Pursuant to the plea agreement, the state agreed to “not recommend a specific term of imprisonment.” At sentencing, the state argued for 27 years imprisonment, consisting of 12 years initial confinement and 15 years extended supervision. Nietzold objected, was denied a postconviction motion hearing in the circuit court, but the court of appeals reversed and ordered resentencing before a different judge. Now, a unanimous Wisconsin Supreme Court holds that the state “cured” its undisputed material and substantial breach because the prosecutor “acknowledged the blunder and modified the State’s recommendation to an undefined prison term-exactly what Nietzold agreed to.” (Opinion, ¶14).
Relying on a principle from contract law that “mere technical breaches are generally not enough to afford a remedy,” the court holds that “some breaches can be cured” and that the prosecutor cured the breach in this case. (Opinion, ¶¶9-10). However, the basis for that holding is shaky. First, the court cites a SCOTUS case that “rejected the notion that an initial error – for example, ‘requesting a higher sentence than agreed upon’ – is uncurable.” (Opinion, ¶9) (citing Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 1431-32 (2009). Puckett, however, concerned the doctrine of plain error and whether an objection from the defendant is necessary to preserve the claim for appeal. While the Court noted that “some breaches may be curable upon timely objection,” the case itself did not concern an attempt to “cure” an undisputed and material and substantial breach of the defendant’s plea agreement. See Puckett, 129 S. Ct. at 1431-32.
As is already clear under Wisconsin law, a failure to object to an alleged breach of the plea agreement means the claim is waived and must be pursued through the prism of ineffective assistance of counsel. See State v. Bokenyi, 2014 WI 61, ¶3, 355 Wis. 2d 28, 848 N.W.2d 759. Because Nietzold objected at sentencing, there was no dispute about waiver, plain error, or ineffective assistance of counsel. The only issue in disputed was whether the prosecutor “cured” the clear breach.
Second, the court likewise relies on State v. Smith, 207 Wis. 2d 258, 272-73, 558 N.W.2d 379 (1997), for the principle that “some breaches can be cured.” However, Smith, like Puckett, focused on the defendant’s failure to object to the state’s breach at sentencing. As in Puckett, the Smith court noted that the state’s breach was not “remedied” because Smith failed to object. Id. From this, the court concludes that “had the prosecutor been alerted to the error and corrected it, the initial breach may have been cured.” (Opinion, ¶10).
Third, assuming that “some breaches can be cured,” the real question is very fact dependent on the full context of the prosecutor’s breach and whether the attempt to “cure” actually remedied the breach of the plea agreement. After simply summarizing the main events at sentencing: a material and substantial breach, a timely objection, an acknowledgment of the “blunder” and “errant remarks,” and a modification of the sentencing recommendation from 27 years to an “undefined prison term,” the court holds that the prosecutor sufficiently cured the breach and “Nietzold received what he bargained for: the State recommended a prison term but not a specific length of time.” (Opinion, ¶14).
So, where the defendant’s plea was contingent on the state recommending no specific term of imprisonment and the prosecutor indisputably commits a material and substantial breach, the prosecutor “cures” the breach by simply correcting the “blunder” and modifying the 27-year prison recommendation to an “undefined term.” Recall, a breach is material and substantial when it defeats the benefit for which the accused bargained. See State v. Naydihor, 2004 WI 43, ¶¶10-11, 270 Wis. 2d 585, 678 N.W.2d 220. Once the state recommended a specific (and lengthy) prison sentence, how does a mere retraction and apology cure the breach? The defendant immediately lost the benefit for which he bargained: that the court would not hear a exactly how much imprisonment the prosecutor thought defendant deserved.
At oral argument, Justice Hagedorn, who authored the unanimous opinion, compared the breach and the prosecutor’s attempt to cure to a curative instruction at trial: if we trust juries to disregard inadmissible evidence, why can’t we trust judges to disregard a sentencing recommendation that materially and substantially breached the plea agreement so long as the breach is objected to and the prosecutor “acknowledges” the blunder and retracts or corrects the recommendation? The focus on the impact on the trial court judge is misplaced because Santobello v. New York, 404 U.S. 257, 262 (1971), makes clear that the focus is on the prosecutor’s comments, not the court’s. See Opinion, ¶15). Nevertheless, the decision purports to focus not on the impact of the breach upon the court, but upon the prosecutor’s actions, who the court concludes never raised doubts regarding the wisdom of the terms of the plea agreement. (Opinion, ¶16).
As a practice note, during oral argument multiple justices appeared to recognize that the position taken by the state might force defense attorneys to weigh whether it is actually in their client’s best interest to object to a breach of the plea agreement at sentencing. While failing to object forces the defendant to raise the claim through the lens of ineffective assistance of counsel, and raises the specter or “gamesmanship,” objecting to a breach provides the prosecutor with an opportunity to “cure” the breach in a way that the defense may not believe actually remedies the breach. Consider this exchange between Justice Dallet and the assistant attorney general representing the state at oral argument: “So, counsel, you do agree that if the defense attorney here had not said anything at all, this defendant would have received either a new sentencing or been able to withdraw his plea? AAG: Yep, that’s right.” (See Wisconsin Eye at the 55:20 mark).