On Point: i. Plea bargain breach

State v. Robert K. Nietzold, Sr., 2023 WI 22, 03/28/2023, reversing an unpublished court of appeals opinion; case activity (including briefs)

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).

State v. Jeremy Joseph Hamilton, 2022AP1350-CR, District 2, 03/01/2023, (one-judge decision, ineligible for publication) case activity

Some readers of this decision might find themselves wondering why there’s no equivalent to baseball’s “tie goes to the runner” rule in criminal appeals. Others might find themselves researching the rule of lenity. However, it turns out there is no such rule in baseball, and the rule of lenity only assists defendants as a canon of statutory construction where a “grievous ambiguity” exists. See State v. Guarnero, 2015 WI 72, ¶26, 363 Wis. 2d 857, 867 N.W.2d 400; see also State v. Williams, 2002 WI 1, ¶19, 249 Wis. 2d 492, 637 N.W.2d 733 (rejecting a “close case” rule which would favor criminal defendants in breach of plea claims). As the court of appeals puts it: “…this is a very, very close case…[but] even close cases have to be decided one way or another…” (Opinion, ¶14).

State v. Nelson Luis Fortes, 2015 WI App 25; case activity (including briefs)

A “misunderstanding” about what sentence the state could recommend under the plea agreement did not entitle Fortes to plea withdrawal or resentencing because after the misunderstanding became evident at the sentencing hearing, Fortes elected to proceed rather than seek an adjournment with a possible eye toward plea withdrawal.

State v. Laurence W. Tucker, 2012 WI App 67 (recommended for publication); for Tucker: Robert T. Ruth; case activity

Tucker pleaded guilty pursuant to plea bargain, which terms included continuation of his release on bond and compliance with same. After Tucker failed to appear at sentencing, necessitating his arrest on a bench warrant and issuance of a new charge of bail jumping, the State informed counsel it was no longer bound by the agreement,

State v. Christina L. Contizano, 2011AP477-CR, District 4, 10/27/11

court of appeals decision (1-judge, not for publication); for Contizano: Robert C. Howard III; case activity

At Contizano’s sentencing for obstructing, based on lying to the police about her daughter’s location, the trial court didn’t erroneously exercise discretion in allowing Contizano’s ex-husband to advocate as a “victim” of the offense, in favor of a term of incarceration.

¶7        We conclude the court did not erroneously exercise its discretion when it considered the Walworths’ statements at sentencing.  

State v. Mark Allan Campbell, 2011 WI App 18; for Campbell: Steven D. Phillips, SPD, Madison Appellate; Campbell BiC; State Resp.; Reply

(Sentencing issue in the case discussed separately, here.)

Plea Bargain – Breach

The plea agreement required the prosecutor to recommend a 20-year sentence, comprised of 5-7 years’ confinement and the balance on extended supervision,

State v. Christopher Jones, 2009AP2761-CR, District 1, 9/28/10

court of appeals decision (3-judge, not recommended for publication); for Jones: Jeremy C. Perri, SPD, Milwaukee Appellate; BiC; Resp.; Reply

The court rejects a claim of an “end-run” around the plea bargain, which limited the State’s recommendation to 10 years imprisonment while leaving the “configuration” of confinement and supervision to judicial discretion, based on prosecutorial comments:

• the “whole matter was “aggravated by the defendant’s record,”

court of appeals decision; for Duckett: Michael K. Gould, SPD, Milwaukee Appellate; BiC; Resp. Br.; Reply Br.

Guilty Pleas – Breach – Lack of Contemporaneous Objection
Failure to object contemporaneously forfeits right of review of subsequently-asserted plea bargain breach. The issue therefore is reviewable only “in the context of a claim for ineffective assistance of counsel,” ¶6.

The court is fond of making this pronouncement,

State v. Michael A. Grindemann, 2002 WI App 106, PFR filed 5/23/02
For Grindemann: Leonard D. Kachinsky

Issue/Holding:

¶27 … Here, Grindemann did object to the prosecutor’s mention of uncharged offenses at sentencing, but the objection was based on the lack of evidence ‘properly before the court,’ not on any claim that the State was violating either the terms or the ‘spirit’ of the plea agreement.

State v. David W. Oakley, 2001 WI 103, 629 N.W.2d 308, reconsideration denied, 2001 WI 123, affirming unpublished decision of court of appeals
For Oakley: Timothy T. Kay

Issue: Whether a claim of plea bargain error was waived by a subsequent renegotiation of the plea bargain and entry of no contest plea on that new agreement.

Holding:

¶23  As this court has previously stated,