State v. Robert K. Nietzold, Sr.

2023 WI 22, 986 N.W.2d 795, 406 Wis. 2d 349

• Court: Wisconsin Supreme Court
• Decided: March 28, 2023
• Docket: 2021AP000021-CR
• Status: Published

Opinion

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REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 400 Wis. 2d 545, 970 N.W.2d 590 (2022 – unpublished)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: March 28, 2023 SUBMITTED ON BRIEFS: ORAL ARGUMENT: October 10, 2022

SOURCE OF APPEAL: COURT: Circuit COUNTY: Vernon JUDGE: 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,

Plaintiff-Respondent-Petitioner, FILED v. MAR 28, 2023

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. Reversed.

¶1 BRIAN HAGEDORN, J. Plea agreements are a kind of

contract. 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 for failing to object earlier to the errant remarks. No. 2021AP21-CR

I. BACKGROUND

¶2 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 confinement as recommended by the presentence

investigation report (PSI), and 15 years of extended

supervision——five years longer than the PSI recommendation.2

1 The Honorable Darcy J. Rood of the Vernon County Circuit Court presided. 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. 2021AP21-CR

¶4 After the prosecutor concluded, with the specific

recommendation coming at the very end of his remarks, defense

counsel began by pointing out the prosecutor's breach. Counsel

expressed that the State had agreed not to "make any

recommendation with respect to any period of time." 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]: Well, not even that. Just a prison sentence.

The Court: Okay. All right. After the prosecutor 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. 2021AP21-CR

his argument and asked for two to three years of initial

confinement. Nietzold then briefly addressed the court.

¶5 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, recall that I didn't make a recommendation.

The Court: The state. I meant DOC by the state, not you.

[Prosecutor]: 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]: Right, but, Judge, --

The Court: -- confinement --

[Prosecutor]: The negotiation --

The Court: I understand.

[Prosecutor]: I was not to make any recommendation.

4 No. 2021AP21-CR

The Court: 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 court clarified that it was referring to the

Department of Corrections' recommendation when invoking the

"state," and that the court understood the prosecutor had

withdrawn his earlier comments and was not arguing for a

specific prison term. In the end, the circuit court crafted its

own sentence of 25 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. The circuit court denied the motion without

a hearing. 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. Id., ¶15. We granted the

State's petition for review.

5 No. 2021AP21-CR

II. ANALYSIS

¶7 Nietzold makes two arguments on appeal. First, he

contends the State materially and substantially breached the

plea agreement and that this breach was not cured. Second, he

asserts that his counsel was ineffective for failing to object

earlier to the prosecutor's breach. Neither argument prevails.

A. Curing The Prosecutor's Breach

¶8 A plea agreement is a species of contract——albeit one

with constitutional boundary markers.3 State v. Smith, 207

Wis. 2d 258, 271, 558 N.W.2d 379 (1997); United States v. Diaz-

Jimenez, 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. Bangert, 131 Wis. 2d at 289.

¶9 An initial breach, however, even if material and

substantial, does not end the matter. Some breaches may be

cured. In Puckett v. United States, the United States Supreme

Those accused of crimes have "a constitutional right to 3

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.

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). While some breaches cannot be

cured, at least "some 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. 207 Wis. 2d at

272-73. After explaining that this was 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 principles of contract law confirm the

proposition that some material and substantial 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 (quoting another source). If the breach is

cured, it becomes nonmaterial. Id., ¶44 (quoting another

source). 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. United States v. 7 No. 2021AP21-CR

Ligon, 937 F.3d 714, 720 (6th Cir. 2019); 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 plea breaches require a remedy, and that some

breaches can be cured. The parties further agree that the

prosecutor materially and substantially breached 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. State v. Williams, 2002 WI 1, ¶5, 249

Wis. 2d 492, 637 N.W.2d 733. We accept a circuit court's

findings of fact unless they are clearly erroneous. Id.

Whether a plea agreement has been breached, however, is a

question of law we review independently. Id. 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. This

is because an appellate court must independently determine

whether a legal standard is met by the facts in a case. Id.

The same logic applies here. 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, because materiality is a 8 No. 2021AP21-CR

question of law, so too is cure. 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. Moments after those offending comments, defense

counsel 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. But that's not all. The prosecutor doubled

down when the circuit court made comments that initially

suggested it may have forgotten or misunderstood the

prosecutor's earlier correction. When the court said that the

"state" recommended 12 years, the prosecutor interjected and

reminded the court that he was not arguing for a specific

sentence length. The court confirmed it understood, and

explained that by "state" the court was referring to DOC's recommendation in the PSI. We accept this as a finding of the

circuit court that the prosecutor did withdraw his earlier,

erroneous comments, and was recommending only an undefined

prison term. And we conclude the prosecutor's immediate and

unequivocal retraction of his error——and subsequent actions

affirming that retraction——constitute a sufficient cure,

transforming the material and substantial breach into a

nonmaterial breach. After an initial error, Nietzold received

9 No. 2021AP21-CR

what he bargained for: 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 Nietzold further argues that this kind of cure was

"too little, too late" and cites Williams as support. 249

Wis. 2d 492, ¶52. We disagree. The prosecutor in Williams

"implied that had the State known more about the defendant, it

would not have entered into the plea agreement." Id., ¶47.

That left the impression that she was "arguing against the

negotiated terms of the plea agreement." Id., ¶48. 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 in an initial sentencing

recommendation can be remedied. See supra ¶¶8-10. An error

here occurred, but so did the necessary cure. Nietzold

sufficiently received the benefit of his plea bargain.

10 No. 2021AP21-CR

B. Ineffective Assistance of Counsel

¶18 In the alternative, Nietzold argues his counsel was

ineffective for failing to contemporaneously object when the

prosecutor breached the agreement. A defendant claiming

ineffective assistance of counsel must show "both that (1)

counsel's representation was deficient, and (2) the deficiency

was prejudicial." State v. Ruffin, 2022 WI 34, ¶29, 401

Wis. 2d 619, 974 N.W.2d 432. We conclude Nietzold's counsel did

not perform deficiently. See id. ("Both prongs of the inquiry

need not be addressed if the defendant makes an insufficient

showing on one.").

¶19 Proving deficiency requires showing that "counsel's

representation fell below an objective standard of

reasonableness considering all the circumstances." 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." Id.

¶20 Here, defense counsel objected after the prosecutor finished his sentencing remarks, which concluded with the

erroneous recommendation for a specific sentence. 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. 2021AP21-CR

benefit of his plea agreement. This comes nowhere close to a

Sixth Amendment violation. Because his counsel did not perform

below a constitutionally acceptable standard, Nietzold's

ineffective assistance of counsel claim fails.

III. CONCLUSION

¶21 The court of appeals determined that Nietzold was

entitled to a new sentencing hearing. We reverse. 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 agreement. The bell, Nietzold argues, cannot be

unrung. "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. Nietzold's

alternative argument that his counsel provided ineffective

assistance for failing to timely object likewise fails.

By the Court.—The decision of the court of appeals is reversed.

12 No. 2021AP21-CR