State v. Nietzold

Docket Number2021AP21-CR
Decision Date28 March 2023
Parties STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Robert K. NIETZOLD, Sr., Defendant-Appellant.
CourtWisconsin Supreme Court

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.

HAGEDORN, J., delivered the majority opinion for a unanimous Court.


¶1 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.


¶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

¶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 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.
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, 2021 WL 5829889 (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.


¶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, 558 N.W.2d 379. 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, 389 N.W.2d 12.

¶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 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, 129 S.Ct. 1423, 173 L.Ed.2d 266 (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, 129 S.Ct. 1423.

¶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, 558 N.W.2d 379. 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, 779 N.W.2d 423 (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. 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 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, ...

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