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SCOW will address whether prosecutor cured plea agreement breach by restating correct sentencing recommendation

State v. Robert K. Nietzold, Sr., 2021AP21-CR, petition for review of an unpublished court of appeals decision granted 4/13/22; case activity (including briefs and PFR)

Issue presented (composed by On Point based on the state’s PFR)

Was the state’s breach of its plea agreement with Nietzold remedied by the prosecutor’s withdrawal of the erroneous recommendation and restatement of the correct recommendation?

In exchange for Nietzold’s plea to one count of repeated sexual assault of a child, the state agreed not to recommend any specific term of imprisonment, though it could argue for a prison sentence. As the state concedes, the prosecutor breached the agreement by asking for a specific prison sentence and specific terms of confinement and supervision. Defense counsel pointed out the breach at the start of his sentencing argument, leading the prosecutor to interject, retract his initial recommendation, and ask instead for “just a prison sentence.” The circuit court imposed a sentence slightly shorter overall than what the prosecutor initially recommended, but imposed more confinement time.

Nietzold appealed, and the court of appeals ordered resentencing. The court rejected the state’s argument that the breach wasn’t material and substantial because the prosecutor’s retraction of the erroneous recommendation cured the breach. The court did so for a very specific reason:

…[T]he state fails to cite any legal authority to support the proposition that an after-the-fact accurate statement of the terms of the agreement under circumstances such as these is enough to restore the benefit of the State’s promise and rectify a material and substantial breach of the agreement. We need not consider the State’s argument further. (Slip op. ¶15).

Now comes the state in its petition for review, complaining that the court of appeals failed to apply case law holding that a prosecutor may cure a breach—namely, State v. Knox, 213 Wis. 2d 318, 570 N.W.2d 599 (Ct. App. 1997), and State v. Bowers, 2005 WI App 72, 280 Wis. 2d 534, 696 N.W.2d 255—and therefore the court of appeals’ decision is contrary to that case law and will cause confusion. But wait: Why did the court of appeals fail to apply that case law? Because, as just noted, the state failed to develop the argument or cite the case law—a failure the state admits by acknowledging in its PFR that it “should have … identified and discussed Knox and Bowers in the court of appeals.”

The state also claims the court of appeals’ decision unjustifiably extends the rule that a breach that is not objected to is per se prejudicial, see State v. Smith, 207 Wis. 2d 258, 558 N.W.2d 379 (1997), into a rule that a breach that is objected to can never be cured. This is a weak attempt to create an issue separate from the one the state failed to make below, for given the state’s failure to develop any argument that the prosecutor remedied the admitted breach, applying Smith‘s general rule was completely appropriate.

Because the state failed to make an argument and cite supporting law, its PFR essentially asks SCOW for the chance to make the claim it didn’t properly present or preserve in the court of appeals. While SCOW has obliged the state’s plea, don’t get the idea that if you are representing a criminal defendant you, too, can fail to make and develop an argument in the court of appeals and get a second shot by raising it in a petition for review. Your client will have to be content with a Knight petition alleging ineffective assistance of appellate counsel.

As to the merits of the state’s resuscitated claim: The PFR doesn’t come out and say so, but Knox and Bowers say that a prosecutor doesn’t automatically cure a breach by simply retracting the wrong recommendation and replacing it with the bargained-for recommendation. For a correction to be effective, the state must both promptly acknowledge the error and take action that rectifies the error in a way that does not impair the integrity of the sentencing process by implying that greater punishment than provided for in the plea agreement is warranted. Bowers, 280 Wis. 2d 534, ¶¶9, 11-12; Knox, 213 Wis. 2d at 322-23. Nietzold’s response to the PFR notes various differences between his case and Knox and Bowers in terms of when the misstatement was corrected (after or before the state’s full sentencing argument, for instance) and the nature of the misstatement (asking for a lengthy prison term versus an additional six months) and argues these differences show the state didn’t do enough here to rectify its error. The supreme court will now get the opportunity the court of appeals did not have to apply the Knox and Bowers standard to the facts of this case.

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