not a case in which the State attempted an
“[e]nd run[]” around the plea agreement or attempted to undercut its promised
sentence recommendation. See Williams, 249 Wis. 2d 492, ¶42 (“The State may
not accomplish by indirect means what it promised not to do directly, and it may
not covertly convey to the [circuit] court that a more severe sentence is warranted
than that recommended.” (citations omitted)). Indeed, nothing in the State’s
sentencing argument can be construed as recommending more extended
supervision than the PSI’s recommendation. To the contrary, the State
recommended concurrent sentences, which implied that the State’s
recommendation for extended supervision on the second-degree sexual assault
count—the more serious offense—would be sufficient. See WIS. STAT.
§§ 948.02(2) (stating that second-degree sexual assault of a child is a Class C
felony), 948.12(3)(a) (stating that possession of child pornography is a Class D
felony).
¶40 Hoover concedes in his reply brief that the State did not explicitly
recommend a greater period of extended supervision than the amount
recommended in the PSI. Nonetheless, he argues that the State’s comment made it
“much more likely” that the circuit court would exceed the PSI’s recommendation.
¶41 We disagree that the State’s conduct meaningfully increased the
likelihood that the circuit court would exceed the PSI’s recommendation for
extended supervision. As we have already discussed, the State did not express
doubt in the PSI’s recommendations, nor did it implicitly recommend more
extended supervision than the amount recommended in the PSI. Although there
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might have been some persuasive value in the State parroting the PSI’s
recommendation, we cannot say that the State’s failure to do so in this case
“defeat[ed] the benefit for which [Hoover] bargained.” See Williams, 249 Wis. 2d
492, ¶38 (emphasis added). Thus, the State’s breach was not material or
substantial.
¶42 Having failed to establish a material and substantial breach of the
plea agreement, Hoover has also failed to establish that his trial counsel was
ineffective for failing to object to the State’s sentence recommendation.
See Campbell, 331 Wis. 2d 91, ¶8. We conclude that counsel did not perform
deficiently under the circumstances by failing to notice and object to the State’s
technical breach of the plea agreement. Accordingly, the circuit court properly
denied Hoover’s request for resentencing.
By the Court.—Judgments and order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
18