COURT OF APPEALS

DECISION

DATED AND FILED

December 28, 2021

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 WIS. STAT. § 808.10 and 

RULE 809.62. 

Appeal Nos. 2020AP1142-CR

2020AP1143-CR

2020AP1144-CR

Cir. Ct. Nos. 2015CF2008

2016CF4778

2016CF5363

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

STEVE DESHUNN YOUNG,

DEFENDANT-APPELLANT.

APPEALS from judgments and an order of the circuit court for 

Milwaukee County: JANET C. PROTASIEWICZ and JONATHAN D. WATTS, 

Judges. Affirmed. 

Before Brash, C.J., Donald, P.J., and White, J.

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 
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¶1 PER CURIAM. Steve Deshunn Young appeals his judgments of 

conviction entered after he pled guilty to charges of operating a vehicle without the 

owner’s consent; second-degree recklessly endangering safety, with a habitual 

criminality enhancer; felony bail jumping, with a habitual criminality enhancer; 

possession with intent to deliver heroin; and possession with intent to deliver 

cocaine. He also appeals the order denying his postconviction motion. 

¶2 In his postconviction motion, Young argued that the prosecutor 

materially and substantially breached the plea agreement with comments made at 

the sentencing hearing, and that his trial counsel was ineffective for failing to object 

to that breach. He therefore requested a Machner1 hearing on this issue, seeking to 

withdraw his pleas or alternatively, to be resentenced. The postconviction court2

rejected his claims without granting a hearing. Upon review, we affirm.

BACKGROUND

¶3 The charges against Young stem from incidents occurring in 2015 and 

2016. There were several other charges filed against Young in these cases, along 

with additional charges in two other cases, all of which were dismissed and read in 

for sentencing under the plea agreement that Young entered into to resolve these 

matters. That plea agreement also included a sentencing recommendation by the 

State of a global sentence of thirteen years of initial confinement, with extended 

supervision to be determined at the discretion of the trial court. 

 

1

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

2

 The Honorable Janet C. Protasiewicz accepted Young’s pleas and imposed sentence; we 

refer to her as the trial court. The Honorable Jonathan D. Watts, as the successor court to Judge 

Protasiewicz’s calendar, rendered the decision on Young’s postconviction motion; we refer to him

as the postconviction court. 
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¶4 At the plea hearing in December 2017, the prosecutor explained that 

the structure of the plea agreement had been designed by her predecessor prosecutor 

on the cases, but that she “think[s] it’s fair.” At the subsequent sentencing hearing, 

held later in December 2017, the prosecutor discussed the victim in the recklessly 

endangering safety charge, N.S. According to the complaint in that case, officers 

from the West Allis Police Department had gone to Young’s residence to arrest him 

on open warrants, but Young fled in a Toyota C4E. N.S. stated that he had to jump

out of the path of the fleeing vehicle, and that if he had not moved “he would have 

been run over potentially risking death or great bodily injury.” At the sentencing 

hearing, the prosecutor noted that she knew N.S. personally, that he was married 

with five children, and that “his world would have been shattered” had he been run 

over by Young as he was fleeing. 

¶5 The prosecutor stated that she had discussed these cases with N.S. as 

well as other officers involved in his arrest and “talked about what we thought was 

fair” in terms of the sentencing recommendation. She then noted that the 

recommendation was for a global sentence of thirteen years of initial confinement, 

which was supported by N.S. However, she also commented “and, you know, 

sometimes you wonder is that enough?” Additionally, she made an observation 

regarding Young’s “pattern of behavior,” which included an attempt to “run over 

law enforcement,” which she said he appeared to have done without hesitation. 

¶6 The prosecutor then discussed Young’s drug addiction problem, 

observing that he had likely committed some of the crimes in these cases “because 

he was using [drugs] and not thinking clearly and making good choices.” She 

expressed the hope that he would engage in drug treatment through the prison 

system, and that when he is released “he’ll be more mature and realize the damage 
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that he’s done to the world and not reengage.” She then stated that “at the end of 

the day ... I think 13 years is fair” for the term of initial confinement, although she 

suggested that Young “clearly needs a hefty amount of extended supervision 

time[.]” Trial counsel did not object to any of the prosecutor’s statements.

¶7 However, the trial court did not follow the State’s recommendation, 

instead sentencing Young to a global sentence of eighteen years of initial 

confinement and eighteen years of extended supervision. 

¶8 Young filed a postconviction motion seeking to withdraw his pleas or, 

in the alternative, resentencing, on the grounds that the prosecutor had materially 

and substantially breached the plea agreement with her comments at the sentencing 

hearing. He also asserted that his trial counsel was ineffective for failing to object 

to the prosecutor’s comments, and requested a Machner hearing.3 

¶9 The postconviction court rejected Young’s claims. The court noted 

that the prosecutor’s comments cannot be viewed in “a vacuum,” and that the 

sentencing transcript demonstrates that the prosecutor explained how she reached 

her sentencing recommendation for the term of initial confinement, based on the 

facts of the crimes committed by Young. The court further noted that the prosecutor 

“repeatedly emphasized” the fairness of the recommendation. Therefore, the court 

found that the prosecutor had not breached the plea agreement and, as a result, trial 

counsel was not ineffective for failing to object to the prosecutor’s comments. 

 

3

 Additionally, Young also raised in his postconviction motion a separate claim of new 

information constituting a new factor for which he was seeking resentencing. Young does not 

renew that argument on appeal, and we therefore do not address it. See State v. Ledger, 175 Wis. 

2d 116, 135, 499 N.W.2d 198 (Ct. App. 1993) (“On appeal, issues raised but not briefed or argued 

are deemed abandoned.”).
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Accordingly, the court denied Young’s postconviction motion without granting a 

Machner hearing. This appeal follows.

DISCUSSION

¶10 On appeal, Young renews his argument that the prosecutor breached 

the plea agreement based on her comments during the sentencing hearing. 

Specifically, Young asserts that the prosecutor’s references to N.S. were an attempt 

to “end-run” around the plea agreement that was structured by her predecessor. 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. 

A plea agreement in which the State agrees to recommend a particular sentence 

“may induce an accused to give up the constitutional right to a jury trial,” and 

therefore that defendant’s due process rights “demand fulfillment of the bargain.” 

Id.

¶11 The State, however, contends that the failure of Young’s trial counsel 

to object to those comments by the prosecutor renders this claim forfeited. 

“[F]orfeiture is the failure to make the timely assertion of a right[.]” State v. Pinno, 

2014 WI 74, ¶56, 356 Wis. 2d 106, 850 N.W.2d 207. This court has previously 

determined that a defendant who fails to object to an alleged breach of the plea 

agreement by the State at the sentencing hearing has “waived his right to directly 

challenge” that alleged breach.4 State v. Bowers, 2005 WI App 72, ¶6, 280 Wis. 2d 

534, 696 N.W.2d 255.

 

4

 Our supreme court has previously recognized that “cases sometimes use the words 

‘forfeiture’ and ‘waiver’ interchangeably,” even though these terms actually “embody very 

different legal concepts.” State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612.
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¶12 Young does not refute this contention, and “[a]rguments not refuted 

are deemed admitted.” State v. Alexander, 2005 WI App 231, ¶15, 287 Wis. 2d 

645, 706 N.W.2d 191. We therefore review Young’s claim in the context of an 

ineffective assistance of counsel claim. See Bowers, 280 Wis. 2d 534, ¶6. 

¶13 First, we note that a defendant seeking to withdraw his or her plea 

after sentencing “must prove, by clear and convincing evidence, that a refusal to 

allow withdrawal of the plea would result in ‘manifest injustice.’” State v. Brown, 

2006 WI 100, ¶18, 293 Wis. 2d 594, 716 N.W.2d 906 (citation omitted). Manifest 

injustice as it relates to plea withdrawal may be demonstrated by proving ineffective 

assistance of counsel. State v. Taylor, 2013 WI 34, ¶49, 347 Wis. 2d 30, 829 

N.W.2d 482. 

¶14 To prove ineffective assistance of counsel, a defendant must show that 

his trial counsel’s performance was deficient and that the deficiency prejudiced the 

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The defendant 

“must prevail on both parts of the test to be afforded relief.” State v. Allen, 2004 

WI 106, ¶26, 274 Wis. 2d 568, 682 N.W.2d 433. We review de novo “‘the legal 

questions of whether deficient performance has been established and whether it led 

to prejudice rising to a level undermining the reliability of the proceeding.’” State v. 

Roberson, 2006 WI 80, ¶24, 292 Wis. 2d 280, 717 N.W.2d 111 (citation omitted). 

However, “[a] court need not address both components of this inquiry if the 

defendant does not make a sufficient showing on one.” State v. Smith, 2003 WI 

App 234, ¶15, 268 Wis. 2d 138, 671 N.W.2d 854. 

¶15 A claim of ineffective assistance of counsel requires that a 

postconviction evidentiary hearing be held “to preserve the testimony of trial 

counsel.” State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979). 
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However, a defendant is not automatically entitled to an evidentiary hearing relating 

to his or her postconviction motion. State v. Bentley, 201 Wis. 2d 303, 309-10, 548 

N.W.2d 50 (1996). Rather, the trial court is required to hold an evidentiary hearing 

only if the defendant has alleged “sufficient material facts that, if true, would entitle 

the defendant to relief.” Allen, 274 Wis. 2d 568, ¶14. This is a question of law that 

we review de novo. Id., ¶9.

¶16 If, on the other hand, the postconviction motion “does not raise facts 

sufficient to entitle the movant to relief, or presents only conclusory allegations, or 

if the record conclusively demonstrates that the defendant is not entitled to relief,”

the trial court, in its discretion, may either grant or deny a hearing. Id. We will 

uphold such a discretionary decision if the trial court “has examined the relevant 

facts, applied the proper legal standards, and engaged in a rational decision-making 

process.” Bentley, 201 Wis. 2d at 318. 

¶17 This analysis returns us to the question of whether the prosecutor 

breached the plea agreement, to determine whether Young’s trial counsel’s failure 

to object to the prosecutor’s comments may constitute ineffective assistance of 

counsel. See State v. Howard, 2001 WI App 137, ¶21, 246 Wis. 2d 475, 630 

N.W.2d 244. Even with the constitutional right to the enforcement of a plea 

agreement, “not all conduct that deviates from the precise terms of a plea agreement 

constitutes a breach entitling the defendant to relief.” State v. Campbell, 2011 WI 

App 18, ¶7, 331 Wis. 2d 91, 794 N.W.2d 276. An actionable breach of a plea 

agreement is not “merely a technical breach;” rather, “it must be a material and 

substantial breach.” Williams, 249 Wis. 2d 492, ¶38. “A material and substantial 

breach is a violation of the terms of the agreement that defeats the benefit for which 

the accused bargained.” Id.
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¶18 “We must examine the entire sentencing proceeding to evaluate the 

prosecutor’s remarks.” Id., ¶46. In our review of the transcript from the sentencing 

hearing, we observed that the prosecutor discussed the details of the crimes 

committed by Young, particularly relating to the charge that involved N.S. 

However, when making a sentencing argument where a plea agreement is in place, 

“nothing prevents prosecutors from supplying information that supports a harsher 

sentence than the one recommended by the prosecutor.” State v. Liukonen, 2004 

WI App 157, ¶10, 276 Wis. 2d 64, 686 N.W.2d 689. 

¶19 Furthermore, the prosecutor also noted that the sentence 

recommendation had the support of N.S. Additionally, she discussed other factors 

involved in her consideration of the sentence recommendation, such as Young’s 

drug problem, which likely contributed to his commission of these crimes. She 

inferred this was a mitigating factor, such that the “decades on decades” of prison 

exposure Young would have faced had he not entered into the plea agreement was 

perhaps not warranted. 

¶20 In short, we conclude that the full context of the prosecutor’s 

comments indicate support of the thirteen-year sentence recommendation under the 

plea agreement, as opposed to an attempt to “defeat[] the benefit” of the sentence 

recommendation Young bargained for in the plea agreement. See Williams, 249 

Wis. 2d 492, ¶38. Therefore, we conclude that there was no material and substantial 

breach of the plea agreement by the prosecutor. See id. 

¶21 Furthermore, given that there was no breach of the plea agreement,

Young’s trial counsel was not ineffective for failing to object to the prosecutor’s 
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comments.5 See State v. Sprang, 2004 WI App 121, ¶13, 274 Wis. 2d 784, 683 

N.W.2d 522. As a result, Young’s ineffective assistance claim necessarily fails, see

Smith, 268 Wis. 2d 138, ¶15, and thus the postconviction court did not err in not 

granting a hearing on Young’s motion, see Allen, 274 Wis. 2d 568, ¶9. 

¶22 Accordingly, we affirm Young’s judgments of conviction and the 

order denying his postconviction motion. 

By the Court.—Judgments and order affirmed. 

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5. (2019-20).

 

5

 Young also argues that he may be entitled to resentencing, relying on State v. Liukonen, 

2004 WI App 157, 276 Wis. 2d 64, 686 N.W.2d 689. In Liukonen, trial counsel for the defendant 

failed to object to the prosecutor’s comments during sentencing, so this court reviewed the breach 

of plea agreement claim in the context of an ineffective assistance of counsel claim. Id., ¶6. We 

concluded that there was a material and substantial breach of the plea agreement by the prosecutor, 

and that prejudice can be presumed if the defendant establishes that counsel’s performance was 

deficient; that is, that counsel did not have a strategic reason for not objecting to the prosecutor’s 

comments. Id., ¶¶17-20. We then indicated that even if counsel “had a sufficient strategic reason 

for failing to object to the breach and, thus, did not perform deficiently, [the defendant] may 

nonetheless be entitled to resentencing if his counsel did not consult with him about foregoing an 

objection.” Id., ¶20. Given our conclusion that there was no breach by the prosecutor, Young’s 

request for resentencing is rejected.