On Point: 8. Plea bargain breach

State v. Donaven C. Sprague, 2022AP876-CR, 5/20/25, District III (not recommended for publication), case activity

In the second defense win this week on appeal from a Barron County conviction (see Wooldridge), the COA vacated Donaven Sprague’s sentence to 10 years of initial confinement for repeated sexual assault of a child because the State breached its plea agreement to recommend no more than 5 years of initial confinement and did not cure the breach.  The Court also found that Sprague received ineffective assistance of counsel because trial counsel did not inform him that resentencing before a different judge was a remedy for the State’s breach.  The Court remanded the case directing the circuit court to schedule a resentencing for Sprague before a different judge.

State v. Robert K. Nietzold, Sr., 2023 WI 22, 03/28/2023, reversing an unpublished court of appeals opinion; case activity (including briefs)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. Jamie Lee Weigel, 2022 WI App 48; case activity (including briefs)

In Wisconsin criminal law, the word “sentence” is sometimes used generically to include probation; other times it’s used in a technical sense to refer only to imprisonment, and thus excludes probation. See, e.g., State v. Fearing, 2000 WI App 229, ¶6, 239 Wis. 2d 105, 619 N.W.2d 115. In this case the state attempts to defend its breach of a plea agreement by saying its agreement to cap its “sentence” recommendation referred to the technical meaning of “sentence,” and thus allowed it to also make a recommendation for consecutive probation. The court of appeals isn’t persuaded.

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?

State v. Nietzold, 2021AP21-CR, 12/9/21, District 4 (not recommended for publication), petition for review granted 4/13/22; case activity (including briefs)

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.

State v. Desmond Myers LaPean, 2019AP1448, 7/14/20, District 3 (not recommended for publication); case activity (including briefs)

LaPean pleaded to a sexual assault of a child with an agreement that the state would cap its recommendation at 10 years of initial confinement and 10 of extended supervision. But at sentencing, the state first recommended 12 and 12. After defense counsel’s objection, the state instead requested 10 and 14. Counsel didn’t notice the second breach, but the prosecutor eventually did, telling the court the agreement was for 10 and 10. The court gave 12 and 10.

State v. Pierre Deshawn Johnson, 2018AP595-CR, 2/12/19, District 1 (not recommended for publication); case activity (including briefs)

Johnson pled to operating a vehicle with a suspended license and injury by operating under the influence of a controlled substance. His lead issue–whether the victim’s failure to wear a seatbelt was a significant intervening factor that diminished his culpability and warranted a new sentence–failed based on State v. Turk, 154 Wis. 2d 294, 453 N.W.2d 163.

If you missed the recent post on plea agreements as “constitutional contracts,” you might want to take a look at it now. In the comment section you’ll find the Bills bantering about how such an argument would play out in the trial courts AND ALSO a comment by Colin Miller, the professor who wrote the law review article at issue, reacting to the Bills’ banter. Click here for the post and comments.

Attorneys litigating the breach of a plea agreement might want to take a look at this new paper, Plea Agreements as Constitutional Contracts, by Professor Colin Miller of the University of South Carolina Law School. It highlights some interesting issues to raise on behalf of our clients–issues that could well make their way to SCOTUS. It seems Bill Tyroler was ahead of Professor Miller though. Years ago he did two posts regarding Wisconsin cases,