David L. Hartjes v. Jeffrey P. Endicott

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1963
D AVID L. H ARTJES ,
Petitioner-Appellant,
v.
J EFFREY P. E NDICOTT ,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 04-C-0840—William C. Griesbach, Judge.
____________
A RGUED N OVEMBER 7, 2005—D ECIDED A UGUST 8, 2006
____________
Before POSNER, EASTERBROOK , and W OOD , Circuit Judges.
W OOD , Circuit Judge. In 2001, David L. Hartjes pleaded
no contest in Wisconsin state court to four counts of second-
degree sexual assault, or sexual intercourse with a person
under the age of 16. His victim was his adopted daughter.
While the case was pending, other allegations arose about
Hartjes’s conduct with both his adopted daughter and other
minors—allegations that neither led to charges nor were
admitted by Hartjes. At his sentencing, however, the
prosecutor mischaracterized the state of the case, indicating
to the judge that additional charges had been “read in,”
meaning that the judge could deem the charges admitted
and in that light take them into account in sentencing.
Although Hartjes’s attorney did not specifically object to

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2 No. 05-1963
this statement, he did make clear that Hartjes disputed the
additional allegations. The judge sentenced Hartjes to 20
years in prison to be followed by 40 years of extended
supervision. Hartjes unsuccessfully challenged his sentence
in the Wisconsin state courts.
Hartjes then filed a petition for federal habeas corpus
relief, in which he claimed that his counsel was ineffective,
either for failing to object or for permitting a modification
of his plea agreement without his consent. He argued that
he should either be resentenced or permitted to withdraw
his plea of no contest. While it is a matter of concern
whenever a prosecutor misrepresents the state’s case at
sentencing, we cannot say that the decision of the Wiscon-
sin Court of Appeals finding that defense counsel’s perfor-
mance met constitutional standards and that Hartjes
was not prejudiced by the failure to object was unreason-
able. We therefore affirm the district court’s judgment
denying the petition.
I
With the benefit of a plea agreement, Hartjes pleaded no
contest to four counts of sexual intercourse with a person
under the age of 16 in violation of Wis. Stat. § 948.02(2). He
faced up to 30 years in prison on each count. The plea
agreement called for an “open sentencing,” at which both
sides were free to make any argument to establish what
sentence would be appropriate. The plea agreement did
not provide for any additional charges or potential
charges to be “read in,” a procedure under Wisconsin law in
which the prosecutor agrees not to charge or to dismiss
charges of other crimes as part of a plea agreement, and the
defendant agrees that those charges can be “considered by
the court at the time of sentencing.” Wis. Stat. § 973.20(b).
See Austin v. State, 183 N.W.2d 56, 58-59 (Wis. 1971)
(“Under our read-in procedure, the defendant does not plead

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No. 05-1963 3
to any charges and therefore is not sentenced on any of the
read-in charges but such admitted uncharged offenses are
considered in sentencing him on the charged offense. Thus
under the read-in procedure, the defendant does not run the
risk of consecutive sentences or even concurrent sentences.
His only risk is a longer sentence for the crime charged but
this sentence cannot exceed the maximum.”).
Before sentencing, additional allegations surfaced that
Hartjes had assaulted the victim on many occasions in
addition to those listed in the charges, and that he also had
sexually abused three other girls, two of whom were his
biological daughters. The state, however, did not bring any
additional charges. It indicated instead that none would be
brought, and Hartjes never admitted to these additional
allegations.
At sentencing, a new prosecutor appeared for the state
and included in his description of the harm from Hartjes’s
crimes not only the original charged instances but the
repeated abuse over “44 weekends plus three full weeks”
when Hartjes had custody of his daughters. The prosecutor
then indicated that he believed “by agreement of coun-
sel[ ]that certain other conduct to which reference is
made, conduct with respect to other children, even his
own children[,] referred to in the pre-sentence report, is not
going to be prosecuted by the district attorney’s office, but
can be treated as a read-in offense.” The prosecutor contin-
ued, “And that means the Court can take it as true. [His
adopted daughter] is not his only victim. Other children are
at risk. In fact, all children are at risk [because] of his
charm, his looks, his glib tongue, his manipulating man-
ner.” The prosecutor then asked that Hartjes be barred from
unsupervised contact with any children under the age of 18,
concluding with a repetition of his mistake about read-in
offenses: “And with respect to the victim and the victims of
the—what may be considered the read-in behavior, there
should never be any contact at all.”

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4 No. 05-1963
Hartjes’s attorney did not formally object to these refer-
ences to “read-in offenses” or “read-in behavior.” Indeed, he
inadvertently repeated the mistake by saying “[w]ith regard
to the behaviors that are being read in” as he began to
clarify the status of those uncharged allegations. Neverthe-
less, he also made clear to the sentencing court that there
was no agreement to read in charges; instead, Hartjes’s
counsel explained, he had merely approached the prosecutor
to find out what was going on when he heard about the
additional allegations and was “informed [ ] that they would
not be pursuing them and that he would agree to read them
in for purposes of [ ] no further prosecutions.” Hartjes’s
attorney represented that “never was there any admission
on [Hartjes’s] part or on my part to this behavior. He
absolutely denies any sort of sexual activity with any of his
other children or any other child, for that matter.” He also
suggested a reason for why the prosecutor had agreed not
to pursue additional charges: “I don’t want to put words in
[the prosecutor’s] mouth either, but [ ] he believed that he
had sufficient ammunition, for lack of a better term, to pro-
ceed right now and [ ] he agreed that none of the other
matters would be pursued.”
At sentencing, the state court observed that Hartjes’s
offenses were “very serious” and that “a young child [ ] will
live with this for the rest of her life.” The court also recalled
that the victim had asked for a sentence of life in prison and
observed, “There just can’t be a crime that is more devastat-
ing, one that turns the stomach of an ordinary citizen, one
that frightens many people for their daughters.” The court
never specifically either accepted or rejected the additional
allegations. Ultimately, it sentenced Hartjes to 20 years in
prison, to be followed by 40 years of extended supervision.
In addition, the court ordered that Hartjes have “no unsu-
pervised . . . contact with any child under the [age] of 18”
and “no contact with the child victims until they are all of
majority.”

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No. 05-1963 5
Several months later, Hartjes sought resentencing,
contending that the state had breached the plea agreement
by arguing that the additional charges had been read in. By
this time, Hartjes had obtained new counsel; his original
attorney testified at the hearing. The attorney testified that
he went over the plea questionnaire and waiver-of-rights
form with Hartjes. He testified that the additional allega-
tions first arose in a letter sent to the judge by relatives,
and that as a result he spoke to the prosecutor who “agreed
that he had enough and he didn’t want to pursue anything
else.” Hartjes’s first attorney also testified, “He had talked
about reading it in. And then we talked about just agreeing
not to charge the matter. And my recollection of what was
finally resolved was that he had agreed that [ ] they would
simply agree not to charge them and agree that . . . they
were done and over with.” He also said that he told the
prosecutor that Hartjes “absolutely denied any of those
allegations with any of the other victims” and that when the
prosecutor at the sentencing began talking about read-in
charges, he simply failed to object: “[T]here was certainly no
strategic reason. . . . I dropped the ball.” The prosecution
pointed out that regardless of whether the charges were
read in, the sentencing court was entitled to take the
uncharged offenses into account in considering the “serious-
ness of the offense” and the “character of the defendant.”
The court denied Hartjes’s request for resentencing,
pointing out that it had based the sentence primarily on the
extensive damage Hartjes did to one victim, his adopted
daughter. The court also commented that it did not “place
any great emphasis” on the additional allegations, holding,
“The sentence that I gave was appropriate to the four
counts that [ ] he committed.” Any breach by the prosecu-
tion, the court added, “was not material[ ] and substantial.”
The Wisconsin Court of Appeals rejected Hartjes’s
arguments that the prosecution violated the plea agree-
ment, that his trial counsel was ineffective, and that his

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6 No. 05-1963
plea was not knowing and voluntary because he did not
understand the plea agreement. See State v. David L.H.,
No. 02-2871-CR, 667 N.W.2d 378 (Table) (Wis. App. June
24, 2003) (unpublished). The Wisconsin Supreme Court
denied Hartjes’s petition for review. 671 N.W.2d 850 (Wis.
2003).
Turning to the federal courts, Hartjes filed a petition for
habeas corpus pursuant to 28 U.S.C. § 2254, contending
again that his counsel was ineffective, that the state
breached the plea agreement, and that his plea was invol-
untary. The district court rejected these claims but granted
a certificate of appealability on both Hartjes’s Sixth Amend-
ment ineffective assistance of counsel and his Fourteenth
Amendment due process/voluntariness of plea claims.
II
In reviewing the denial of a habeas corpus petition by the
district court, we are confined by the standards prescribed
in the Antiterrorism and Effective Death Penalty Act
(AEDPA), 28 U.S.C. § 2254(d), which directs us (as relevant
here) to ask only whether the state court’s decision
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unrea-
sonable determination of the facts in light of the
evidence presented in the State court proceeding.
In this case, there is no question that the Wisconsin Court
of Appeals applied the proper law; our inquiry is there-
fore limited to the unreasonable application part of the test.
It is by now well established that this is a highly deferential
standard. As the Supreme Court put it in Brown v. Payton,
544 U.S. 133, 143 (2005), “[e]ven on the assumption that

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No. 05-1963 7
[the state court’s] conclusion was incorrect, it was not
unreasonable, and is therefore just the type of decision that
AEDPA shields on habeas review.”
Hartjes’s primary argument is that his lawyer was
ineffective when he failed to object to the state’s breach of
his plea agreement, or when he tacitly agreed to modify the
agreement without Hartjes’s consent. Ineffective assistance
of counsel claims, as the Wisconsin court properly recog-
nized, are governed by the Supreme Court’s decision in
Strickland v. Washington, 466 U.S. 668 (1984). Strickland
established a two-part test for evaluating claims that a
petitioner was denied the effective assistance of counsel:
first, the lawyer’s performance must have been so defective
that he “was not functioning as the ‘counsel’ guaranteed . .
. by the Sixth Amendment”; second, those errors must have
prejudiced the defense. Id. at 687. It is not easy for a
petitioner to show that his counsel’s performance was
objectively ineffective, as “[t]here is a strong presumption
that counsel’s performance falls within the wide range of
professional assistance.” Kimmelman v. Morrison, 477 U.S.
365, 381 (1986) (internal quotation marks omitted). “The
reasonableness of counsel’s performance is to be evaluated
from counsel’s perspective at the time of the alleged error
and in light of all the circumstances, and the standard of
review is highly deferential.” Id.
Moreover, Hartjes faces a preliminary problem. His Sixth
Amendment argument is premised on the assumption that
there was either a breach or an unconsented modification
of his plea agreement. If there was not, his ineffectiveness
claim collapses. Plea agreements, of course, are contracts
that must be fulfilled. See Santobello v. New York, 404 U.S.
257, 262 (1971). A state’s promise “need not be explicit to be
enforceable,” but “more than an ‘unfounded and unilateral
belief’ is required to support the defendant’s assertion that
the government made a particular promise.” United States
v. Williams, 198 F.3d 988, 992 (7th Cir. 1999) (quoting

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8 No. 05-1963
United States v. O’Brien, 853 F.2d 522, 526 (7th Cir. 1988)).
Nevertheless, not every breach of a plea agreement merits
relief. The breach must be material or substantial, not
merely technical. See United States v. Brown, 425 F.3d 681,
682 (9th Cir. 2005); State v. Naydihor, 678 N.W.2d 220, 225
(Wis. 2004) (“An actionable breach must not be merely a
technical breach; it must be a material and substantial
breach.”) (quoting State v. Williams, 637 N.W.2d 733, 744
(Wis. 2002)). Cf. United States v. Flores-Sandoval, 94 F.3d
346, 352 (7th Cir. 1996); United States v. Pryor, 957 F.2d
478, 482 (7th Cir. 1992).
In this case, the Wisconsin Court of Appeals found that
any breach of the plea agreement was technical, not
substantial or material:
While the prosecutor may have been technically incor-
rect referring to the additional allegations as read-in
offenses, [Hartjes] was not deprived of a material,
substantial benefit by the prosecutor’s characterization.
The State and the trial court are allowed to consider
uncharged and unproven offenses when assessing a
defendant’s character and behavior patterns.
The Court of Appeals noted that Hartjes’s attorney
“correct[ed] the impression that [Hartjes] admitted the
additional allegations” and that “[n]o material and substan-
tial breach of a plea agreement occurs when the prosecutor’s
misstatement is promptly corrected and the mistake does
not taint the entire sentencing proceeding.” Following its
decision in State v. Knox, 570 N.W.2d 599, 601 (Wis. App.
1997), a case in which there had been a material misstate-
ment that was corrected, the Court of Appeals interpreted
the prosecutor’s mistake in Hartjes’s case as one that also
was corrected and that did not affect the substance of the
bargain codified in the plea agreement.
We cannot say that the analysis and conclusion of the
Wisconsin Court of Appeals is incorrect, let alone unreason-
able. It is true that the plea agreement did not include any

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No. 05-1963 9
read-in charges. Indeed, absent clairvoyance, it could not
have, because the additional allegations had not yet been
made. Furthermore, there is no indication that the state
went through the formal procedures that are required by
Wisconsin law to read in uncharged conduct (including
some conduct from another county). See Wis. Stat. §§ 973.20
(restitution for all victims, including those from read-in
offenses), 971.09 (procedures for pleading to crimes from
more than one county). It also does not appear that the plea
agreement was modified in any way after Hartjes’s guilty
plea. Hartjes’s lawyer’s informal conversation with the
prosecutor would be insufficient to amend the agreement in
the absence of Hartjes’s own consent; in addition, the
lawyer testified consistently that he told the prosecutor—as
he later told the court— that Hartjes denied the additional
allegations. Indeed, had the defense counsel not talked to
the prosecutor about the new allegations, we might have
been looking at a different ineffective assistance claim. As
it was, counsel appears to have extracted a gratuitous
promise from the prosecutor not to pursue the other charges
in light of the fact that Hartjes already faced a significant
prison term.
Hartjes insists, however, that the state’s referral to the
additional allegations as read-in crimes is, contrary to the
finding of the Wisconsin Court of Appeals, a material and
substantial breach of the plea agreement. Although the
court would have known of the additional allegations
regardless, informing the court of uncharged allegations is a
far cry, Hartjes contends, from allowing the court to deem
the charges admitted, which is what the use of the “read-in”
term of art permitted. But we are talking here about
marginal effects, and the question is whether the Wisconsin
court was compelled to find that any additional weight the
trial court may have given to these allegations was enough
to create a substantial and material breach of the plea
agreement. See, e.g., Naydihor, 678 N.W.2d at 225 (“A

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10 No. 05-1963
breach is material and substantial when it defeats the
benefit for which the accused bargained.”) (internal quota-
tion omitted).
We are satisfied that the Wisconsin court’s resolution of
this question was a reasonable application of Strickland.
Indeed, it is unclear how the prosecutor’s reference to the
additional charges as read-in charges could have defeated
this particular bargain. In the plea agreement, both sides
specifically reserved the right to make any argument at
an “open sentencing.” Even had the term “read in” never
been used, the trial court would have heard of the addi-
tional allegations in a series of victim statements, including
ones from the victim herself, her mother, and her grandpar-
ents. These statements referred not only to the charged
incidents but to Hartjes’s behavior with other young girls,
including the victim’s younger sisters and a friend. Under
Wisconsin law, “the trial court in imposing sentence for one
crime can consider other unproven offenses, since those
other offenses are evidence of a pattern of behavior which
is an index of the defendant’s character, a critical factor in
sentencing.” Elias v. State, 286 N.W.2d 559, 562 (Wis.
1980). Furthermore, nothing would have stopped the
prosecutor from arguing that these additional unproven
charges further demonstrated the quality or lack thereof of
Hartjes’s character and supported his request for a long
term in prison.
Once the uncharged offenses were before the court, the
only question is whether the reference to them as read
in, rather than uncharged and unproven, matters. We
acknowledge that this is not a trivial difference: it reflects
the line between allegations that are admitted and
those that are not. It is troubling that the prosecutor erred
about the status of the unproven offenses and that once
Hartjes’s counsel finally spoke up, the prosecutor never
corrected his position. See Knox, 570 N.W.2d at 600-01;
State v. Bowers, 696 N.W.2d 255, 259-60 (Wis. App. 2005).

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No. 05-1963 11
Nevertheless, as the Wisconsin court stressed, any mis-
take about Hartjes’s position on these charges was clarified
later in the hearing by his attorney’s statement to the court
that Hartjes “absolutely denies any sort of sexual activity
with any of his other children or any other child, for that
matter.” Bearing in mind the Supreme Court’s repeated
insistence that federal courts give the benefit of the doubt
to state courts in these situations, we conclude that the
Wisconsin Court of Appeals’s ruling that “[n]o material and
substantial breach of a plea agreement occurs when the
prosecutor’s misstatement is promptly corrected and the
mistake does not taint the entire sentencing proceeding”
was not unreasonable.
Given that there is no material and substantial breach of
the plea agreement and consequently no ineffectiveness,
there is no need to consider the extent of prejudice that
might have occurred from the prosecutor’s misstate-
ments. Nevertheless, we note for completeness that the
Wisconsin court’s holding that Hartjes suffered no prejudice
from his trial counsel’s conduct at sentencing also met the
AEDPA reasonableness standard. The trial court was
informed prior to imposing sentence that Hartjes did not
admit to any additional misconduct, particularly with other
children, which (the state court was entitled to find)
negated any assumption that he conceded the truth of these
allegations. Also, the allegations themselves were placed
before the court through the statements of the victim and
her family members; thus, the prosecutor introduced no new
material into the proceeding.
Finally, Hartjes contends that his initial plea was invol-
untary because he did not know that he would be sentenced
based on additional read-in charges. This argument is a bit
hard to follow, because no one could have told him about the
as-yet unknown accusations; we assume, however, that his
basic point here is that he would have insisted on a full

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12 No. 05-1963
trial, had he known then what he knows now. As the
Supreme Court observed in Brady v. United States,
the plea is more than an admission of past conduct; it
is the defendant’s consent that judgment of conviction
may be entered without a trial—a waiver of his right to
trial before a jury or a judge. Waivers of constitutional
rights not only must be voluntary but must be knowing,
intelligent acts done with sufficient awareness of the
relevant circumstances and likely consequences.
397 U.S. 742, 748 (1970). See generally Boykin v. Alabama,
395 U.S. 238 (1969). In Wisconsin, the standard to with-
draw a plea post-sentencing is that the defendant must
prove “manifest injustice” by clear and convincing evidence.
State v. Nawrocke, 534 N.W.2d 624, 626 (Wis. App. 1995)
(“The ‘manifest injustice’ test is rooted in concepts of
constitutional dimension, requiring the showing of a serious
flaw in the fundamental integrity of the plea.”).
The Wisconsin Court of Appeals recognized this principle,
but it nevertheless rejected Hartjes’s argument. It reasoned
that although the plea agreement did not mention read-in
offenses, the State was “free to present uncharged offenses
to establish his character regardless of whether he agreed.”
Hartjes, the Court of Appeals ruled, failed to “establish[ ]
any manifest injustice that arises from characterizing the
additional offenses as read-ins rather than merely un-
charged offenses.” To the extent that his involuntariness
argument depends upon either a modification of the plea
agreement or the reference to the additional allegations as
“read in,” this argument merely rehashes Hartjes’s ineffec-
tive assistance claim. For the same reasons that the state
court was not unreasonable in holding that the prosecutor’s
mistake was a technical rather than substantial breach of
the plea agreement, it was not unreasonable in finding that
this glitch in the proceedings did not undermine the
voluntariness of Hartjes’s decision to enter into the plea

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No. 05-1963 13
agreement. He assured the court during his plea colloquy
that he was acting of his own free will, and he knew that he
faced up to 120 years in prison. There is certainly nothing
to suggest that Hartjes had the unreasonable expectation
that the court could not consider his character in the course
of sentencing. The district court was correct in rejecting this
alternate ground for habeas corpus relief.
III
Finding no merit in any of Hartjes’s arguments, we
A FFIRM the judgment of the district court.

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14 No. 05-1963
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-8-06

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