COURT OF APPEALS

DECISION

DATED AND FILED

February 6, 2020

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

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

2

¶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 
No. 2018AP727-CR

3

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)1for 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. 
No. 2018AP727-CR

4

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 
No. 2018AP727-CR

5

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 
No. 2018AP727-CR

6

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.