State v. Nietzold
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The Supreme Court reversed the determination of the court of appeals that Defendant was entitled to a new sentencing hearing, holding that the prosecutor cured a breach of the plea agreement in this case and that defense counsel was not deficient for failing to object earlier to the remarks.
Pursuant to a plea agreement, Defendant pleaded no contest to one count of repeated sexual abuse of a child. The circuit court ultimately crafted its own sentence of a term of twenty-five years. Defendant moved for postconviction relief, arguing that he was entitled to be resentenced based on the State's violation of the plea agreement. The circuit court denied the motion. The court of appeals reversed, ruling that the prosecutor materially breached the plea agreement. The Supreme Court reversed, holding (1) Defendant sufficiently received the benefit of his plea bargain; and (2) Defendant's ineffective assistance of counsel claim similarly failed.
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2023 WI 22 SUPREME COURT OF WISCONSIN CASE NO.: 2021AP21-CR COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Robert K. Nietzold, Sr., Defendant-Appellant. REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 400 Wis. 2d 545, 970 N.W.2d 590 (2022 – unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: March 28, 2023 October 10, 2022 Circuit Vernon Darcy Jo Rood JUSTICES: HAGEDORN, J., delivered the majority opinion for a unanimous Court. NOT PARTICIPATING: ATTORNEYS: For the plaintiff-respondent-petitioner, there were briefs filed by Jacob J. Wittwer, assistant attorney general, with whom on the briefs was Joshua L. Kaul, attorney general. There was an oral argument by Jacob J. Wittwer, assistant attorney general. For the defendant-appellant, there was a brief filed by Philip J. Brehm and Philip J. Brehm Attorney at Law, Janesville. There was an oral argument by Philip J. Brehm. An amicus curiae brief was filed by Ellen Henak, Robert R. Henak and Henak Law Office, S.C., Milwaukee, for the Wisconsin Association of Criminal Defense Lawyers. 2 2023 WI 22 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2021AP21-CR (L.C. No. 2018CF81) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, FILED Plaintiff-Respondent-Petitioner, MAR 28, 2023 v. Robert K. Nietzold, Sr., Sheila T. Reiff Clerk of Supreme Court Defendant-Appellant. HAGEDORN, J., delivered the majority opinion for a unanimous Court. REVIEW of a decision of the Court of Appeals. ¶1 BRIAN contract. HAGEDORN, J. Plea agreements Reversed. are a kind of And just like contracts, they can be breached, and breaches sometimes cured. The central question in this case is whether a prosecutor cured the breach of a plea agreement when he initially recommended a specific term of imprisonment despite the State's agreement not to do so, but then retracted and corrected the mistake upon being made aware of the error. We conclude that the breach was cured, and that defense counsel was not deficient remarks. for failing to object earlier to the errant No. I. ¶2 2021AP21-CR BACKGROUND In 2019, Robert Nietzold, Sr. pleaded no contest to one count of repeated sexual abuse of a child. He did so pursuant to a plea agreement in which the prosecutor was free to argue for prison, but agreed not to recommend a specific term of imprisonment. ¶3 At the sentencing hearing, the prosecutor asked the circuit court1 to impose a 27-year sentence, composed of 12 years of initial investigation confinement as report (PSI), recommended and 15 by the years presentence of extended supervision——five years longer than the PSI recommendation.2 The Honorable Darcy J. Rood of the Vernon County Circuit Court presided. 1 2 The prosecutor argued as follows: So what is -- again, what's the magic number? And as I've said before, that's a difficult position that this Court is in. And a lot of times the PSI may be the best barometer because they do have their grids and their guidelines, and they understand throughout either this region, or at least the state, what -- I don't want to say typical, because there isn't a typical sentence, but at least -- you have to put a number on it eventually. And the number that they came up with was 22, 12 of initial confinement and ten of extended supervision. Judge, I -- you know, again, whether that's the right number, not the right number, [the victim] was talking about the maximum term, which would be 40 years, 25 in and 15 out. Again, I don't know what the number is. I don't know what the magic number is. I think the number that the PSI put on is a reasonable number. I've looked at other sentences to -- again, when I say similar, at least the charge-wise, that that certainly is in the range in this area. 2 No. ¶4 After the prosecutor concluded, with 2021AP21-CR the specific recommendation coming at the very end of his remarks, defense counsel began by pointing out the prosecutor's breach. expressed that recommendation the with State had respect to agreed any not period to of Counsel "make time." any The prosecutor immediately acknowledged his mistake: [Prosecutor]: And, Judge, now that -- I wish [defense counsel] would have mentioned that. And that's an accurate statement, Judge. So -The Court: So you'll make no recommendation separate from that of the PSI. [Prosecutor]: sentence. The Court: After the Well, not even that. Okay. prosecutor Just a prison All right. corrected the State's recommendation in conformance with the plea agreement, defense counsel wrapped up Judge, the only thing I would ask the Court to consider would be 15 years is the maximum time of extended supervision. Maybe keep Mr. Nietzold on extended supervision for a 15-year period rather than the ten that's being requested. So I guess that's what I would ask that the Court consider, is a 27-year sentence with 12 years of initial confinement and 15 years of extended supervision. That would be a -- depending upon potentially early discharge from prison at some point, that would be about 25 years out that he would be under some formal either incarceration or supervision, which I think just makes some sense in regards to the heinous nature of these crimes. And so that’s what I would ask the Court to consider in regards to the sentence. 3 No. his argument confinement. ¶5 and asked for two to three years 2021AP21-CR of initial Nietzold then briefly addressed the court. Following a recess, the circuit court proceeded with its sentencing decision. Halfway through, the court mentioned that the "state" recommended 12 years of initial confinement, leading to an extended colloquy with the prosecutor: The Court: It's always so hard to put a number on what the sentence should be. The state recommended 12 years. We say 12 years in -[Prosecutor]: Judge, recommendation. The Court: you. The state. [Prosecutor]: recall that I didn't make a I meant DOC by the state, not Oh, I'm sorry. The Court: I'm sorry. I'm thinking of the DOC as the state, not [the prosecutor]. [Prosecutor]: Department of Corrections. The Court: Department of Corrections. Thank you for clarifying that. I would not want the record to state that, because I did not listen to what you were saying, essentially were echoing what the PSI said. [Defense counsel]: Well, the record does -- The Court: Other than asking for a longer extended supervision, but you didn't ask for any more -[Prosecutor]: The Court: -- confinement -- [Prosecutor]: The Court: Right, but, Judge, -- The negotiation -- I understand. [Prosecutor]: I was not to make any recommendation. 4 No. The Court: 2021AP21-CR And you withdrew your recommendation. [Prosecutor]: Yeah. The Court: I get that. I'm just saying it was DOC. It was DOC that made this recommendation. Thus, the Department "state," court of and withdrawn his clarified Corrections' that the earlier specific prison term. own sentence of 25 that it was referring to the invoking the the prosecutor had not arguing recommendation court understood comments and was when for a In the end, the circuit court crafted its years consisting of 15 years of initial confinement and ten years of extended supervision. ¶6 Nietzold filed a motion for postconviction relief seeking resentencing based on the State's initial violation of the plea agreement. a hearing. The circuit court denied the motion without Nietzold appealed and the court of appeals reversed and remanded for resentencing before a new judge. State v. Nietzold, No. 2021AP21-CR, unpublished slip op., ¶18 (Wis. Ct. App. Dec. 9, 2021). The court of appeals reasoned that the prosecutor materially breached the plea agreement by commenting on the merits of the PSI's recommendation and by recommending a specific sentence. Id., ¶14. It found unpersuasive the State's arguments that the prosecutor withdrew his earlier comments and clarified the State's position. State's petition for review. 5 Id., ¶15. We granted the No. II. ¶7 contends ANALYSIS Nietzold makes two arguments on appeal. the State 2021AP21-CR materially and substantially First, he breached plea agreement and that this breach was not cured. the Second, he asserts that his counsel was ineffective for failing to object earlier to the prosecutor's breach. A. ¶8 with Neither argument prevails. Curing The Prosecutor's Breach A plea agreement is a species of contract——albeit one constitutional boundary markers.3 State v. Smith, 207 Wis. 2d 258, 271, 558 N.W.2d 379 (1997); United States v. DiazJimenez, 622 F.3d 692, 694 (7th Cir. 2010). A plea agreement is breached when a prosecutor fails to abide by the negotiated sentencing recommendation. Smith, 207 Wis. 2d at 272. As in contract law, mere technical breaches are generally not enough to afford a remedy. Id.; State v. Bangert, 131 Wis. 2d 246, 289, 389 N.W.2d 12 (1986). A defendant seeking to vacate a plea must establish by clear and convincing evidence that the breach was material and substantial. ¶9 An initial breach, Bangert, 131 Wis. 2d at 289. however, substantial, does not end the matter. cured. even if material and Some breaches may be In Puckett v. United States, the United States Supreme Those accused of crimes have "a constitutional right to the enforcement of a negotiated plea agreement." State v. Williams, 2002 WI 1, ¶37, 249 Wis. 2d 492, 637 N.W.2d 733. Given the constitutional rights defendants give up when entering a plea, "the accused's due process rights demand fulfillment of the bargain." Id. 3 6 No. 2021AP21-CR Court rejected the notion that an initial error——for example, "requesting a higher sentence than agreed upon"——is uncurable. 556 U.S. 129, 139-40 (2009). cured, at least "some While some breaches cannot be breaches may be curable upon timely objection——for example, where the prosecution simply forgot its commitment and is willing to adhere to the agreement." Id. at 140. ¶10 This court has similarly said that some breaches can be cured. In Smith, we held that the State breached the plea agreement when it recommended a term of imprisonment despite its agreement to make no specific recommendation. 272-73. After explaining that this was 207 Wis. 2d at a substantial and material breach, we added that the breach "was not remedied, because Smith's counsel failed to object to the breach." Id. In other words, had the prosecutor been alerted to the error and corrected it, the initial breach may have been cured. ¶11 General proposition that principles some of material contract and law substantial confirm the breaches are curable. In an ordinary contract, we have said that "to cure a material breach means to engage in subsequent conduct that substantially performs or performs without a material failure." Volvo Trucks N. Am. v. DOT, 2010 WI 15, ¶45, 323 Wis. 2d 294, 779 N.W.2d 423 cured, it source). (quoting becomes another nonmaterial. source). Id., ¶44 If the breach (quoting is another In the context of pleas, courts have generally held that a material breach of a plea agreement may be cured if the prosecutor unequivocally retracts the error. 7 United States v. No. Ligon, 937 F.3d 714, 720 (6th Cir. 2019); 2021AP21-CR Diaz-Jimenez, 622 F.3d at 696; see, e.g., United States v. Amico, 416 F.3d 163, 165 (2d Cir. 2005) (concluding that government cured its plea breach by rapidly retracting it). ¶12 In this case, the parties agree that only material and substantial breaches plea can prosecutor breaches be cured. materially require The and a remedy, and parties further agree substantially that breached some that the the plea agreement by suggesting the PSI's recommendation was reasonable and recommending a specific prison term. The dispositive question is whether the breach was cured. ¶13 The terms of a plea agreement and the facts of the underlying conduct by the State in performance on that agreement are questions of fact. Wis. 2d 492, 637 findings fact Whether of a plea State v. Williams, 2002 WI 1, ¶5, 249 N.W.2d 733. unless agreement We they are has been accept a clearly circuit erroneous. breached, question of law we review independently. Id. court's however, Id. is a In Williams, we held that not only is the existence of breach a question of law, so is whether a breach is material and substantial. Id. is determine because an appellate court must independently whether a legal standard is met by the facts in a case. The same logic applies here. This Id. While the facts giving rise to an attempted cure may be found by the circuit court, whether those facts cure the breach——meaning there is no longer a material breach entitling an accused to a remedy——must likewise be a question of law. In other words, 8 because materiality is a No. question of law, so too is cure. 2021AP21-CR See, e.g., United States v. Purser, 747 F.3d 284, 294 (5th Cir. 2014) (reviewing cure of a plea breach de novo). ¶14 On this record, we conclude the prosecutor cured the breach. To recap, the prosecutor materially and substantially breached the agreement by advocating for a specific term of imprisonment. counsel Moments after those offending comments, defense informed the court of the prosecutor's error. The prosecutor immediately acknowledged the blunder and modified the State's recommendation to an undefined prison term——exactly what Nietzold agreed to. down when the suggested But that's not all. circuit it may court have made recommended reminded the sentence length. explained 12 court that years, that The by he "state" court erroneous the comments, prison term. unequivocal affirming that and initially misunderstood the the was prosecutor not arguing confirmed the court it was interjected for a and specific understood, referring to and DOC's We accept this as a finding of the prosecutor was did withdraw recommending only his an earlier, undefined And we conclude the prosecutor's immediate and retraction that transforming or that When the court said that the court recommendation in the PSI. circuit comments forgotten prosecutor's earlier correction. "state" The prosecutor doubled of his error——and retraction——constitute the nonmaterial breach. material and subsequent a substantial sufficient breach actions cure, into a After an initial error, Nietzold received 9 No. what he bargained for: 2021AP21-CR the State recommended a prison term but not a specific length of time. ¶15 Nietzold counters that we should look to the circuit court's comments after the prosecutor's cure as evidence that the court remained affected by the breach. However, our inquiry here focuses on the prosecutor's conduct, not the court's. See Santobello v. New York, 404 U.S. 257, 262 (1971). ¶16 "too Nietzold further argues that this kind of cure was little, too late" Wis. 2d 492, ¶52. and cites Williams We disagree. as support. The prosecutor in 249 Williams "implied that had the State known more about the defendant, it would not have entered into the plea agreement." That left the negotiated impression terms of that the plea she was "arguing agreement." Id., ¶47. against Id., ¶48. the The attempted retraction was therefore rather equivocal, coming with a "covert message to the circuit court that a more severe sentence was warranted than that which had been recommended." Id., ¶51. Unlike in Williams, the prosecutor in this case never "raised doubts regarding the wisdom of the terms of the plea agreement." Id., ¶50. Rather, he cured the breach by unequivocally retracting it. ¶17 In the end, Nietzold fails to counter the precedent establishing that even errors recommendation can be remedied. here occurred, but so did the in an initial See supra ¶¶8-10. necessary cure. sufficiently received the benefit of his plea bargain. 10 sentencing An error Nietzold No. B. ¶18 2021AP21-CR Ineffective Assistance of Counsel In the alternative, Nietzold argues his counsel was ineffective for prosecutor breached ineffective failing to the assistance contemporaneously agreement. of counsel A must object defendant show "both when the claiming that (1) counsel's representation was deficient, and (2) the deficiency was prejudicial." State v. Wis. 2d 619, 974 N.W.2d 432. not perform deficiently. Ruffin, 2022 WI 34, ¶29, 401 We conclude Nietzold's counsel did See id. ("Both prongs of the inquiry need not be addressed if the defendant makes an insufficient showing on one."). ¶19 Proving representation deficiency fell requires showing an objective below that "counsel's standard reasonableness considering all the circumstances." of Id., ¶30. We are "highly deferential to counsel's strategic decisions"; "counsel's performance need not be perfect, or even very good, to be constitutionally adequate." ¶20 Here, defense finished his erroneous sentencing recommendation Id. counsel objected after the prosecutor remarks, for a which concluded specific sentence. with the Perhaps defense counsel would have done better to object earlier when the prosecutor first began considering an appropriate sentence length. But this kind of imperfection does not rise to the level of constitutionally deficient performance in this case. As we have explained, counsel did raise the issue in a sufficiently timely way, enabling the prosecutor to cure his mistake. In doing so, counsel ensured Nietzold received the 11 No. benefit of his plea agreement. Sixth Amendment violation. below a constitutionally 2021AP21-CR This comes nowhere close to a Because his counsel did not perform acceptable standard, Nietzold's ineffective assistance of counsel claim fails. III. ¶21 The court of CONCLUSION appeals determined entitled to a new sentencing hearing. that Nietzold We reverse. was Nietzold asks us to hold that the prosecutor failed to cure his breach by initially recommending a specific prison term in violation of the plea unrung. agreement. The bell, Nietzold argues, cannot be "But a mistake is not a bell, and usually can be corrected." Diaz-Jimenez, 622 F.3d at 696. Here, the prosecutor corrected his mistake by unequivocally retracting it and abiding by the terms of the plea agreement. alternative argument that his counsel provided Nietzold's ineffective assistance for failing to timely object likewise fails. By the Court.—The decision reversed. 12 of the court of appeals is No. 1 2021AP21-CR
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