State v. Robert K. Nietzold, Sr.
2023 WI 22 (2023)
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Rule of Law:
A prosecutor's material and substantial breach of a plea agreement can be cured by an immediate and unequivocal retraction of the erroneous statements and adherence to the agreement's terms, thereby transforming the breach into a nonmaterial one.
Facts:
- Robert Nietzold, Sr. pleaded no contest to one count of repeated sexual abuse of a child.
- His plea agreement stipulated that the prosecutor was free to argue for prison but agreed not to recommend a specific term of imprisonment.
- At the sentencing hearing, the prosecutor initially asked the circuit court to impose a specific 27-year sentence, comprised of 12 years of initial confinement and 15 years of extended supervision.
- After the prosecutor concluded his remarks, defense counsel immediately pointed out that the prosecutor had breached the plea agreement by making a specific recommendation.
- The prosecutor promptly acknowledged his mistake and modified the State's recommendation to an undefined prison term, in conformance with the plea agreement.
- Later in the hearing, the circuit court, while discussing sentencing, mentioned that the 'state' recommended 12 years of initial confinement.
- The prosecutor again interjected and reminded the court that he was not arguing for a specific sentence length.
- The circuit court clarified that it was referring to the Department of Corrections' recommendation in the presentence investigation report, not the prosecutor's, and confirmed its understanding that the prosecutor had withdrawn his specific recommendation.
- The circuit court ultimately crafted its own sentence of 25 years, consisting of 15 years of initial confinement and 10 years of extended supervision.
Procedural Posture:
- Robert Nietzold, Sr. pleaded no contest to one count of repeated sexual abuse of a child in the Vernon County Circuit Court (trial court), Judge Darcy J. Rood presiding.
- The circuit court denied Nietzold's motion for postconviction relief, which sought resentencing based on the State's initial violation of the plea agreement, without a hearing.
- Nietzold, as the appellant, appealed the circuit court's decision to the Wisconsin Court of Appeals (intermediate appellate court).
- The Court of Appeals reversed the circuit court's decision and remanded the case for resentencing before a new judge, concluding that the prosecutor materially breached the plea agreement and the breach was not cured.
- The State of Wisconsin, as the plaintiff-respondent-petitioner, petitioned the Wisconsin Supreme Court for review of the Court of Appeals' decision.
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Issue:
1. Does a prosecutor cure a material and substantial breach of a plea agreement when, after initially recommending a specific term of imprisonment in violation of the agreement, the prosecutor immediately retracts and corrects the mistake upon being alerted to the error? 2. Was defense counsel ineffective for failing to object earlier to the prosecutor's initial breach of the plea agreement?
Opinions:
Majority - Hagedorn, J.
Yes, a prosecutor cures a material and substantial breach of a plea agreement when, after initially recommending a specific term of imprisonment, the prosecutor immediately retracts and corrects the mistake upon objection. No, defense counsel was not ineffective for failing to object earlier. The court affirmed that plea agreements are a species of contract with constitutional boundary markers. While a material and substantial breach requires a remedy, some breaches can be cured. Citing Puckett v. United States, the court noted that an initial error, such as requesting a higher sentence than agreed upon, is not uncurable, especially if the prosecution simply forgot its commitment and is willing to adhere to the agreement. Drawing parallels to general contract law, the court explained that to cure a material breach means to engage in subsequent conduct that substantially performs the agreement without a material failure, thereby rendering the breach nonmaterial. The court cited precedent from federal circuits (United States v. Ligon, Diaz-Jimenez, United States v. Amico) that a material breach may be cured if the prosecutor unequivocally retracts the error. In this case, the prosecutor's immediate acknowledgment of his blunder and modification of the State's recommendation to an undefined prison term, combined with his subsequent clarification when the court seemed to misunderstand, constituted an unequivocal retraction. These actions transformed the material and substantial breach into a nonmaterial one, ensuring Nietzold received the benefit of his bargain. The court distinguished this case from State v. Williams, where the attempted retraction was equivocal and implied arguments against the plea agreement. Regarding ineffective assistance of counsel, the court found counsel's performance was not deficient because he objected after the prosecutor finished his sentencing remarks, which was sufficiently timely to enable the prosecutor to cure the mistake and ensure Nietzold received the benefit of his plea agreement.
Analysis:
This case provides crucial clarification on the standards for curing a prosecutorial breach of a plea agreement in Wisconsin, emphasizing that immediate and unequivocal retraction can remedy an initial error. It reinforces the contract-like nature of plea agreements while acknowledging their constitutional underpinnings, offering practical guidance for prosecutors and defense attorneys on how to address inadvertent breaches during sentencing. The decision suggests that courts will assess the prosecutor's conduct and the clarity of their retraction, rather than solely focusing on the initial impact of the breach, in determining if a cure has occurred. Furthermore, it sets a standard for evaluating the timeliness of defense counsel's objection in such scenarios, indicating that an objection enabling a cure is generally sufficient to meet constitutional standards.
