### COURT OF APPEALS DECISION DATED AND FILED August 26 , 2020

Sheila T. Reiff Clerk of Court of Appeals NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2018AP2427

- CR Cir. Ct. No. 2016CF 250 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT II

S TATE OF W ISCONSIN ,
P LAINTIFF - R ESPONDENT ,

V .
D ARNELL H ARPER , J R .,
D EFENDANT - A PPELLANT .

APPEAL from a judgment and an order of the circuit court for
Ozaukee County: PAUL V. MALLOY , Judge. Affirmed

.

Before Neubauer, C.J., Gundrum and Davis, 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 W IS . S TAT . R ULE 809.23(3).No. 2018AP2427

- CR

2 ¶ 1 PER CURIAM. Darnell Harper, Jr., appeals from a judgment convicting h im upon his guilty pleas of fleeing/eluding an officer and second

degree recklessly endangering safety, both as a repeater. He also appeals from the order denying his postconviction motion to withdraw those pleas based on his
claim that defense counsel di d not ensure that he fully understood his available options before pleading. His arguments do not persuade us; we therefore affirm.

¶ 2 Police stopped a vehicle operated by Harper ’s sister for a suspended registration. Harper was a passenger

. While the sister was being processed
outside the car , Harper took the wheel and drove off at up to ninety

- five mph on a state highway and I

- 43

. Ignoring the pursuing officer ’ s emergency lights and
siren s , Harper veered lane to lane and onto t he road s’ shoulder s

. The o fficer
abandoned the chase when he deem ed the pursuit too dangerous. Harper was charged with attempting to flee a traffic officer, obstruction, bail jumping, and
first

- degree recklessly endangering safety

. ¶ 3 T he State initially offered to dismiss the obstruction and bail

jumping charges and to recommend eight and one

- half years ’ initial confinement (IC) plus three and one

- half years’ extended supervision (ES) if Harper would plead guilty to attempted flight and recklessly endangering safety

. Unhappy with his prison exposure, Harper chose to proceed to trial.

¶ 4 After further negotiations, t he State presented a second offer comprising Op tion 1 and Option 2 . Under both, Harper would plead guilt y to fleeing as a repeater , the obstruction and bail

- jumping charges would be dismiss ed
and read in , and the State would recommend a total of seven years’ IC plus two years’ ES. But u nder O ption 1 , Harper would plead guilty to first

- degree recklessly enda ngering safety , the State would request a presentence investigationNo. 2018AP2427

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3 (PSI) report , and he would be free to argue sentenc ing

. Under O ption 2 , he would plead guilty to second

- degree recklessly endangering safety , no PSI would be requested, and he and the State jointly would recommend seven years’ IC followed by two years’ ES . Harper chose Option 2

. A PSI was not ordered. T h e
court sentenced him in accordance with the parties’ joint recommendation

. ¶ 5 Harper moved for po stconviction relief on grounds that his plea w as not knowing and voluntary due to ineffective assistance of counsel . He contended
he had not fully understood his choices because (1) had counsel better explained that a PSI might have presented a more favor able sentencing recommendation , he would have taken Option 1 and (2) he did not understand that he could not argue for a sentence below the joint recommendation in Option 2

. ¶ 6 The court granted Harper a Mach n er 1 hearing . D efense Attorney
Matt Last testified that Harper rejected the State’s initial plea offer of twelve years’ imprisonment because Harper wanted the fewest n umber of charges. Last
said he did not re call specifically what he told Harper with regard to a PSI but that
h e typically explains to clients that a PSI involves meeting with a Department of Corrections (DOC) agent who gathers broad background information, after which the agent usually makes a sentence recomme ndation. When Harper showed Last a DOC “PSI confinemen t grid,” Last conceded he had not explained how the agent arrives at a sentencing recommendation and, in fact, was un aware of a specific DOC sentencing tool at the time he represented Harper.

1 See State vs. Machner , 92 Wis. 2d 797 , 285 N.W.2d 905 (Ct. App. 1979)

.No. 2018AP2427

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4 ¶ 7 Harper also testified

. He told the court that pleading to second

degree reckless

- endangerment always was important and that , while Last generally explained a PSI to him , he did not fully understand that it might include a

sentenc ing recommendation below the parties ’ joint agree ment

. He also told the
court that while he thought accepting Option 2 likely would re sult in seven years’ IC, he also thought he still could a rgue for a less er sentence.
¶ 8 The court noted it could not recall ever having seen the PSI sentencing grid

. It also observed that, while a PSI can assist a defendant, it also carries the risk of revealing detrimental information . The court thus concluded
that Last ’s unfamiliarity with the PSI grid was n ot deficient nor prejudicial , as Last
achieve d Harper’s expre ss goals of a lesser charge and a reduced sentence. Finding the fail ure to prove a manifest injustice requir ing plea withdrawal, the

court denied Harper’s postconviction motion. H e appeals.

¶ 9 A defendant who seeks to withdraw a guilty plea after sentencing must prove by clear and convincing evidence that a refusal to allow withdraw al of the plea would result in a “ manifest injustice. ” State v. Brown , 2006 WI 100, ¶1 8, 293 Wis. 2d 594, 716 N.W.2d 906. Ineffective assistance of counsel is an example of a manifest injustice

. See State v. Bentley , 201 Wis. 2d 303, 311, 548 N.W.2d 50 (1996). To prove ineffective assistance of counsel, a defendant must
prove both deficient performance and resulting prejudice. Strickland v. Washington , 466 U.S. 668, 687 (1984). “ To prove constitutional deficiency, the
defend ant must establish that counsel’ s conduct falls below an object ive standard of reasonableness.” State v. Love , 2005 WI 116, ¶30, 2 84 Wis. 2d 111, 700 N.W.2d 62. “ To prove constitution al prejudice, the defendant must show that there is a reasonable pr obability that, but for counsel’ s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is aNo. 2018AP2427

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5 probability sufficient to undermine conf idenc e in the outcome.” Id. (citations omitted).

¶ 10 Last testified that, while not then familiar with DOC processes or tools used in making its recommendations, his usual practice when advising clients about PSIs is to explain that a DOC agent will review their background, generate a report, and make a nonbinding sentencing recommendation

. Last also testified that he discussed the two options with Harper, and that discussion is reflected in contemporaneous notes referenced in the course o f his Machner testimony.
H arper testified that Last advised him generally about the PSI process but did not
advise him that Option 1 afforded him a chance that a PSI could have made a
lesser recommendation , which the court might have accepted , as opposed to Option 2, under which he stood virtually no chance of a shorter sentence because

court s generally adopt parties’ joint sentence recommendation s

. ¶ 11 Harper has not shown either deficient performance regarding counsel’s unfamiliarity w ith the DOC sentencing tool or prejudice from not having DOC’s sentencing process es explained to him. In fact, Harper got the reduced charge and lesser sentence he sought

— the issue is whether any failure by Harper’ s counsel to explain the options he was g iven rose to the level of deficient performance and, if so, whether Harper suffered prejudice as a result. Our review
of the record indicates neither deficiency nor prejudice

. Harper has not
demonstrated that the trial court erred in finding , following a fully developed
record that included a Machner hearing, that his counsel sufficiently advise d him of his options

. Nor has he demonstrated that the choice he made was prejudicial , as opposed to being based on unsupported speculation as to wha t might have occurred had he chosen Option 1. Simply put, that Harper may have had “buyer’s remorse” over his choice is not grounds for relief. D isappointment in one’sNo. 2018AP2427

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6 eventual punishment is no ground for plea withdrawal

. State v. Booth , 142
Wis. 2d 232 , 237, 418 N.W.2d 20 (Ct. App. 1987).

¶ 12 On a final note , Harper contends the PSI agent “likely” would have recommended a lesser sentence. Perhaps so. But it is also possible that the recommendation could have been for a greater sentence

. I n any event,

“ recommendations in a PSI are not binding on the court. ” State v. Greve , 2004 WI 69, ¶10, 272 Wis. 2d 444, 681 N.W.2d 479. The sentencing court must consider

“ the gravity of the offense, the character of the defendant, and the need to protect the public.” State v. Ziegler , 2006 WI App 49, ¶23, 289 Wis. 2d 594, 712 N.W.2d
76. S entencing is left to the discretion of the trial court and appellate review is limited to determining whether there was an erroneous exercise of disc retion. State v. Gallion , 2004 WI 42, ¶ 17, 270 Wis. 2d 535, 678 N.W.2d 197. When a proper exercise of discretion has been demonstrated, the sentencing court is presumed to have acted reasonably. Id. , ¶ 18.

¶ 13 The sentencing court here recognized Harper’s fairly minor prior

court record . Still, it observed that the imposed sentence was the best way to protect the public from the “outrageously dangerous” conduct Harper chose

. Noting that the community should not have to be confronted with such ill

- thought

out dangerous behavior, the court declined to order a lesser sentence

. Postconviction, t he same court echoed its sentencing rationale, commenting on the “exceptionally high” probability that Harper’s high

- speed flight easily could ha ve killed or seriously maimed another

. See State v. Fuerst , 181 Wis. 2d 903, 915, 512 N.W.2d 243 (Ct. App. 1994) (postconv iction court has additional opportunity to explain sentencing rationale )

.

By the Court.

— Judgment and order affirmed.No. 2018AP2427

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7 This opinion will not be published. See W IS

. S TAT

. R ULE 809.23(1)(b)5.