¶ 22. (concurring in part, dissenting in part). This case in my view actually starts long before Richard Bowers was arrested for driving while intoxicated, as a sixth offense, on December 25, 2002. On October 1, 2001, Bowers had his sentence for OWI-fifth offense withheld, and he was placed on probation for five years with various conditions, including a year in jail. He blew his probation chance when he was picked up on Christmas morning in 2002. From that point on, he was in jail on a probation hold. We know from the record that Bowers' prior counsel was engaged in dis*552cussions with the State whereby some alternative to revocation could be had. Obviously, those discussions did not prove fruitful to Bowers because on May 5, 2003, his probation was revoked. So, it is very clear to me that by the May 19 change-of-plea hearing, Bowers knew that he faced prison time for OWI-5th as well as the distinct probability of prison time for the QWI-6th.
¶ 23. So what does the plea agreement say about consecutive versus concurrent sentences? Nothing. Not a word. From this, the majority uses a maxim of contract law to declare that while the State must be held to the promises it made, it will not be bound to those it did not make.
¶ 24. I come to a different conclusion. With the very real prospect of spending time in prison as a result of his probation revocation looming on the horizon, Bowers agreed to change his plea in return for a specific recommendation by the State on his most recent violation. The State would recommend two years of initial confinement with three years extended supervision, and the defense would be free to argue. That is all. It was, on its face, an unambiguous recommendation by the State.
¶ 25. So what did the State do here? In open court, it voiced a recommendation beyond what it had agreed to recommend. It voiced to the trial court a further recommendation that the sentence be served consecutively to the probation revocation. In my mind, the State went beyond what it had agreed to recommend. The State's real recommendation was that Bowers do two years in confinement after serving the two and one-half years ordered by the circuit court in the OWI-5th case. I am satisfied that this voicing of an additional recommendation was a breach of the plea *553agreement. I am also satisfied that Bowers' trial counsel was ineffective for failing to object.
¶ 26. Much is made in the majority opinion of our case law explaining how we draw upon contract law in resolving plea bargain issues. But a major tenet of contract law is that the mutuality of assent underlies an enforceable contract. In plea bargaining terms, there must be a promissory exchange and the promise of certain benefits, including the exact penal promises, in return for a defendant's promise to enter a guilty or no contest plea. If we allow the State to bargain for a recommendation of a specific sentence and then let the State unilaterally recommend a consecutive sentence over and above the sentence recommendation mutually assented to, we are permitting the State to change the rules of the game.1
*554¶ 27. It is my opinion that Bowers was entitled to a clear understanding of exactly how the State's promise would affect him. If it were up to me, the State would not be able to recommend consecutive terms unless bargained for. While I would see nothing wrong with the State alerting the trial court that it should address whether the sentence is to be served consecutively or concurrently with another sentence, I see everything wrong with allowing the State to recommend consecutive terms without having bargained for it.
*555¶ 28. I would reverse the sentence and remand for a new sentencing where the State would be held to the terms of its bargain.
¶ 29. I dissent in part. I concur with the majority's answer to the other argument raised by Bowers regarding the State's initial misstatement of the agreed upon bargain.
The majority cites three cases from foreign jurisdictions in support of its decision. I recognize the existence of these decisions, but point out that they are the only three published cases on this subject. So, what the State has done here is not a regular recurring event either in Wisconsin or elsewhere. I guess I am stating the obvious, therefore, by noting that three cases hardly translates into a general consensus. And, as to those three cases, I am not impressed by the ipse dixit rationale of two of these opinions or the reductive reasoning of the third, United States v. Fentress, 792 F.2d 461 (4th Cir. 1986). Rather, I find more persuasive the supreme court's language in State v. Deilke, 2004 WI 104, ¶ 19 n.17, 274 Wis. 2d 595, 682 N.W.2d 945, which stated, "[B]reaches of provisions that were not explicitly stated in plea agreements have been held to be material and substantial breaches." See also id., ¶ 19. I agree with the majority that the court's statement "cannot be read as broadly granting courts permission to read into a plea bargain any unarticulated and unnegotiated term," see majority op., ¶ 17 n.3, but that observation is largely beside the point. The clear import of the supreme court's language was to unequivo*554cally 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. The majority dismisses Deilke and the cases it cites as relevant only where the State has violated an undisputed term of the contract or the defendant undermines "a benefit the State had bargained for by challenging one of the convictions underlying the agreed upon sentence." Majority op., ¶ 17 n.3 (emphasis added). I do not understand why there can be a breach when the defendant undermines an unexpressed benefit the State expected but not vice versa.
And I must profess complete surprise that the majority uses State v. Zanelli, 212 Wis. 2d 358, 569 N.W.2d 301 (Ct. App. 1997), to support its holding. In Zanelli, we held that the State was not foreclosed from filing a petition for a civil commitment as Zanelli's prison term was nearing its end just because it had agreed in a plea bargain to a sentencing cap recommendation for the underlying crime. As the plethora of Wis. Stat. ch. 980 cases attest, ch. 980 commitments are civil commitments and are not penal in character. The plea bargain in Zanelli went to penal limitations and the later ch. 980 petition was outside any penal consideration. Thus, Zanelli is far different from this case where the recommendation for a consecutive sentence was undeniably focused on Bowers' penal exposure. Zanelli is completely off point.