State v. Robert K. Nietzold, Sr. ( 2023 )

2023 WI 22SUPREME 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Reported at 400 Wis. 2d 545, 970 N.W.2d 590(2022 – unpublished)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 22NOTICE
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.
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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.
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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.
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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
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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.
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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
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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.
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No. 2021AP21-CR
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