The State admits that it made a sentencing recommendation that breached the parties’ plea agreement. It claimed that the breach was not “material and substantial” because after the defendant objected it withdrew the recommendation. The court of appeals found the State’s breach to be “material and substantial” and the DA’s after-the-fact retraction of its comments and recommendation did not cure the breach.
The State charged Nietzold with 5 counts of 2nd-degree child sexual assault. The parties entered a plea agreement which had Nietzold plead “no contest” to one count of repeated child sexual assault. In exchange, the DA could argue for a prison sentence but not for any specific term of imprisonment.
At sentencing, the DA commented on the PSI’s recommendation for an initial term of confinement and extended supervision and then made his own specific recommendation. Defense counsel objected, and the DA withdrew his recommendation. The circuit court imposed 15 years of initial confinement and 10 years of extended supervision.
The court of appeals first explained why the DA’s breach was “material and substantial.”
¶12 “[W]hen a prosecutor agrees to make no sentence recommendation but instead recommends a significant prison term, such conduct is a material and substantial breach of the plea agreement.” State v. Smith, 207 Wis. 2d 258, ¶38, 558 N.W.2d 379 (1997); see also Williams, 249 Wis. 2d 492, ¶¶45-51, 58-9 (concluding that the State materially and substantially breached the plea agreement by references in its sentencing remarks to the PSI and other sources that “undercut” the negotiated plea agreement).
The court further held that Nietzold was not required to prove that the circuit court relied on the State’s comments and recommendation.
¶17 Finally, the State argues that sentencing courts “should be trusted to set aside information mistakenly provided at sentencing that may not be considered,” and that here, the circuit court did not focus on the prosecutor’s withdrawn recommendation. However, as the State acknowledges, “it is irrelevant whether the [circuit] court was influenced by the State’s alleged breach or chose to ignore the State’s recommendation.” State v. Howard, 2001 WI App 137, ¶14, 246 Wis. 2d 475, 630 N.W.2d 244; see also Santobello v. New York, 404 U.S. 257, 262 (1971) (holding that because the prosecutor made an improper sentencing recommendation that constituted a breach of the plea agreement the court “need not reach the question” of whether the sentencing judge was influenced by the recommendation)
The court of appeals remanded this case for a new sentencing before a different judge. It redacted the DA’s comments and sentencing recommendation from its decision to avoid influencing the judge who will conduct the resentencing hearing.