As unfortunate as the decision is for Bowers, whose plea agreement was plainly breached by the State in this case, defendants in future cases may nevertheless be able to avoid the same result, even when identical facts are present.
Both the dissent and majority opinion supply authority for doing so. Footnote 5 of Judge Brown’s dissent states: "The clear import of the Supreme Court’s language was to unequivocally reject the notion that all terms not expressly articulated are also unnegotiated. I do not see how the majority can say the defendant has not negotiated a term as basic as, ‘when do I get out of prison,’ when the parties have agreed on the specific sentence to be recommended."
Wholly absent from either opinion in this case is any factfinding regarding the actual negotiations that took place between the prosecutor and the defense attorney.
There are only two options as to what happened: (1) the consecutive/concurrent issue was the subject of actual negotiations, and it was agreed that the State would not recommend either; or (2) the subject was never discussed.
The majority assumes the latter scenario is true, notwithstanding the absence of any evidence in the record; the dissent recognizes the possibility (and far greater likelihood) of the former scenario.
When faced with similar facts, counsel at a Machner hearing must establish on the record that the prosecutor and defense attorney did negotiate over whether the recommendation should be consecutive or concurrent, but were unable to reach an agreement, and decided to leave it up to the court without any recommendation one way or the other.
The majority explicitly stated the issue in this case as follows "whether the State breaches a plea agreement when the plea agreement and parties negotiations do not consider the issue of concurrent or consecutive sentences and the State proceeds to recommend consecutive sentences to the sentencing court (emphasis added)."
Later, it phrased the issue: "whether the State actually breaches a plea agreement when it makes no commitment in the plea agreement or during the negotiations process either to recommend concurrent sentences or to remain silent on the question (emphasis added)."
Assuming that even minimal negotiations occurred between two competent attorneys, it is unfathomable that those negotiations will not address whether the recommendation will be for a concurrent or consecutive sentence, and the extent of the negotiations can be made part of the record.
Thus, the case at bar would be distinguishable, given the specificity of the issue as framed.
The other possible scenario is that there really were no negotiations on the subject, at all, as the majority assumes in the case at bar. In this unlikely instance, the defendant can still make an ineffective assistance of counsel claim, although with a variation from the one made here.
Instead of arguing that the trial attorney was ineffective for failing to object to the prosecutor’s breach, the defendant must argue that he was ineffective in failing to negotiate for either a concurrent recommendation, or the prosecutor’s silence on the issue.
The elements of an ineffective assistance claim are deficient performance, and prejudice.
Before this case was decided, it arguably was not deficient performance for a defense attorney to fail to negotiate over whether a recommendation would be consecutive or concurrent.
The agreement in the case at bar would be assumed to require the prosecutor’s silence on the issue. In some cases, a defense attorney’s decision to ignore the issue entirely could be deemed a wise strategic tactic.
In the wake of the holding in this case, however silence on the issue gives the State a free hand, while securing absolutely nothing for the defendant in return it is now deficient performance for a defense attorney to fail to even try to negotiate on the issue of concurrent or consecutive sentences.
When a defendant is already serving a term in another case, the concurrent/consecutive issue is frequently far more important than the actual length of the recommendation.
Suppose a defendant is currently serving a five-year sentence, and the maximum in the pending case is two years. The nominal length of the sentence is not the defendant’s main concern; getting a concurrent sentence is the top priority.
In light of the holding in this case, for an attorney not to bargain over the issue is not merely be ineffective assistance; it is nothing short of nonfeasance.
The problem defendants will face in such cases is not proving deficient performance which is self-evident but prejudice. Where a prosecutor breaches a plea agreement, the defendant need not prove prejudice.
When the defendant’s claim is not breach which is foreclosed by this case but ineffective assistance, the defendant will have to demonstrate that, had the
attorney competently negotiated the plea agreement, the sentence would have been different. This may not be an impossible burden, but it will be difficult, and most defendants will fail to meet it.
– David Ziemer
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David Ziemer can be reached by email.