State v. William F. Bokenyi, 848 N.W.2d 759

Bokenyi pled guilty to three counts under a plea agreement that Dismissed and Read-in other counts for sentencing and set the State’s recommendation at the high end of the PSI.
The PSI recommended 3–4 years initial confinement for the principal count, with other counts read in for sentencing terms of probation or concurrent terms.
At sentencing, the State read a victim letter and argued within Gallion/McCleary factors; it endorsed an overall sentence within the high end of the PSI.
Bokenyi’s counsel argued for a mitigated sentence, including mental-health treatment, and suggested a shorter confinement period.
The circuit court imposed longer, concurrent prison terms than the State recommended, and denied postconviction relief asserting no material breach.
The court of appeals reversed, concluding the prosecutor’s remarks constituted a material and substantial breach and that counsel was ineffective for not objecting; this Court granted review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether prosecutor's comments breached the plea agreement	Bokenyi argues material and substantial breach occurred	State contends no breach; remarks fall within permissible sentencing discussion	No material and substantial breach; majority reverses Court of Appeals
Whether specific comments about felony classifications breached the plea	Classification discussion covertly suggested the plea was insufficient	Discussion of seriousness of offenses is permissible to overcome probation presumption	Not a breach; argument properly linked to seriousness and overcomes probation presumption
Whether references to the victim's letter breached the plea	Victim letter was read and referenced in a way that supported a harsher result	Victim rights require consideration and may be read without breaching the plea	Not a material breach; references aligned with victim rights and did not undermine the plea
Whether the jail incident report reference breached the plea	Editorializing the jail incident unduly suggested more punishment was warranted	Jail incident was relevant to public protection and sentencing factors	Not a material breach; within permissible consideration of sentencing factors
Whether counsel was ineffective for failing to object	Ineffective assistance under Sprang due to failure to object to breaches	No ineffective assistance; no material breach, thus no objecting duty	Majority concludes no breach so Sprang not retroactively triggered

Santobello v. New York, 404 U.S. 257 (Supreme Court (1971)) (plea agreements must be fulfilled; breach requires remedy)
State v. Williams, 249 Wis. 2d 492, 637 N.W.2d 733 (Wis. 2002) (balancing duty to convey information with honoring plea; end runs prohibited)
State v. Deilke, 274 Wis. 2d 595, 682 N.W.2d 945 (Wis. 2004) (material and substantial breach defined; breach defeats non-breaching party)
State v. Ferguson, 166 Wis. 2d 317, 479 N.W.2d 241 (Wis. Ct. App. 1991) (prosecutor cannot convey that sentence is insufficient; cautionary examples)
State v. Liukonen, 276 Wis. 2d 64, 686 N.W.2d 689 (Wis. Ct. App. 2004) (breach where prosecutor implied plea was too lenient)
State v. Gallion, 270 Wis. 2d 535, 678 N.W.2d 197 (Wis. 2004) (probation presumption; court must justify confinement when seeking high end range)
State v. Naydihor, 2004 WI 43, 270 Wis. 2d 585, 678 N.W.2d 220 (Wis. 2004) (victim impact and sentencing factors; commentary may be relevant)
State v. McQuay, 154 Wis. 2d 116, 452 N.W.2d 377 (Wis. 1990) (sentencing discretion not bound by plea terms)