State v. Sean C. Jordan

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 17, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP2162-CR Cir. Ct. No. 2018CF1111

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

SEAN C. JORDAN,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Racine County: WYNNE P. LAUFENBERG, Judge. Affirmed.

Before Gundrum, Grogan, and Lazar, JJ.

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).
No. 2024AP2162-CR

¶1 PER CURIAM. Sean C. Jordan appeals from a judgment of the
circuit court and an order denying his motion for postconviction relief. He claims
the State breached the plea agreement by the comments it made at his resentencing
hearing, his counsel performed ineffectively by failing to object to the comments,
and the court erred in failing to grant his postconviction motion related to these
claims. For the following reasons, we affirm.

Background

¶2 In July 2020, Jordan pled no contest to “the amended charge of
first[-]degree sexual assault of a child, intercourse under age 13.” The parties
agreed that upon Jordan’s plea to this charge, “the State [would recommend] 10 to
12 years initial confinement plus [extended supervision] to the [circuit c]ourt.”
The State made this precise recommendation at the December 2020 sentencing
hearing. The court imposed a sentence of 30 years initial confinement (IC)
followed by 7 years of extended supervision (ES).

¶3 In July 2021, the Department of Corrections notified the circuit court
and the parties that the sentence was in error because it did “not meet the statutory
requirements pursuant to WIS. STAT. § 973.01(2)(d) [(2023-24)1], which states,
‘The term of extended supervision may not be less than 25% of the length of the
term of confinement in prison imposed ....’” Jordan moved for resentencing on
this basis in January 2023, “because the term of extended supervision of 7 years
was less than 25% of the term of initial confinement of 30 years.”

1
All references to the Wisconsin Statutes are to the 2023-24 version.

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No. 2024AP2162-CR

¶4 The circuit court held a new sentencing hearing at which it
recognized that “[t]his matter is back due to a procedural error by this [c]ourt with
respect to the length of extended supervision and overall sentence.” The court
noted that it had vacated Jordan’s sentence months earlier in conjunction with
setting the matter for a new sentencing. As the lion’s share of the State’s
arguments, the prosecutor stated:

This [c]ourt on December 21, 2020[,] originally sentenced
Mr. Jordan and I believe that the argument made by ADA
Van Schyndel at that time was appropriate and on point. I
also believe that the sentence that was imposed minus the
mathematical error in the calculation on the extended
supervision was appropriate for all the reasons set forth in
the record. I would ask the [c]ourt to adopt those and
impose the same sentence, except for the extended
supervision and modify that to 7.5 years, seven years six
months, which would then bring it within the [bare]
minimum 25 percent of the incarceration. So the ES would
be statutorily valid and … with that, Your Honor, I think
the [c]ourt addressed the gravity of the [offense], the
character of the defendant, the need to protect the public,
and rehabilitative needs and the necessity for them to be in
a corrective setting at the prior hearing. And I would just
ask the [c]ourt to adopt those.

(Emphases added.)

¶5 Jordan’s sister spoke next and was then followed by Jordan’s
counsel. Following their comments, the court resentenced Jordan to 30 years of
IC and 7.5 years of ES. At no time during the resentencing hearing did Jordan
object to the State’s sentencing comments on the basis that they constituted a
breach of the plea agreement, or on any other basis.

¶6 In July 2024, Jordan again moved for postconviction relief, this time
on the basis that the State breached its plea agreement by not recommending at the
resentencing hearing “10 to 12 years of initial confinement” plus ES but instead
recommending “the same sentence [the court imposed at the original sentencing],

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No. 2024AP2162-CR

except for the extended supervision and modify that to 7.5 years.” He also
asserted that his resentencing counsel provided him ineffective assistance by
failing to object on this basis to the State’s resentencing arguments. The circuit
court denied Jordan’s motion without a hearing, and Jordan appeals.

Discussion

¶7 To receive relief based on a claim that the State breached a plea
agreement, a defendant must show by clear and convincing evidence that the
alleged breach was both material and substantial. State v. Deilke, 2004 WI 104,
¶13, 274 Wis. 2d 595, 682 N.W.2d 945. “A breach is material and substantial if it
‘violates the terms of the agreement and deprives the defendant of a material and
substantial benefit for which he or she bargained.’” State v. Campbell, 2011 WI
App 18, ¶7, 331 Wis. 2d 91, 794 N.W.2d 276 (2010) (citation omitted).

¶8 When a defendant fails to object to the State’s alleged breach, as
Jordan failed to do, the defendant forfeits “his right to directly challenge [it],” and
his challenge generally must instead be reviewed “in the context of an ineffective
assistance of counsel claim.” State v. Bowers, 2005 WI App 72, ¶6, 280 Wis. 2d
534, 696 N.W.2d 255. To succeed on a claim of ineffective assistance of counsel,
a defendant must show counsel’s performance was deficient and the deficiency
prejudiced him. State v. Erickson, 227 Wis. 2d 758, 768, 596 N.W.2d 749 (1999).
If the defendant fails to prove either prong, we need not address the other.
Strickland v. Washington, 466 U.S. 668, 697 (1984).

¶9 To prove deficient performance, the prong relevant to this appeal, a
defendant must show that counsel’s acts or omissions were “outside the wide
range of professionally competent assistance,” see id. at 690, and were “errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant

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No. 2024AP2162-CR

by the Sixth Amendment,” see State v. Maloney, 2005 WI 74, ¶24, 281 Wis. 2d
595, 698 N.W.2d 583 (citation omitted). Whether counsel’s performance was
deficient is a question of law we determine independently of the circuit court.
State v. Sanders, 2017 WI App 22, ¶10, 375 Wis. 2d 248, 895 N.W.2d 41.

¶10 At the July 2020 plea hearing, the State agreed to recommend at
sentencing “10 to 12 years initial confinement” plus ES. It is undisputed that the
State recommended precisely that at Jordan’s original sentencing in December
2020. Jordan’s complaint is that the State did not make this same recommendation
when he was resentenced three and one-half years after the original sentencing;
instead, the prosecutor stated that the circuit court’s originally imposed IC term of
30 years “was appropriate” and asked the court to “impose the same sentence.”
Jordan asserts that “the State was obligated to recommend the agreed-to 10 to 12
years of initial confinement.”

¶11 We certainly agree that if the State had recommended 30 years of IC
at the original sentencing hearing, it would have been in breach of its promise to
recommend “10 to 12 years of initial confinement.” But, at the original hearing,
the State provided Jordan precisely what was bargained for.

¶12 Where Jordan falters is that while he insists the State was
“obligated” to also make that same “10 to 12 years” recommendation at his
subsequent sentencing years later, his assertion is conclusory as he fails to direct
us to any clear law supporting this position. Indeed, the most on-point case we
have been able to find in Wisconsin, State v. Windom, 169 Wis. 2d 341, 485
N.W.2d 832 (Ct. App. 1992), strongly suggests that the State did not breach the

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No. 2024AP2162-CR

plea agreement by failing to recommend “10 to 12 years” at the second sentencing
hearing.2 Regardless, it is settled law that where the law and facts do not clearly
provide that the State materially and substantially breached the agreement, counsel
will not be deemed to have performed deficiently in failing to object. See
Sanders, 375 Wis. 2d 248, ¶16 (concluding “counsel does not perform deficiently
in failing to ‘object and argue a point of law’ that is ‘unclear.’” (quoting State v.
Morales-Pedrosa, 2016 WI App 38, ¶16, 369 Wis. 2d 75, 879 N.W.2d 772
(citation omitted)). That is the case here.

2
In State v. Windom, 169 Wis. 2d 341, 345, 485 N.W.2d 832 (Ct. App. 1992), the State
agreed that if Windom pled to a burglary charge, the State “will be making no specific
recommendation but leaving [sic] sentencing up to the court.” (Alteration in original.) The State
upheld its part of the deal “by remaining silent,” and the circuit court withheld sentence and
placed Windom on probation. Id. at 344. When Windom’s probation was revoked months later,
due in part to an armed robbery, Windom “reappeared before the circuit court for resentencing on
the burglary charge.” Id. at 345. The State then recommended, as we phrased it, “that any
sentence ordered by the court on the burglary conviction should be consecutive to the sentence
imposed for the armed robbery offense.” Id.

We determined on appeal that

the scope of the plea agreement was limited to the original
sentence for probation and therefore the State did not breach the
plea agreement. There is no evidence to indicate the parties
intended the plea agreement to extend beyond the original
sentencing for burglary. To treat the sentencing after probation
revocation as an integral part of the original sentence would bind
the State to that plea agreement ad infinitum in all subsequent
sentencing hearings arising out of the original crime.

.…

… The State fulfilled its duty under the plea agreement by
remaining silent at the original sentencing hearing. The scope of
the plea agreement was limited to the original hearing for which
Windom was sentenced to probation.

Id. at 350-352.

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No. 2024AP2162-CR

¶13 It is Jordan’s burden as the appellant to show how the circuit court
erred, see Gaethke v. Pozder, 2017 WI App 38, ¶36, 376 Wis. 2d 448, 899
N.W.2d 381; it is his burden as the party asserting a breach of the plea agreement
to show a material and substantial breach, see Deilke, 274 Wis. 2d 595, ¶13; and it
is his burden as a defendant claiming his counsel performed ineffectively to show,
inter alia, that counsel performed deficiently, see State v. Cooper, 2019 WI 73,
¶28, 387 Wis. 2d 439, 929 N.W.2d 192; Maloney, 281 Wis. 2d 595, ¶24. He has
made none of these showings and satisfied none of his burdens.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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