Plea & Sentencing – Ineffective Assistance of Counsel

Listen to this article

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Desmond Myers LaPean

Case No.: 2019AP1448-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Plea & Sentencing – Ineffective Assistance of Counsel

Desmond LaPean appeals a judgment convicting him of repeated sexual assault of a child and an order denying his postconviction motion for resentencing. LaPean argues the State materially and substantially breached the plea agreement during his sentencing hearing by twice recommending a sentence that exceeded the recommendation it had agreed to make. LaPean further argues that his trial attorney was constitutionally ineffective by failing to object to the State’s second breach of the plea agreement and by failing to inform LaPean that one of the available remedies for the State’s breaches was resentencing before a different judge.

We agree with LaPean that the State materially and substantially breached the plea agreement. As such, LaPean’s trial attorney performed deficiently by failing to object to the State’s second breach and by failing to inform LaPean that resentencing was an available remedy. We further conclude LaPean has demonstrated that he was prejudiced by his trial attorney’s deficient performance in failing to inform him that he could seek resentencing by a different judge as a remedy for the State’s material and substantial breaches of the plea agreement. Accordingly, we reverse LaPean’s judgment of conviction and the order denying postconviction relief, and we remand for LaPean to be resentenced by a different judge.

Full Text

Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.