Breach of Plea Agreement – Resentencing

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Robert K. Nietzold, Sr.,

Case No.: 2021AP21-CR

Officials: Blanchard, P.J., Kloppenburg, and Nashold.

Focus: Breach of Plea Agreement – Resentencing

Robert Nietzold pleaded no contest to and was convicted of repeated sexual assault of the same child. Under a plea agreement between the State and Nietzold, the prosecutor at sentencing could recommend a prison sentence but could not recommend any specific term of years. However, at the sentencing hearing the prosecutor made comments on the merits of the specific sentence recommendation of the Department of Corrections (the department) and separately recommended a specific term of imprisonment. Nietzold appeals the circuit court’s denial of his motion for a new sentencing hearing on the ground that this was a breach of the plea agreement. We conclude that the prosecutor’s sentencing recommendations constituted a material and substantial breach of the plea agreement and, accordingly, due to the errors by the State and through no fault of the circuit court, we reverse and remand to the circuit court for resentencing by a different judge.

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Derek A Hawkins is Corporate Counsel, at Salesforce.