State v. Samuel S. Mattioli

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.
September 2, 2021
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. 2020AP1209-CR Cir. Ct. No. 2018CF1683

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

SAMUEL S. MATTIOLI,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Dane
County: JILL KAROFSKY, Judge. Affirmed.

Before Kloppenburg, Fitzpatrick, 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. 2020AP1209-CR

¶1 PER CURIAM. Samuel Mattioli appeals a judgment of conviction
and an order denying his postconviction motion. Mattioli contends that the
prosecutor breached the plea agreement that called for a joint sentencing
recommendation, and that his counsel was ineffective by failing to object to the
breach. He argues that he is entitled to resentencing on that basis. For the reasons
set forth below, we conclude that the prosecutor did not breach the plea
agreement. We affirm.

¶2 Mattioli was charged with two counts of second-degree sexual
assault and one count of sexual assault of a child under sixteen years of age based
on three separate incidents with three separate victims. Pursuant to a plea
agreement, Mattioli pled guilty to an amended count of third-degree sexual
assault, and the other two charges were dismissed and read in for sentencing
purposes. Under the plea agreement, the parties agreed to jointly recommend a
sentencing disposition of twelve months in jail, and, further, that Mattioli would
be required to register as a sex offender for fifteen years.1 After the parties made
their sentencing arguments, the court rejected the joint sentencing
recommendation and imposed two years of initial confinement and five years of
extended supervision.

¶3 Mattioli moved for resentencing. He argued that the prosecutor
breached the plea agreement by making sentencing arguments that supported a
longer sentence than the joint recommendation, and that his counsel was
ineffective for failing to object to the breach. After a hearing, the circuit court

1
The parties originally agreed to jointly recommend probation with each party free to
argue as to conditional jail time. At sentencing, the parties informed the court they had reached a
new joint sentencing recommendation for a jail term of twelve months.

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No. 2020AP1209-CR

found that the prosecutor did not breach the plea agreement and therefore denied
Mattioli’s motion. Mattioli appeals.

¶4 Because Mattioli did not object to the prosecutor’s sentencing
comments, we review the alleged breach of the plea agreement under the rubric of
ineffective assistance of counsel. See State v. Naydihor, 2004 WI 43, ¶¶7-9, 270
Wis. 2d 585, 678 N.W.2d 220. To establish ineffective assistance of counsel, a
defendant must prove both deficient performance by counsel and prejudice
resulting from that deficient performance. See State v. Sholar, 2018 WI 53, ¶32,
381 Wis. 2d 560, 912 N.W.2d 89. The threshold question we address is whether
the prosecutor breached the plea agreement such that trial counsel’s performance
was deficient due to the failure to object. Id., ¶58 (failure to make a sufficient
showing on either prong of ineffective assistance of counsel claim is dispositive).

¶5 A defendant has a constitutional right to enforcement of a plea
agreement. State v. Williams, 2002 WI 1, ¶37, 249 Wis. 2d 492, 637 N.W.2d 733.
“A prosecutor who does not present the negotiated sentencing recommendation to
the circuit court breaches the plea agreement.” Id., ¶38. Moreover, a prosecutor
“‘may not render less than a neutral recitation of the terms of a plea agreement’”
so as to “covertly convey to the trial court that a more severe sentence is warranted
than that recommended.” Id., ¶¶42, 43 (quoted source omitted). A defendant
must establish a substantial and material breach by the prosecutor, that is, a
violation of the agreement that defeats the defendant’s benefit of the bargain. Id.,
¶38. Whether a prosecutor’s sentencing remarks breached the plea agreement is a
question of law that we review de novo. Naydihor, 270 Wis. 2d 585, ¶11.

¶6 Mattioli argues that the prosecutor breached the plea agreement by
interjecting his personal opinions about Mattioli’s character, covertly conveying to

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No. 2020AP1209-CR

the circuit court that a more serious sentence than the joint recommendation of
twelve months in jail was warranted. He points to the following comments, which
he characterizes as “pejorative and irrelevant personal opinions” that “addressed
none of the sentencing factors and can only be seen as undercutting the joint
recommendation”:

I think [the assault described by one of the victims] speaks
to the dehumanization of ... the defendant’s conduct and his
attitude towards [the victim].

....

[The lack of relationship between Mattioli and his victims
beforehand, Mattioli’s conduct, and the victims’ reactions]
all speak to the gravity of these offenses, and I think they
demonstrate the predatory nature of the defendant’s
behavior and the resulting pain and suffering that … he’s
caused to these victims.

....

Starting with the numbers -- the fact that there were not
only three victims in this case, but three different denials by
the defendant -- especially to law enforcement with no sign
... of apology or remorse -- I don’t think it speaks very well
of the defendant’s character.

....

I think [that] reflect[s] the defendant’s tendency to either
blame the victim or deflect or rationalize his behavior. ....
He says, quote, “please try to talk to her,” end quote, and I
think that reflects someone who’s immediately trying to
influence the victim and put pressure on her.

In another text, he said, quote: “this is ridiculous. I’m
done explaining. Nothing happened,” end quote. I think
that reflects a lack of acceptance of responsibility.

....

He lied about smoking marijuana. I don’t think that
reflects a very good character for truthfulness. He
describes the incident -- the assault, rather, of [one of the
victims] as being a lot of making out, which I think
minimizes his conduct.

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....

I don’t think that reflects ... a very good character for
acceptance of responsibility and trying to understand the
feelings ... of your victims.

....

And I think, perhaps, it was awkward, Judge, because it
was assault rather than consensual sexual activity, but I
think it demonstrates a rather flippant attitude towards
sexual activity, which is concerning.

....

I think that this suggests rather illogical thinking on the part
of the defendant, and I think it also suggests that it’s
somehow [one of the victim’s] fault -- what he did to her.

And, again, I don’t think that lying again about things like
drinking reflect very well on the defendant’s character for
truthfulness. When he explained the sex at that point, he
said, quote, “she was having a blast,” end quote. And when
Detective Wiza asked how did he know that, he replied that
she wasn’t dead. I think that’s a rather dehumanizing
response about a person that you claim to be having
consensual sexual activity with.

....

Even if that’s true, it really has nothing to do with whether
or not [the victim] consented to the sexual assault, and I
don’t think it reflects very well on the defendant’s manner
of thinking.

....

I think it’s also notable -- that he was not just having a beer
or two but is reported to have been consuming hard alcohol
in excessive amounts. I think that it -- at a minimum, it
reflects a lack of self-control and poor judgment.

....

I think that’s consistent with the defendant’s apparent
unwillingness to accept responsibility ... and, for example,
say that [the victim] was really enjoying it or really wanted
it.

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No. 2020AP1209-CR

I think that also speaks to the defendant’s rather sporadic
character.

....

And I think that’s very, very concerning, and I think it’s
part of the reason that he needs to be incarcerated for the
next year.

....

I think it shows a willingness to repeat the conduct with
different people even over a limited period of time.

¶7 Mattioli contends that, because the parties had reached a stipulated
sentencing recommendation with nothing left to argue, the prosecutor’s negative
personal opinions served no purpose other than to convey that the prosecutor
believed a more serious sentence was warranted. He argues that the prosecutor’s
personal opinions were inflammatory and created the impression that the
prosecutor was arguing against the negotiated plea agreement, citing Williams,
249 Wis. 2d 492, ¶48 (“The prosecutor’s declaration of her personal opinion
created the impression that the prosecutor was arguing against the negotiated
terms of the plea agreement.”).

¶8 According to Mattioli, the prosecutor then made explicit that the
State was recommending a longer sentence than the joint recommendation by
arguing as follows:

To conclude, Judge, I’m asking the Court to impose a
sentence that will keep these victims safe, keep the
defendant away from them so that they might find peace.
I’m asking the Court to pronounce a sentence that will
protect the rest of the female population here in Dane
County; less we forget that we are a university community
with many young and vulnerable female students.

I think the defendant needs to be removed from our
community for a -- significant period of time; and for
someone who’s never been incarcerated before, a year in
the Dane County Jail is no picnic and certainly no short

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No. 2020AP1209-CR

period of time. I think we should all be concerned about
the defendant’s conduct in the future if he is not
specifically deterred right now and … if this thinking
doesn’t change in the future. So for those reasons, Judge,
I’m asking the Court to adopt this recommendation.

¶9 Mattioli argues that the prosecutor’s arguments in this case are akin
to the prosecutor’s arguments that breached the plea agreement in United States v.
Heredia, 768 F.3d 1220 (9th Cir. 2014). In Heredia, the plea agreement called for
the government to recommend a sentence at the low end of the federal sentencing
guidelines. Id. at 1228. The Ninth Circuit concluded that the government
breached the plea agreement at sentencing “through its repeated and inflammatory
references to Morales’s criminal history.” Id. at 1232. The court explained that
“all of the aggravating factual information [provided by the government] had
already been provided to the district court,” and that “there was no reason to
believe that the district court was considering imposing a sentence less harsh than
the stipulated one.” Id. The court explained that, “given the opportunity to argue
for the low-end sentence it had promised to recommend, the government offered a
series of prejudicial ‘statements related to the seriousness of the defendant’s prior
record.’” Id. (quoted source omitted). The court concluded: “The central theme
of the government’s sentencing position was that Morales was a dangerous
recidivist who had spent twenty years flouting the law and menacing others.
Whether intentional or not, the government breached the plea agreement by
implicitly recommending a higher sentence than agreed upon.” Id. at 1232-33.
The court determined that, by the government’s breach, Morales was denied the
“united front” at sentencing that was his benefit of the bargain. Id. at 1231.

¶10 Mattioli argues that here, as in Heredia, there was no reason to
believe that the circuit court was considering imposing a lesser sentence than the
recommended one. He points to the court’s statements at the beginning of the

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No. 2020AP1209-CR

sentencing hearing that it was surprised by the joint sentencing recommendation
for a jail sentence without any period of post-confinement supervision in the
community. Mattioli contends that, by expressing surprise at the recommendation,
stating that the parties “may be able to persuade me otherwise,” and then
reiterating that the recommendation struck the court as “a very, very light
sentence,” the court made clear that it was not considering imposing a lesser
sentence than recommended. Mattioli argues that the prosecutor failed to address
the court’s concern regarding lack of supervision, and that the clear omission
implied that the State did not stand by the joint recommendation. According to
Mattioli, the State provided lip service to the agreement while clearly arguing for a
harsher sentence.

¶11 The State responds that the facts of Williams and Heredia are
distinguishable. It argues that here, the prosecutor followed the plea agreement by
presenting the joint sentencing recommendation to the circuit court and then
repeatedly confirming that the State was asking the court to impose that exact
sentence. The State highlights the following comments by the prosecutor: “I
think that the next year in jail followed by 15 years of sex offender registry is an
appropriate sentence for this individual”; “[Mattioli] needs to be incarcerated for
the next year”; and “a year in jail is no picnic and certainly no short period of
time.” The State points out that the prosecutor then concluded by stating: “So for
those reasons, Judge, I’m asking the court to adopt this recommendation.”

¶12 The State takes issue with Mattioli’s assertion that the prosecutor
breached the plea agreement by asking the court to remove Mattioli from the
community for “a significant period of time.” According to the State, the
prosecutor’s comment was an argument in favor of the joint recommendation—the
prosecutor expressly clarified that he meant twelve months, and argued that for

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No. 2020AP1209-CR

Mattioli, twelve months is “no short period of time.” The State contends that the
prosecutor was explaining why the State believed a jail term, rather than an
imposed and stayed sentence, was appropriate. The State argues that, because the
parties had agreed to recommend a sentence above the minimum, the prosecutor
was required to give the court reasons to impose twelve months in jail rather than
a shorter term. The State contends that the prosecutor’s comments on how the
prosecutor thought the facts of the case reflected on Mattioli’s character, even if
unnecessary, did not materially and substantially breach the plea agreement.

¶13 We conclude that the prosecutor’s statements at sentencing did not
breach the plea agreement. The prosecutor gave an opinion as to how the facts of
the case reflected negatively on Mattioli’s character in the context of arguing that
twelve months of incarceration was warranted. As the State concedes, the
prosecutor’s comments may have been “unnecessary.” However, we cannot say
that, as a matter of law, they crossed the line to a material and substantial breach
of the plea agreement.

¶14 We disagree with Mattioli that the prosecutor’s stated opinions of
Mattioli’s character were irrelevant and served only to undercut the plea
agreement. Contrary to Mattioli’s argument, the prosecutor did not engage in the
conduct described in Williams, 249 Wis. 2d 492, ¶48, where the prosecutor
“personalize[d] the information, adopt[ed] the same negative impressions as [the
author of the presentence investigation report] and then remind[ed] the court that
the [author] had recommended a harsher sentence than [the parties]
recommended.” Here, the prosecutor did not reference a lengthier sentence
recommendation and then adopt the opinions underlying that recommendation as
the prosecutor’s own. Rather, the prosecutor referenced the facts of the case and
stated how the prosecutor believed those facts reflected on Mattioli’s character in

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No. 2020AP1209-CR

the context of arguing why the State believed the court should impose twelve
months in jail. In contrast to Williams, where the prosecutor’s comments were
unnecessary to support the agreement to recommend the minimum sentence of
probation, the prosecutor here had to explain why twelve months of jail was
necessary, as opposed to a shorter jail term.2 In Williams, we noted that the facts
presented “a close question.” Id., ¶52. Here, the facts are not so close, and the
prosecutor’s negative opinions as to Mattioli’s character did not serve only to
undercut the plea agreement.3

¶15 We also are not persuaded that Heredia compels a different result.
Unlike Heredia, 768 F.3d at 1223, the prosecutor in this case did not “extend[] the
promise of a reduced prison term with one hand and [take] it away with the other.”
In Heredia, “[t]he prosecutor’s recommendation of a six-month prison term rang
hollow as he repeatedly and unnecessarily emphasized Morales’s criminal history,
adding for good measure his personal opinion that ‘defendant’s history

2
We acknowledge Mattioli’s contention that the prosecutor’s comments were
unnecessary in light of the circuit court’s statements indicating that it did not intend to impose a
lesser sentence than the recommended one. Nonetheless, the prosecutor was required to explain
why twelve months of incarceration was appropriate, as opposed to a lesser disposition.
3
In his reply brief, Mattioli argues that prior cases concluding that a prosecutor’s
negative comments at sentencing did not breach the plea agreement have relied on the lack of a
joint sentencing recommendation. See, e.g., State v. Naydihor, 2004 WI 43, ¶30, 270 Wis. 2d
585, 678 N.W.2d 220 (prosecutor’s negative comments did not breach the plea agreement
because the State was free to argue length and conditions of probation, and sentencing comments
were necessary to support State’s recommendation of “a lengthy period of probation with very
extensive conditions”). However, Mattioli does not cite any authority for the proposition that a
prosecutor is permitted to give a personal opinion as to the defendant’s negative characteristics
only if the plea agreement does not include a joint sentencing recommendation. Indeed, case law
holds that “the State may discuss negative facts about the defendant in order to justify a
recommended sentence within the parameters of the plea agreement” and “permits the State to
discuss aggravating sentencing factors and relevant behavioral characteristics of the defendant in
order to justify an unusual sentence recommendation within the constraints of the plea
agreement.” Id., ¶¶24, 25.

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No. 2020AP1209-CR

communicates a consistent disregard for both the criminal and immigration laws
of the United States.’” Id. (quoted source omitted). Here, by contrast, the
prosecutor argued that the joint recommendation of twelve months in jail was
warranted, as opposed to probation or a shorter jail term, based on the facts of this
case and how the prosecutor believed those facts reflected on Mattioli’s character.
The prosecutor did not agree to argue for a “reduced” sentence, yet posit that
Mattioli had a criminal history that communicated a consistent disregard for the
laws of the United States. The facts in Heredia are distinguishable on that basis.

¶16 We conclude that, here, the prosecutor’s comments are more
accurately interpreted as providing justification for the recommended sentence, as
opposed to suggesting that a more severe penalty was warranted. We therefore
conclude that the prosecutor did not breach the plea agreement.4 We affirm.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5. (2019-20).

4
Because we conclude that the prosecutor did not breach the plea agreement, we need
not reach the parties’ arguments as to whether trial counsel was ineffective by failing to object to
a purported breach.

11