State v. Todd Charles Gronseth

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 6, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP727-CR Cir. Ct. No. 2016CF200

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TODD CHARLES GRONSETH,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Douglas County: GEORGE L. GLONEK, Judge. Affirmed.

Before Fitzpatrick, P.J., Blanchard and Graham, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2018AP727-CR

¶1 PER CURIAM. Todd Gronseth appeals a judgment of conviction
and an order denying his motion for postconviction relief. The issues relate to
plea withdrawal and sentencing. We affirm.

¶2 Gronseth pled no contest to one count of first-degree sexual assault
of a child and several other felonies. One term of the plea agreement was that the
State would ask the court to order that a psychosexual evaluation of Gronseth be
prepared before sentencing. The State made such a request at the plea hearing,
and the court ordered the evaluation to be done as part of the presentence
investigation report.

¶3 Later, before sentencing, the court issued an order vacating the order
for the evaluation. The court stated that it “has just recently been advised” by an
unstated source and method that “Douglas County would be responsible for
payment of the psycho-sexual evaluation.” The order continued “this court does
not believe that Douglas County should bear the cost of the psycho-sexual
evaluation since it is likely being done for the benefit of the Wisconsin
Department of Corrections.” The court noted that the Department will bear the
cost of the evaluation if the court orders the evaluation at sentencing as a condition
of probation or extended supervision.

¶4 Gronseth’s attorney did not object to this order. The court later
acknowledged that the information it received from the Department that the
county would be required to pay was incorrect, and that the Department would
have paid for the evaluation.

¶5 After sentencing, Gronseth moved to withdraw his plea on the
ground that it was not made knowingly, voluntarily, and intelligently because the
circuit court did not advise him that it “might not order a presentence

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No. 2018AP727-CR

psychosexual evaluation as contemplated in the plea agreement,” and Gronseth did
not understand that it might not. The court denied that motion and Gronseth
appealed.

¶6 On appeal, Gronseth argued that the circuit court did not comply
with its duty to advise him during the plea colloquy that the court was not bound
by the plea agreement. The State conceded that the court did not comply with that
duty, and we remanded under WIS. STAT. § 808.075 (2017-18)1 for an evidentiary
hearing at which the State would have the burden to prove that Gronseth
understood that point.

¶7 The circuit court held that hearing and found that the State proved
Gronseth’s understanding. Gronseth filed a statement of objections to that ruling
under WIS. STAT. § 808.075(8) that we construed as a supplemental appellant’s
brief, and we ordered further supplemental briefing, which we have received. We
now decide the issues addressed in both the supplemental and original briefing.2

¶8 Gronseth argues that the circuit court erred in finding that the State
proved by clear and convincing evidence that he understood that the court was not
bound by the part of the plea agreement requiring the State to ask the court to

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
2
In the circuit court’s decision on remand, the court asked that we reconsider our
acceptance of the State’s concession that the circuit court did not comply with a required duty to
advise Gronseth that it was not bound by the plea agreement. We appreciate the circuit court’s
analysis suggesting that this duty is limited to cases in which there is a charge or sentencing
concession that must be approved by the court, and therefore would not include the request for a
psychosexual evaluation. However, we are unable to reconcile that analysis with the supreme
court’s description of the duty as existing in “every case where there has been a plea agreement.”
State v. Brown, 2006 WI 100, ¶35, 293 Wis. 2d 594, 716 N.W.2d 906.

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No. 2018AP727-CR

order a psychosexual evaluation. The court’s finding was based mainly on the
language of the plea questionnaire and the court’s credibility assessment of
Gronseth’s testimony. The key sentence in the questionnaire stated: “I understand
that the judge is not bound by any plea agreement or recommendations and may
impose the maximum penalty.”

¶9 On appeal, Gronseth argues that it was reasonable for him to
interpret that sentence as expressing the concept that the judge was not bound by
any agreement or recommendations regarding the penalty, but not as expressing
the concept that the judge is not bound by non-penalty recommendations like the
one for an evaluation.

¶10 However, whether such an interpretation would have been
reasonable is not the question. The question is whether it was clearly erroneous
for the court to disbelieve Gronseth’s assertion that this was actually the
interpretation that he held at the time of the plea. Gronseth fails to persuade us
that the circuit court clearly erred in making this credibility determination.

¶11 Gronseth also argues that the court misinterpreted testimony by his
trial counsel about the extent to which Gronseth and his counsel discussed whether
the court would be free to disregard the recommendation for a psychosexual
report. However, the court’s interpretation that counsel and Gronseth discussed
not just the court’s freedom to impose maximum penalties, but also discussed that
provision of the plea questionnaire generally, was at least reasonable, and not
clearly erroneous.

¶12 Gronseth next argues that his trial counsel was ineffective by not
objecting to breaches of the plea agreement by the State and the circuit court. The

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No. 2018AP727-CR

circuit court denied this claim on the ground that there was no breach of the plea
agreement.

¶13 Gronseth argues that the State breached the plea agreement when the
Department of Corrections informed the court that the county would be required to
pay for the evaluation. He argues, without citation to legal authority, that the
Department is barred from breaching the plea agreement just as the prosecution is.
However, without authority or a developed argument, we decline to consider
further whether conduct of the Department can be considered a breach of a plea
agreement.

¶14 Furthermore, it is not clear how the Department’s providing
information to the court would be a breach of the plea agreement. It was simply
an assertion of fact. That statement did not prevent the court from leaving the
order for the evaluation in place or otherwise compel an amendment to the order.
The decision to forego the evaluation was the court’s, not the Department’s, and
there is no suggestion that the Department recommended or advocated that it be
canceled.

¶15 Gronseth also argues that the circuit court breached the plea
agreement. Gronseth cites no authority holding that a circuit court is bound by a
plea agreement.

¶16 Gronseth argues that he was not sentenced on the basis of
“complete” information because the psychosexual evaluation was not performed.
However, the citation he provides for the proposition that “complete” information
is required does not use that word, and does not say that a sentence must be
vacated if the information is not complete. Instead, that passage states only that a
defendant has a right to object to “incorrect or incomplete information contained

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No. 2018AP727-CR

within the [presentence investigation report].” See State v. Greve, 2004 WI 69,
¶27, 272 Wis. 2d 444, 681 N.W.2d 479.

¶17 Gronseth does not explain what measure we should use to determine
when sentencings are based on incomplete information. All sentencings are, in
some sense, necessarily based on less than complete information. More
specifically, here Gronseth argues that the evaluation would have provided more
complete and accurate information about his psychosexual condition, the potential
efficacy of sex offender treatment, and the risk he posed to the public. While all
of these things may be true, Gronseth has not shown that any of that information
would be in his favor at sentencing. He has not provided such an evaluation to the
court for postconviction purposes. Therefore, we conclude that he has not shown
a basis for resentencing.

¶18 Finally, Gronseth asks that we order resentencing under our
discretionary power of reversal provided in WIS. STAT. § 752.35. Assuming,
without deciding, that such an order is within our authority under that statute, we
deny that request. As we stated, Gronseth has not given us a basis to conclude that
a different result would occur.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

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