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 App. 2013 – Unpublished)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,

 v.

William F. Bokenyi,

 Defendant-Appellant.

FILED

JUL 11, 2014

Diane M. Fremgen

Clerk of Supreme Court

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unpublished decision of the court of appeals, State v. Bokenyi, 

No. 2012AP2557-CR, unpublished slip op.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 

2

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 
No. 2012AP2557-CR 

3

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

upset and threatened to kill both Sherri and the couple's tenyear-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 backup, 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 
No. 2012AP2557-CR 

4

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.
No. 2012AP2557-CR 

5

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."
No. 2012AP2557-CR 

6

¶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. 
No. 2012AP2557-CR 

7

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 
No. 2012AP2557-CR 

8

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 
No. 2012AP2557-CR 

9

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.
No. 2012AP2557-CR 

10

¶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 
No. 2012AP2557-CR 

11

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 
No. 2012AP2557-CR 

12

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 
No. 2012AP2557-CR 

13

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.
No. 2012AP2557-CR 

14

¶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. 
No. 2012AP2557-CR 

15

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 
No. 2012AP2557-CR 

16

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 
No. 2012AP2557-CR 

17

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 
No. 2012AP2557-CR 

18

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 
No. 2012AP2557-CR 

19

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 
No. 2012AP2557-CR 

20

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.
No. 2012AP2557-CR 

21

¶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).
No. 2012AP2557-CR 

22

¶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 
No. 2012AP2557-CR 

23

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 
No. 2012AP2557-CR 

24

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 
No. 2012AP2557-CR 

25

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).
No. 2012AP2557-CR 

26

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.
No. 2012AP2557-CR 

27

¶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.
No. 2012AP2557-CR 

28

¶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 sixmonth 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 
No. 2012AP2557-CR 

29

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 
No. 2012AP2557-CR 

30

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.
No. 2012AP2557-CR.ssa

1

¶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. 
No. 2012AP2557-CR.ssa

2

¶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.
No. 2012AP2557-CR.ssa

3

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.
No. 2012AP2557-CR.ssa

4

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.
No. 2012AP2557-CR.ssa

5

¶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)).
No. 2012AP2557-CR.dtp

1

¶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).
No. 2012AP2557-CR.dtp

2

for purposes of sentencing. Bokenyi also had a prior conviction 

for first-degree recklessly endangering safety as well as a nonviolent 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 
No. 2012AP2557-CR.dtp

3

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 
No. 2012AP2557-CR.dtp

4

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).
No. 2012AP2557-CR.dtp

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¶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:
No. 2012AP2557-CR.dtp

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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 
No. 2012AP2557-CR.dtp

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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.
No. 2012AP2557-CR.dtp

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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?
No. 2012AP2557-CR.dtp

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¶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 
No. 2012AP2557-CR.dtp

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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.)
No. 2012AP2557-CR.dtp

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¶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 
No. 2012AP2557-CR.dtp

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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.
No. 2012AP2557-CR.dtp

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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.
No. 2012AP2557-CR.dtp

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¶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 
No. 2012AP2557-CR.dtp

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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 
No. 2012AP2557-CR.dtp

16

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.
No. 2012AP2557-CR.dtp

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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 
No. 2012AP2557-CR.dtp

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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.
No. 2012AP2557-CR.dtp

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