Background
Lemar C. Newell, Jr. pleaded guilty to first-degree reckless homicide arising from a gas-station shooting that killed a customer. At the plea hearing, the State clarified that a second count of first-degree recklessly endangering safety would be dismissed outright—not dismissed and read in for sentencing. The circuit court accepted that clarification as part of the operative plea agreement.
At sentencing, however, the State agreed with the court that the second count was dismissed and read in, and defense counsel did not object. The court sentenced Newell to 28 years of initial confinement and 12 years of extended supervision. A postconviction court denied Newell’s resentencing motion without a hearing, concluding that any breach was not material and substantial.
The Court’s Holding
The Wisconsin Court of Appeals held that the State materially and substantially breached the plea agreement. A read-in charge carries more weight at sentencing than a charge dismissed outright: it is expected to be considered and may increase the sentence within the available range. By treating the second count as read in, the State exposed Newell to a greater likelihood of punishment than he had bargained for. Unlike a promptly corrected misstatement, the State’s error was never acknowledged or corrected during sentencing.
The court also held that defense counsel rendered ineffective assistance by failing to object. Counsel knew the agreement’s terms from the plea hearing and required no additional investigation to recognize the breach. Under controlling Wisconsin Supreme Court precedent, prejudice is presumed when counsel fails to object to a material and substantial plea-agreement breach. The court concluded that the U.S. Supreme Court’s federal plain-error decision in Puckett v. United States did not directly conflict with that rule. It therefore reversed the postconviction order and remanded for resentencing before a different judge under the plea agreement’s actual terms.
Key Takeaways
- Characterizing a charge as dismissed and read in rather than dismissed outright can materially alter a plea agreement because read-in charges carry greater weight at sentencing.
- An inadvertent prosecutorial misstatement may still constitute a material and substantial breach when it is not promptly corrected and taints the sentencing proceeding.
- Under Wisconsin precedent, prejudice is presumed when defense counsel deficiently fails to object to a material and substantial breach of a plea agreement.
Why It Matters
The decision emphasizes that prosecutors, defense counsel, and sentencing courts must accurately identify whether dismissed charges are read in. Although both read-in and outright-dismissed charges may be considered at sentencing, they do not have equivalent legal significance.
The opinion also preserves Wisconsin’s presumption of prejudice for ineffective-assistance claims arising from material plea-agreement breaches, distinguishing federal plain-error review from Wisconsin’s procedure for reviewing counsel’s failure to object.