author: DYKMAN, P.J.

text:
    State of Wisconsin ex rel. Curtis Steldt, Jr., Petitioner-Appellant, v. Gary R. McCaughtry, Warden, and Jon Litscher, Secretary, Department of Corrections, Respondents-Respondents. [Case No. 99-2000] State of Wisconsin ex rel. Robert A. Pond, Petitioner-Appellant, v. Jon E. Litscher, Secretary, Department of Corrections, Respondent-Respondent. [Case No. 99-2001] State of Wisconsin ex rel. Willie McKinley, Petitioner-Appellant, v. Ken Sondalle, Superintendent, Respondent-Respondent. [Case No. 99-2110]
    Court of Appeals

      Nos. 99-2000, 99-2001, 99-2110.

      Submitted on briefs March 3, 2000.

    Decided July 27, 2000.

    2000 WI App 176
    (Also reported in 617 N.W.2d 201.)

      On behalf of the petitioner-appellant, Curtis Steldt, Jr., the cause was submitted on the briefs of Curtis Steldt, Jr., pro se, of Waupun.
    On behalf of the petitioner-appellant, Robert A. Pond, the cause was submitted on the briefs of Mark S. Rosen of Rosen andHolzman of Waukesha.
    On behalf of the petitioner-appellant, Willie McKinley, the cause was submitted on the brief of Willie McKinley, pro se, of Portage.
    On behalf of the respondents-respondents, Gary R. McCaughtry and Jon Litscher, the cause was submitted on the briefs of James E. Doyle, attorney general, and Stan Davis, assistant attorney general.
    On behalf of the respondent-respondent, Ken Sondalle, the cause was submitted on the brief of James E. Doyle, attorney general, and Michael D. Oeser, assistant attorney general. „
    Before Dykman, P.J., Eich and Roggensack, JJ.
   DYKMAN, P.J.

¶ 1. Curtis Steldt, Jr., Robert A. Pond, and Willie McKinley appeal from orders dismissing their petitions for certiorari review of prison disciplinary committees' decisions. The circuit court found that Steldt, Pond, and McKinley failed to comply with the forty-five-day filing deadline. They argue that the trial court erred by concluding that, even though the clerk of courts received the petitions within the required forty-five days, the petitions could not be considered filed until the clerk either received the filing fee or a waiver of fees was granted. We agree that prisoners seeking to petition for certiorari review without payment of the filing fees due to indigency should not be prejudiced by delays in obtaining a fee waiver or making the appropriate payments over which the prisoners have no control. Therefore, we reverse and remand with directions to reinstate Steldt's, Pond's, and McKinley's certiorari actions.

I. Background

¶ 2. We consolidated these appeals because each involves similar fact patterns giving rise to application of the forty-five-day time limit for filing a petition for a writ of certiorari adopted by the Prisoner Litigation Reform Act (PLRA). See WlS. STAT. §893.735(2) (1997-98); 1997 Wis. Act 133, § 38. Section 893.735 provides, in part:

(2) An action seeking a remedy available by certiorari made on behalf of a prisoner is barred unless commenced within 45 days after the cause of action accrues. The 45-day period shall begin on the date of the decision or disposition, except that the court may extend the period by as many days as the prisoner proves have elapsed between the decision or disposition and the prisoner's actual notice of the decision or disposition. Subject to no contact requirements of a court or the department of corrections, a prisoner in administrative confinement, program segregation or adjustment segregation may communicate by 1st class mail, in accordance with department of corrections' rules or with written policies of the custodian of the prisoner, with a 3rd party outside the institution regarding the action or special proceeding.
(3) In this section, an action seeking a remedy available by certiorari is commenced at the time, that the prisoner files a petition seeking a writ of certiorari with a court.

¶ 3. The adjustment committee at the Waupun Correctional Institution found Steldt, an inmate, guilty of several disciplinary offenses. The corrections complaint examiner recommended dismissal of Steldt's complaint that his disciplinary hearing violated due process because it was held beyond the twenty-one-day time limit established in Wis. Admin. Code § DOC 303.76(3). On September 1, 1998, the Secretary of the Department of Corrections accepted the complaint examiner's recommendation and dismissed Steldt's complaint. Steldt claims that he did not receive the Secretary's decision until September 16, 1998, as evidenced by a date stamp on the copy of the decision in the record.

¶ 4. Assuming that Steldt did not receive the Secretary's decision until September 16,- his forty-five-day period to file his certiorari action ended on October 31, 1998. See Wis. Stat. § 893.735(2). On October 15,1998, Steldt's petition for a writ of certiorari was received by the clerk of the Dodge County Circuit Court. The clerk did not file the petition that day, but date stamped the petition and accompanying documents indicating they were "Received Oct 15 1998." With his petition, Steldt included a petition for a fee waiver and an affidavit of indigency, a copy of his prison trust account statement, a form order for the trial court to complete regarding his fee waiver, and an authorization to withhold money from Steldt's prison account. On November 4,1998, the trial court completed and signed the form order, denying Steldt's petition for the fee waiver because his prison account contained $130.47 and the fee for a petition for a writ of certiorari was only $122. Apparently, the $122 fee was paid on December 2,1998, because the clerk stamped Steldt's petition as filed on that date. On June 21,1999, the trial court ordered that Steldt's petition be dismissed and the writ of certiorari quashed because Steldt's petition was not filed until the court received the filing fee on December 2,1998, beyond the forty-five-daytime limit. Steldt appeals.

¶ 5. Pond, also an inmate at Waupun Correctional Institution, filed an inmate complaint contending that he was being excluded from a "step program" that allows inmates to move from program segregation to the general population of the prison. On November 4, 1998, the Secretary accepted the complaint examiner's recommendation to dismiss Steldt's complaint.

¶ 6. Pond's forty-five-day period to file a petition for a writ of certiorari regarding the Secretary's decision ended on December 19, 1998. A date stamp on Pond's petition indicates that the clerk of courts for Dodge County received it on December 14, 1998. On January 6, 1999, the trial court signed a form order granting Pond's petition for a fee waiver provided that Pond pay $4.82, the balance of Pond's prison trust account, within thirty days. Pond apparently made this payment because the clerk stamped his petition for a writ of certiorari as filed on February 4, 1999. On April 28, 1999, the State moved to quash the writ of certiorari, arguing that Pond had not filed his petition within the forty-five-day time limit. On June 30,1999, the trial court granted the motion, dismissing Pond's petition and quashing the writ. The court concluded that Pond had not filed his petition until February 4, 1999. Pond appeals.

¶ 7. McKinley is currently an inmate at Columbia Correctional Institution. While he was confined at Fox Lake Correctional Institution, the adjustment committee found McKinley guilty of possessing intoxicants. In his petition for a writ of certiorari, McKinley stated that the warden at Fox Lake affirmed the committee's decision on October 26, 1998. Thus, McKinley's forty-five-day period to file a certiorari action ended on December 11, 1998. The clerk of courts for Dodge County apparently received McKinley's petition for a writ of certiorari on November 30, 1998, as indicated by a date stamp stating "Received Nov 30 1998." McKinley claims that he submitted a proposed order for a fee waiver at the same time. While there is no evidence to directly support his claim, on December 23, 1998, the trial court signed a form order denying McKinley's petition for a fee waiver because McKinley's "accounts show a balance of $560.66." McKinley submitted the $122 in fees and the clerk of courts stamped his petition for a writ of certiorari as filed on January 19, 1999. On June 14, 1999, the State moved to quash the writ, arguing that McKinley had exceeded the forty-five-day time limit for filing his petition. On July 14, 1999, the trial court granted the motion, concluding that McKinley had not filed his petition until January 19,1999. McKinley appeals.

II. Analysis

¶ 8. A prisoner petitioning for a writ of certiorari can request a fee waiver on the grounds of indigency under WlS. STAT. § 814.29(lm). With his or her request, the prisoner must submit an affidavit of indi-gency and a certified copy of his or her trust fund account statement. See § 814.29(lm)(b). The trial court must determine whether the prisoner has insufficient assets to pay the fees and the prisoner must authorize the prison to make payments toward the fees from his or her account each time the amount in the account exceeds $10. See § 814.29(lm)(c). If both conditions are met, the trial court must issue an order allowing the prisoner to commence the action without prepayment of the fees. See id. If the prisoner has assets in his or her trust account, the court must order the prisoner to pay as much of the filing fee as is available in the account before commencing the action. See § 814.29(lm)(d).

¶ 9. Steldt, Pond, and McKinley (appellants) argue that their petitions for writs of certiorari and requests for fee waivers were "filed" in compliance with the forty-five-day deadline at the time the clerk of courts for Dodge County received them. The appellants point out that, once the clerk receives a prisoner's petition for a writ of certiorari and request for a fee waiver, the clerk must forward the fee waiver to the trial court for consideration. The prisoner has no control over the time between when the clerk receives the fee waiver request and when the trial court issues an order either allowing the prisoner to proceed without prepayment of the fees or requiring the prisoner to pay all or part of the fee from his or her prison trust account. Thus, the appellants argue that a prisoner's petition for a writ of certiorari should be filed when the clerk receives it along with the request for a fee waiver. In the alternative, the appellants argue that the forty-five-day time limit should be tolled to allow for the time it takes for the court to consider the request for a fee waiver and issue an appropriate order.

¶ 10. The State contends that a prisoner's petition for a writ of certiorari should not be considered filed for purposes of WlS. Stat. § 893.735 until the clerk receives the filing fee. The State points out that Wis. Stat. § 59.40(3)(a) provides that "[t]he clerk of the circuit court shall collect the fees that are prescribed in ss. 814.60 to 814.63. The clerk may refuse to accept any paper for filing or recording until the fee prescribed in subch. II of ch. 814 or any applicable statute is paid." Thus, the State argues that the clerk has the discretion to refuse to file a prisoner's petition for a writ of certio-rari until the prisoner pays the filing fee or obtains a court order waiving the fees.

¶ 11. To determine the point at which a petition for a writ of certiorari is filed for purposes of satisfying the forty-five-day deadline, we must interpret and apply Wis. Stat. §§893.735, 814.29(lm), and 59.40(3)(a). The interpretation and application of statutes present questions of law that we review de novo. See State v. Hughes, 218 Wis. 2d 538, 543, 582 N.W.2d 49 (Ct. App. 1998). When we interpret a statute, our purpose is to ascertain the intent of the legislature and give it effect. See State ex rel. Frederick v. McCaughtry, 173 Wis. 2d 222, 225, 496 N.W.2d 177 (Ct. App. 1992). Our first step is to examine the language of the statute and, absent ambiguity, give the language its ordinary meaning. See id. at 225-26. If the language is ambiguous, we examine the scope, history, context, subject matter, and purpose of the statute in order to determine the legislative intent. See id. at 226. "Statutory language is ambiguous if reasonable people could disagree as to its meaning." Id. Ambiguity can be found in the words of a statutory provision itself, or in the words of the provision "as they interact with and relate to other provisions in the statute and to other statutes." State v. Sweat, 208 Wis. 2d 409, 416, 561 N.W.2d 695 (1997).

¶ 12. The applicable provisions of Wis. Stat. §§ 893.735 and 59.40(3) are unambiguous when considered alone. Section 893.735(2) clearly provides that a prisoner is barred from bringing a certiorari action unless it is "commenced within 45 days after the cause of action accrues." Section 893.735(3) explains that a certiorari action "is commenced at the time that the prisoner files a petition seeking a writ of certiorari with a court." (Emphasis added). Finally, § 59.40(3) unambiguously gives a circuit court clerk the "discretion to refuse to accept for filing any paper without payment of the prescribed filing fee." Giese v. LIRC, 153 Wis. 2d 212, 214, 450 N.W.2d 489 (Ct. App. 1989).

¶ 13. However, we conclude that the applicable provisions of Wis. Stat. §§ 893.735 and 59.40(3) are ambiguous in their relationship with Wis. Stat. § 814.29(lm). Under § 893.735, a prisoner must file a petition for a writ of certiorari within forty-five days after the cause of action accrues. It is also clear that, under § 59.40(3), the clerk of circuit court may refuse to file any paper without the appropriate filing fee. It is not clear from the language of those statutes, however, whether the legislature intended to require a prisoner requesting a fee waiver for his or her certiorari action to still submit the required fee within the forty-five days. As the State poiiits out, it might be reasonable to conclude that the legislature intended the three statutes to work together such that a prisoner must either submit the required fee or obtain an order waiving fees within the forty-five days. However, it could also be reasonably argued that the legislature did not intend to hold indigent prisoners to a more strict standard than prisoners who could afford to pay their filing fees. Under the State's interpretation, an indigent prisoner who had to request and await a court order waiving the fees would effectively have less time to file than a prisoner who could simply pay the fees at the time he or she filed a petition for writ of certiorari. Since the intent of the legislature regarding the relationship of these three statutes is not clear from their language, we must extend our analysis.

¶ 14. In Houston v. Lack, 487 U.S. 266 (1988), the Supreme Court addressed the difficulties prisoners face in meeting filing deadlines. In Houston, the Court held that a pro se prisoner's notice of appeal in the federal court system was considered filed at the time the prisoner delivered it to prison authorities to be mailed to the court clerk. Id. at 276. The Court explained:

[Pro se] prisoners cannot take the steps other litigants can take to monitor the processing of their notices of appeal and to ensure that the court clerk receives and stamps their notices of appeal before the 30-day deadline. Unlike other litigants, pro se prisoners cannot personally travel to the courthouse to see that the notice is stamped "filed" or to establish the date on which the court received the notice. Other litigants may choose to entrust their appeals to the vagaries of the mail and the clerk's process for stamping incoming papers, but only the pro se prisoner is forced to do so by his situation. And if other litigants do choose to use the mail, they can at least place the notice directly into the hands of the United States Postal Service (or a private express carrier); and they can follow its progress by calling the court to determine whether the notice has been received and stamped, knowing that if the mail goes awry they can personally deliver notice at the last moment or that their monitoring will provide them with evidence to demonstrate either excusable neglect or that the notice was not stamped on the date the court received it. Pro se prisoners cannot take any of these precautions; nor, by definition, do they have lawyers who can take these precautions for them. Worse, the pro se prisoner has no choice but to entrust the forwarding of his notice of appeal to prison authorities whom he cannot control or supervise and who may have every incentive to delay. No matter how far in advance the pro se prisoner delivers his notice to the prison authorities, he can never be sure that it will ultimately get stamped "filed" on time.

Id. at 270-71. Unlike Houston, we do not address the situation of a prisoner whose notice of appeal or petition may not have been received by the clerk of courts within the applicable time period. See id. at 268-69. The records in appellants' cases demonstrate that the clerk of courts received their petitions within the forty-five-day deadline. However, a prisoner seeking a fee waiver in a certiorari action faces many of the same difficulties as the prisoner in Houston.

¶ 15. As the Court explained in Houston, prisoners seeking to file legal actions face many obstacles over which they have no control. See id. at 270-71. In particular, Wisconsin prisoners seeking a fee waiver first must submit an affidavit of indigency and a statement of their trust account. See Wis. Stat. § 814.29(lm)(b). The prisoners must then await a court order either allowing them to proceed without paying the filing fees or requiring them to pay as much of the filing fee as is available in their trust account. See § 814.29(lm)(c) and (d). Prisoners who have enough money to pay the filing fee in their "release" accounts, but not their "general" accounts, must still await a court order allowing them to access those funds, because the use of "release" account funds is otherwise restricted by WlS. Admin. Code § DOC 309.466(2). See State ex rel. Coleman v. Sullivan, 229 Wis. 2d 804, 809, 601 N.W.2d 335 (Ct. App. 1999). As seen in the appellants' cases, a prisoner who submits a petition for a writ of certiorari within the forty-five-day deadline may be forced to watch the forty-five days pass while he or she awaits the trial court's decision regarding a fee waiver.

¶ 16. We do not agree with the State's interpretation of WlS. Stat. §§ 893.735, 814.29(lm), and 59.40(3). In enacting § 893.735, the legislature shortened the deadline for a prisoner filing a certiorari petition from six months to forty-five days. See State ex rel. Collins v. Cooke, 2000 WI App 101, ¶ 4, 235 Wis. 2d 63, 611 N.W.2d 774. In shortening the deadline for all prisoners filing petitions for writs of certiorari, however, the legislature did not indicate that it intended to eliminate an indigent prisoner's ability to file such actions. If, as the State asserts, indigent prisoners must present the clerk of courts with either the complete filing fee or an order allowing them to proceed with no fee or a partial fee, many will be effectively denied an opportunity to petition for certiorari review. While we acknowledge that circuit court clerks have the discretion to refuse to file any paper without payment of the appropriate fees, it is unreasonable for that discretion to be exercised in a manner that denies prisoners their ability to bring certiorari actions.

¶ 17. Therefore, we must interpret Wis. Stat. §§ 893.735, 814.29(lm), and 59.40(3) in a manner that accounts for both the discretion of the clerks of court and the lack of control that prisoners have over many of the steps needed to file a certiorari action within forty-five days. We conclude that, for a prisoner seeking to file a certiorari action without payment of the fees due to indigency, the forty-five-day deadline is tolled once the clerk of court receives the petition for a writ of certiorari, the request for a fee waiver, the affidavit of indigency, and the certified copy of the prisoner's trust account statement, provided that the prisoner has authorized the prison to make any appropriate payments toward the filing fees from his or her accounts. At that point, the time taken by the court to determine whether the prisoner must pay any fees before proceeding is out of the prisoner's control.

¶ 18. If the court orders that the prisoner be allowed to proceed without prepayment of the fees, then the certiorari action should be considered filed on the date of that order. If the court finds that the prisoner has funds available in his or her trust accounts and orders the prisoner to pay as much of the fees as is available in those accounts, the time limit begins to run again once the prisoner receives a copy of the order. Finally, the certiorari action should be considered filed on the date the prisoner requests a disbursement of the ordered amount from his or her prison accounts, because at that point the payment to the clerk of courts is in the control of the prison.

III. Conclusion

¶ 19. Our interpretation of Wis. Stat. §§ 893.735, 814.29(lm), and 59.40(3) requires the clerk of courts, the prison, or the prisoner to record the various dates that will toll or restart the forty-five-day time limit. The records in the appellants' cases demonstrate that the clerk of courts received their petitions for writs of certiorari within forty-five days of the accrual of their causes of action. However, there is no evidence in the record of several of the other dates that are crucial to the analysis. Furthermore, at the time they filed their petitions, the appellants did not know of our conclusion regarding how a prisoner seeking to commence a certio-rari action without payment of the filing fees can comply with the forty-five-day filing deadline. It would be unfair to hold the appellants to a standard of which they were unaware. We conclude that our analysis should apply only in these and future cases.

¶ 20. Considering that the appellants each submitted their petitions for writs of certiorari within the forty-five-day deadline and apparently complied with subsequent court orders regarding the amount of fees they were to pay, we reverse the trial court's determinations that the appellants had exceeded the time limit for filing their petitions. We remand with directions to reinstate the appellants' certiorari actions.

¶ 21. Finally, Steldt argues that the trial court erred by not concluding that the prison violated his right to procedural due process when it failed to complete his disciplinary hearing within the twenty-one days required by Wis. Admin. Code § DOC 303.76(3). McKinley contends that the trial court erred by failing to reverse the decision of the prison adjustment committee when the prison did not return the record of the disciplinary proceedings within thirty days of service of the writ of certiorari. The trial court did not address these issues before dismissing Steldt's and McKinley's petitions for failing to meet the time deadline. We have directed that the appellants' certiorari actions be reinstated, and we need not address these issues before the trial court has an opportunity to do so.

By the Court. — Orders reversed and causes remanded with directions.

       On August 10, 1999, we consolidated Steldt's and Pond's cases on the appellants' motion. On March 3, 2000, we consolidated those cases with McKinley's case on our own motion.

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       The prison trust account statement in the record indicates that Steldt had $0.06 in his "regular" account and $130.41 in his "release" account.

       The trial court concluded that Steldt's cause of action accrued on September 1, 1998. Whether it accrued on September 1 or September 16, forty-five days had passed by the time he paid the filing fee.

       The trial court stated that Pond did not petition for a fee waiver until January 6, 1999. However, the record does not contain Pond's fee waiver petition or any indication of when he submitted it.

       Pond submitted to the trial court a copy of his January 10, 1999 disbursement request for the $4.82, which indicates that the disbursement was approved on January 12, 1999, and paid on January 13,1999. There is no indication of when the clerk of courts received Pond's $4.82 other than the fact that his petition for writ of certiorari was filed on February 4,1999.

       The forty-five days would actually have ended on December 10, 1999, a Sunday, so the deadline extended to the following day. See WlS. STAT. § 990.001(4)(b).

       Wisconsin Stat. § 814.29(lm) provides, in part:
      (b) If a prisoner makes a request for leave to commence or defend an action, special proceeding, writ of error or appeal without being required to prepay the fees or costs or without being required to give security for costs, the prisoner shall submit all of the following:
      1. The affidavit required under sub. (1) (b).
      2. A certified copy of the trust fund account statement for the prisoner for the 6-month period immediately preceding the filing of the request for leave to commence or defend an action, special proceeding, writ of error or appeal, or for the period that the prisoner was incarcerated, imprisoned or detained, if that period is less than 6 months. The trust fund account statement must be obtained from the appropriate official at each facility in which the prisoner is or was incarcerated, imprisoned, confined or detained. "Trust fund account statement" includes accounts accessible to the prisoner before or upon release.

        (c) Except when dismissal is required under s. 801.02 (7)(d), the court shall issue an order permitting the prisoner to commence or defend an action, special proceeding, writ of error or appeal without the prepayment of fees or costs or without being required to give security for costs if all of the following conditions are met:
      1. The court determines that the prisoner does not have assets or other means by which to pay the fees or costs or to give security for the costs after reviewing the information provided under par. (b).
      2. The prisoner authorizes in writing the agency having custody of the prisoner's prison trust fund account to forward payments from the prisoner's account to the clerk of court each time the amount in the account exceeds $10 until the fees or costs are paid in full.
      (d) If the court determines that the prisoner who made the affidavit does have assets in a trust fund account, whether accessible to the prisoner only upon release or before release, the court shall order an initial partial filing fee to be paid from that trust fund account before allowing the prisoner to commence or defend an action, special proceeding, writ of error or appeal. The initial filing fee shall be the current balance of the prisoner's trust fund account or the required fifing fee, whichever is less.

       The State also argues that, under Wis. Stat. § 801.02(6), a "clerk of court must be paid the filing fee at the time of filing." State ex rel Staples v. DHSS, 130 Wis. 2d 285, 287, 387 N.W.2d 118 (Ct. App. 1986). Section 801.02(6) provides that "[flees payable upon commencement of a civil action shall be paid to the clerk at the time of filing." The State points out that the trial court in Staples refused to find Staples indigent, and we stated that such a finding prevented Staples from commencing his certiorari action until he paid the filing fee. Staples, 130 Wis. 2d at 287. However, unlike Staples, the appellants each eventually paid the filing fee required by the trial court. We conclude that neither § 801.02(6) nor Staples addresses the issue of whether a prisoner seeking to commence a certiorari action without payment of the filing fees due to indigency must submit the appropriate filing fee or a court order waiving fees within the forty-five-day deadline.

       In Giese v. LIRC, 153 Wis. 2d 212, 214, 450 N.W.2d 489 (Ct. App. 1989), we interpreted what was then Wis. Stat. § 59.42(1) (1987-88). In 1995 Wis. Act 201, § 325, the legislature renumbered § 59.42 as WlS. STAT. § 59.40(3).

       In this case, we do not address the situation where a prisoner gives his petition for a writ of certiorari to prison authorities for mailing within the forty-five-day deadline, but the deadline expires before the clerk of courts receives it because of delay on the part of the prison. That issue is raised in State ex rel. Shimkus v. Sondalle, 2000 WI App 238, presently pending before this court.

       An order allowing a prisoner to proceed without prepayment of filing fees should have the same effect as the clerk of court's receipt of full payment for the fees under Wis. Stat. § 59.40(3).


source: Caselaw Access Project

author: EICH, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Aaron Evans, Defendant-Appellant.

    Court of Appeals

      No. 99-2315-CR.

      Submitted on briefs April 14, 2000.

    Decided July 27, 2000.

    2000 WI App 178
    (Also reported in 617 N.W.2d 220.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Steven D. Phillips, state public defender.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, with Thomas J. Balistreri, assistant attorney general.
    Before Dykman, P.J., Eich and Vergeront, JJ.

      Petition to review denied.

   EICH, J.

¶ 1. Aaron Evans was convicted of kidnapping and two counts of sexual assault, and was sentenced to an aggregate prison term of eighty years. In conjunction with that sentence, the court ordered restitution "up to 25% of [Evans's] prison earnings account," leaving it to the Department of Corrections to determine the specific amount.

¶ 2. Evans appeals from the judgment of conviction, and from an order denying his motions for postconviction relief. He argues: (1) that the court erroneously exercised its discretion when it prevented a defense expert from being seated at counsel table for the purpose of assisting his trial attorney in cross-examining expert witnesses for the prosecution; and (2) that the court lacked statutory authority to impose restitution on the facts of this case.

¶ 3. We conclude that the circuit court properly exercised its discretion in declining to exempt Evans's expert from the court's witness sequestration order, and we affirm his conviction. We also conclude, however, that the restitution statute, Wis. Stat. § 973.20 (1997-98), does not give the court authority to impose restitution in the manner employed in this case, and we therefore reverse that limited portion of the judgment and order.

I. Witness Sequestration

¶ 4. Evans was charged with breaking into his ex-girlfriend's apartment and sexually assaulting her fifteen-year-old daughter. The prosecution used DNA samples extracted from physical evidence taken from the apartment, and from tissue samples taken from the victim, to secure his conviction.

¶ 5. As the trial was about to begin, Evans's attorney, Michael Backes, requested that Dr. Alan Friedman, a listed expert witness for the defense, be exempted from the court's order sequestering all witnesses. Backes wanted Friedman to sit at counsel table to assist him in cross-examining the State's DNA witnesses. He said he needed Friedman's help because DNA evidence was "a complex matter," which he found "somewhat confusing." Backes also said he was unsure at that time whether Friedman would actually testify, suggesting that it was "unlikely." The prosecutor objected, claiming that it would be "unfair" to allow Friedman to hear the testimony of the State's experts, "[a]nd then at some point [he] may decide to testify," thus frustrating the purpose of the sequestration order. Backes then asked whether there would be "any objection" to Friedman's presence at counsel table if Backes would agree not to call him as a witness, to which the court responded: "[W]hy don't you see whether or not you can do this without his presence at the .. . counsel [table], and we'll go from here, with the State's witnesses being available to Dr. Friedman." Friedman never testified and Backes never raised the subject again.

¶ 6. The statute governing exclusion of witnesses, Wis. Stat. § 906.15, authorizes a judge to exclude witnesses from the courtroom so that they cannot hear the testimony of other witnesses. The purpose of sequestration is to assure a fair trial — specifically, to prevent a witness from "shaping his [or her] testimony" based on the testimony of other witnesses. Nyberg v. State, 75 Wis. 2d 400, 409, 249 N.W.2d 524 (1977), overruled on other grounds by State v. Ferron, 219 Wis. 2d 481, 579 N.W.2d 654 (1998). The statute does not, however, permit exclusion of "a person whose presence is shown by a party to be essential to the presentation of the party's case." Section 906.15(2)(c).

¶ 7. Sequestration of witnesses is within the discretion of the trial court. See Ramer v. State, 40 Wis. 2d 79, 82-83, 161 N.W.2d 209 (1968). And, as we have often said, our review of discretionary determinations is deferential: we do no more than examine the record to gauge whether the circuit court reached a reasonable conclusion based on proper legal standards and a logical interpretation of the' facts. See State v. Salentine, 206 Wis. 2d 419, 429-30, 557 N.W.2d 439 (Ct. App. 1996).

¶ 8. One seeking relief from a sequestration order bears the burden of showing that the person sought to be exempted from the order is "essential"; a showing that the person's presence would be merely helpful or desirable is not enough. Opus 3, Ltd. v. Heritage Park, Inc., 91 F.3d 625, 628, 629 (4th Cir. 1996); United States v. Jackson, 60 F.3d 128, 135 (2d Cir.), cert. denied 516 U.S. 980 (1995). Other cases indicate that where, as here, the exemption is sought to enable a third party to assist a party's attorney in conducting the trial, he or she must show that the person "has such specialized expertise or intimate knowledge of the facts that [counsel] could not effectively function without the presence and aid of the witness." Oliver B. Cannon & Son, Inc. v. Fidelity & Cas. Co., 519 F. Supp. 668, 678 (D. Del. 1981).

¶ 9. As indicated above, Backes's statements supporting his request were broad and unparticu-larized. And when he appeared to be unwilling to commit to not calling Friedman as a witness, the court suggested that the trial proceed with Friedman excluded from the courtroom and see whether counsel could get along without him, and that then "we'll go from [there]." On appeal, Evans repeats Backes's assertions about the complexity of DNA testing and suggests that had Friedman been allowed to hear the "actual testimony" of the State's witnesses, to see their exhibits and "to hear how those exhibits justified the [experts'] conclusions," he would have then been in a position to "interpret this testimony for [Backes] . . . [and] to recommend effective cross-examination strategies or techniques."

¶ 10. We are satisfied that, on this record, the circuit court did not erroneously exercise its discretion in denying Evans's request that Friedman be exempted from the sequestration order. Evans has not shown that Friedman's presence in the courtroom was "essential to the presentation of [his] case" within the meaning of Wis. Stat. § 906.15(2)(c). Helpful, perhaps, but not so essential that his attorney could not effectively function with Friedman in the hallway, rather than sitting next to him in the courtroom. Backes's statements to the circuit court, and Evans's assertions on appeal are characterized by generalization and vagueness. Friedman's qualifications in the field of DNA testing were never established, and Evans has not detailed any specific way in which Friedman would have assisted him with respect to the DNA evidence. Finally, as we have noted above, the circuit court kept the door open for defense counsel to make a more specific showing as to the necessity for Friedman's presence — an offer Evans never took up.

IL Restitution

¶ 11. As we have noted above, the circuit court ordered Evans to pay "[rjestitution up to 25 percent of his prison earnings account," and the judgment of conviction contained the entry "TBD" under the heading "Restitution." The court explained in its decision on Evans's postconviction motions that the entry means, in essence, that restitution is "to be determined" by the department of corrections "pursuant to standard Milwaukee County procedure." The court went on to say that, under that procedure, "[i]f the Department determines that no restitution is required based on its investigation, restitution is set at zero; if it determines that restitution is required, the defendant has the opportunity to challenge the amount of restitution set by the Department in a court hearing."

¶ 12. Evans claims that the circuit court lacked statutory authority to order restitution. Whether a particular act is authorized by statute is a question of law which we review de novo. See State v. Schmaling, 198 Wis. 2d 756, 760, 543 N.W.2d 555 (Ct. App. 1995).

¶ 13. Restitution is governed by Wis. Stat. § 973.20, which requires courts to order full or partial restitution "under this section" to any victim of a crime "unless the court finds substantial reason not to do so and states the reason on the record." Wis. Stat. § 973.20(lr). After setting forth various restitution alternatives for specific offenses and injuries, the statute continues:

(13)(c) The court, before imposing sentence or ordering probation, shall inquire of the district attorney regarding the amount of restitution, if any, that the victim claims. ... If the defendant stipulates to the restitution claimed by the victim or if any restitution dispute can be fairly heard at the sentencing proceeding, the court shall determine the amount of restitution before imposing sentence or ordering probation. In other cases, the court may do any of the following:
1. Order restitution of amounts not in dispute as part of the sentence or probation order imposed and direct the appropriate agency to file a proposed restitution order with the court within 90 days thereafter....
2. Adjourn the sentencing proceeding for up to 60 days pending resolution of the amount of restitution by the court, referee or arbitrator.
3. With the consent of the defendant, refer the disputed restitution issues to an arbitrator acceptable to all parties, whose determination of the amount of restitution shall be filed with the court within 60 days ....
4. Refer the disputed restitution issues to a court commissioner or other appropriate referee, who shall conduct a hearing on the matter and submit the record thereof, together with proposed findings of fact and conclusions of law, to the court within 60 days of the date of referral. Within 30 days after the referee's report is filed, the court shall determine the amount of restitution ....

WiS. Stat. § 973.20(13)(c) (emphasis added).

¶ 14. As may be seen, the statute sets forth four separate, alternative procedures to be used by courts in cases where restitution is ordered and the amount, for whatever reason, is unable to be determined at the sentencing hearing. There is nothing in the language of the statute suggesting that the list is open-ended or non-exclusive. Indeed, it states quite plainly that, where restitution is ordered by the court, but the amount is not determined at the sentencing hearing, "the court may do any of the following" things — it may select any of the four listed procedures. It is equally plain that, in this case, the court did none of these things. It did not direct that a restitution order be prepared and filed; it did not adjourn the sentencing for referral to a referee or arbitrator; it did not obtain Evans's consent for referral to an agreed-upon arbitrator; and it did not send the matter to a referee for a hearing and findings. Instead, it set up and followed an entirely different procedure.

¶ 15. The court's oral pronouncement at sentencing, and the terms of the judgment of conviction, make it clear that restitution was being ordered and that the matter was being referred to the department of corrections to determine the amount. Whether, as the court posited in the postconviction proceedings, that amount might turn out to be anything — even zero — or whether, as happened here, months or years might elapse with no amount being set, is immaterial. Restitution is a statutory process and where, as was done in this case, a court constructs its own procedure to determine and set restitution — and that procedure is not authorized by the applicable and controlling law — the decision cannot stand.

¶ 16. We therefore reverse the judgment and postconviction order insofar as they order restitution. In all other respects, we affirm Evans's conviction.

By the Court. — Judgment and order affirmed in part; reversed in part and cause remanded with directions.

       All references to the Wisconsin Statutes are to the 1997 — 98 version unless otherwise noted.

       Wisconsin's sequestration statute, Wis. STAT. § 906.15(2)(c), is identical to the federal rule, Fed. R. Evid. 615 (3). And where a state rule mirrors the federal rule, we consider federal cases interpreting the rule to be persuasive authority. See State v. Cardenas-Hernandez, 219 Wis. 2d 516, 528, 579 N.W.2d 678 (1998).

       Indeed, the prosecutor informed the court that, should Friedman be called to testify as an expert witness, he would challenge his "credentials."

       The court explained that it was simply following what is apparently the procedure used in all courts in Milwaukee County — where restitution is ordered in a "not more than" amount and determination of the exact figure is left to the department of corrections.

       As a preliminary matter, the State argues that Evans lacks "standing" to contest the restitution order because he has not yet been directed to make any payments and because the department of corrections may ultimately decide to set the amount at zero. As Evans points out, however, the court, in sentencing him, stated: "He's to pay . . . [restitution up to 25 percent of his prison earnings account;" and the judgment of conviction states: "Restitution ... [t]o be paid from up to 25% of prison earnings." Given that, says Evans, all that is left is determination of the amount. We agree. Even though, as the circuit court suggests, the amount could be set at $100 or $10, or even zero, and even though Evans has yet to be ordered to pay anything, the fact remains that a restitution order has been entered and has been, as Evans puts it, "hanging over his head" for more than two years. We decline to dismiss Evans's arguments on "standing" grounds.

       When the legislature has wanted a list to be non-exclusive, it has so stated in the statute. See, e.g., Wis. Stat. §§ 9.10(2)(r), 29.537(8), and 40.02(22)(b).

       As may be seen, all of the statutory procedures for determining the amount of restitution contain a sixty-day time limit. And while we said in State v. Perry, 181 Wis. 2d 43, 55, 56-57, 510 N.W.2d 722 (Ct. App. 1993), that that limit is directory, rather than mandatory, we also noted that our decision in that regard "should not be read to imply that the provision is merely discretionary or permissive," because the legislature had plainly intended "that the time limit be followed." In this case, all of the statutory time limits in Wis. Stat. § 973.20(13)(c) have been exceeded not just by days or weeks — or even by months — but by years.

       Citing language in WiS. Stat. § 973.20(13)(c) directing the court to inquire into "the amount of restitution, if any, that the victim claims," Evans also argues that because there is no evidence that the victim ever made a claim for restitution, or that any such request was made on her behalf, none may be ordered. Because we hold that the court's restitution order was unauthorized by law, we need not consider Evans's alternative argument for reversal.


author: ROGGENSACK, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Nathaniel A. Lindell, Defendant-Appellant.

    Court of Appeals

      No. 99-2704-CR.

      Submitted on briefs May 19, 2000.

    Decided July 27, 2000.

    2000 WI App 180
    (Also reported in 617 N.W.2d 500.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Timothy J. Gaskell of Hanson & Gaskell of Westby.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Diane M. Welsh, assistant attorney general.
    Before Dykman, P.J., Vergeront and Roggensack, JJ.

      Petition to review granted.

   ROGGENSACK, J.

¶ 1. Nathaniel A. Lindell appeals his convictions for first-degree intentional homicide, arson and burglary, all as party to a crime, and the denial of his motion for postconviction relief. He claims that the circuit court erred in not striking a juror for cause who admitted that: (1) she had known the homicide victim for over twenty years; (2) the victim was a close personal friend of her family; (3) she had attended the victim's funeral; and (4) she had regular contact with the victim when she worked at her parents' tavern. Lindell also claims the circuit court erred in concluding that he had not been denied effective assistance of counsel. Because we conclude that the juror was neither subjectively or objectively biased and that Lindell was not denied effective assistance of counsel, we affirm the judgment of the circuit court.

BACKGROUND

¶ 2. Donald Harmacek was found dead in his home after his house had been burglarized and set on fire. Lindell was charged as a party to the crime for his alleged involvement. At the time of jury selection, prospective jurors were asked whether they knew Shirley Otto, a long-time companion of Harmacek. Juror D.F. responded that she had "known Shirley and Donny [the victim] for about twenty years." When asked to elaborate about her relationship with the victim, D.F. responded that they were "[c]lose friends, just friends, you know, over the years." She said that Harmacek had been the beer distributor for her parents' tavern for forty-seven years.

¶ 3. Defense counsel also asked D.F. how much contact she had with either Otto or Harmacek. She responded "[n]one really with Shirley other than knowing her. Donny, you know, when he made our deliveries three times a week." When asked whether she ever socialized with Harmacek, D.F. said that her parents knew him very well and that he would come into her parents' establishment every morning for breakfast. Additionally, D.F. stated that she saw him about three times a week, when he made beer deliveries to her parents' tavern. Defense counsel also asked D.F. if she had talked about his death with her family. D.F. stated that she had and it was hard because she and her family had known Harmacek for so many years. D.F. also explained that she had lost her own father the year before, so Harmacek's death was especially difficult.

¶ 4. Defense counsel also asked D.F. about pretrial publicity. D.F. said that she had read many of the newspaper articles about the case and had discussed them with her mother, with whom she has lived since the death of her father. When asked whether she had discussed the case with Otto, D.F. responded "No. We run (sic) into her a couple weeks ago on the elevator, and that's the first time we'd seen her since this happened other than the funeral home that night." The defense counsel and the court each asked D.F. whether she thought she could fairly and impartially decide the case based upon the evidence adduced at trial, to which she responded that she believed she could.

¶ 5. Defense counsel moved to strike D.F. for cause. The circuit court denied the motion, stating that D.F. had promised to fairly and impartially decide the case. Lindell subsequently used one of his peremptory challenges to remove D.F. from the jury.

¶ 6. After the jury returned a guilty verdict on all counts, Lindell brought a postconviction motion seeking a new trial on the grounds that D.F. should have been struck for cause. Lindell also argued that his trial counsel was ineffective for failing to introduce impeachment evidence relating to one of the State's witnesses. The court denied the motion and Lindell appeals.

DISCUSSION

Standard of Review.

¶ 7. A circuit court's determination that a juror is not subjectively biased is a factual finding that will be upheld unless clearly erroneous. See State v. Theodore Oswald, 2000 WI App 2, ¶ 19, 232 Wis. 2d 62, 606 N.W.2d 207, cert. denied, 120 S. Ct. 2757 (2000). Whether a juror is objectively biased, however, presents a mixed question of fact and law. See State v. Faucher, 227 Wis. 2d 700, 720, 596 N.W.2d 770, 779 (1999). A circuit court's findings of fact will be upheld unless they are clearly erroneous. See WlS. Stat. § 805.17(2) (1997-98). However, whether those facts fulfill the legal standard of objective bias is a question of law that this court reviews de novo. See Faucher, 227 Wis. 2d at 720, 596 N.W.2d at 779. Nevertheless, the supreme court has directed that we may reverse a circuit court's determination of objective bias only if, as a matter of law, a reasonable judge could not have reached the conclusion that the circuit court reached. See id. at 721, 596 N.W.2d at 779-80. However, notwithstanding the deference given to a circuit court's determination about an individual juror's objective bias, a "circuit court's determination that a group of people with similar characteristics is objectively biased is a question of law that we review de novo.” State v. Mendoza, 227 Wis. 2d 838, 850, 596 N.W.2d 736, 743 (1999).

¶ 8. In regard to our review of an ineffective assistance of counsel claim, we examine a circuit court's findings of fact concerning the circumstances of the case and counsel's conduct and strategy under the clearly erroneous standard. However, whether counsel's performance wás defective and whether the defective performance was prejudicial are questions of law, which we review de novo. See State v. Hubert, 181 Wis. 2d 333, 339-40, 510 N.W.2d 799, 801-02 (Ct. App. 1993).

Juror Bias.

¶ 9. The United States Constitution and the Wisconsin Constitution guarantee a criminal defendant the right to a trial by an impartial jury. See U.S. CONST, amend. VI; WlS. CONST, art. I, § 7. A juror who "has expressed or formed any opinion, or is aware of any bias or prejudice in the case" should be removed from . the panel. Wis. Stat. § 805.08(1); see also Wis. Stat. § 972.01. Additionally, "[i]f a juror is not indifferent in the case, the juror shall be excused." Section 805.08(1).

¶ 10. In Faucher, 227 Wis. 2d at 716, 596 N.W.2d at 777, the supreme court clarified the terminology to be used when examining juror bias. It has directed that a prospective juror is biased and therefore should be removed for cause if the juror is (1) statutorily biased, (2) subjectively biased or (3) objectively biased. See Theodore Oswald, 2000 WI App 2 at ¶ 17. A juror is statutorily biased if the juror is related by blood or marriage to any party or any attorney appearing in the case or if the juror has a financial interest in the case. See Wis. Stat. § 805.08(1). Neither party contends that D.F. was statutorily biased. Accordingly, we focus upon whether D.F. was subjectively or objectively biased such that she should have been stricken from the jury for cause.

1. Subjective Bias.

¶ 11. Subjective bias "inquires whether the record reflects that the juror is a reasonable person who is sincerely willing to set aside any opinion or prior knowledge that the juror might have." State v. Kiernan, 227 Wis. 2d 736, 745, 596 N.W.2d 760, 764 (1999). Often, subjective bias will be revealed only through the prospective juror's demeanor because it refers to that juror's state of mind. See Faucher, 227 Wis. 2d at 717, 596 N.W.2d at 778. Therefore, a circuit court is in a better position to determine subjective bias than an appellate court because the determination involves an assessment of the juror's honesty and credibility. See id. at 717-18, 596 N.W.2d at 778.

¶ 12. Here, the circuit court concluded that D.F. was not subjectively biased. When asked whether she could listen to all the evidence and make a fair determination, D.F. responded, "Yes, I think I could." Additionally, D.F. was asked several times about whether she would listen to the evidence fairly and impartially, and she never said that she would not. The circuit court stated D.F. was not evasive in any way, answered all of the questions put to her, and was honest and fair in her answers. Further, it stated that "Kit's clear from her demeanor that she searched her soul and answered fairly and that she could fairly and impartially decide this case." Given the circuit court's superior position in assessing a prospective juror's honesty and credibility, we conclude that the court's determination that D.F. was not subjectively biased is not clearly erroneous.

2. Objective Bias.

¶ 13. Objective bias, on the other hand, does not focus on the prospective juror's state of mind. See id. at 718, 596 N.W.2d at 779. Whether a particular juror is objectively biased depends on the facts and circumstances surrounding voir dire and the facts involved in the case. See id. A juror who is acquainted with a witness or who has a predisposition for or against a critical issue in the case may be struck as objectively biased only if there is "a direct, critical, personal connection between the individual juror and crucial evidence or a dispositive issue in the case to be tried or the juror [has an] intractable negative attitude toward the justice system in general." State v. James Oswald, 2000 WI App 3, ¶ 8, 232 Wis. 2d 103, 606 N.W.2d 238, cert. denied, 120 S. Ct. 2757 (2000); see also Kiernan, 227 Wis. 2d at 751, 596 N.W.2d at 767.

¶ 14. For example, in Faucher, a prospective juror was acquainted with a key witness for the State and expressed a firm opinion that the witness was a person of integrity who would not lie. See Faucher, 227 Wis. 2d at 708, 596 N.W.2d at 774. Although the supreme court upheld the circuit court's determination that the juror was not subjectively biased, the court concluded that the juror was objectively biased because "a reasonable person in [the juror's] position could not set the opinion aside despite the best of intentions to do so." See id. at 733, 596 N.W.2d at 785. Objective bias was also manifest in Kiernan, where several veteran jurors had rejected the identical defense of the defendant in an earlier trial, i.e., that breathalyzer readings could be inaccurately high when the subject had an object in his mouth. See Kiernan, 227 Wis. 2d at 750, 596 N.W.2d at 767.

¶ 15. In contrast, the supreme court determined that a prospective juror was not objectively biased in State v. Erickson, 227 Wis. 2d 758, 596 N.W.2d 749 (1999), cert. denied, 120 S. Ct. 987 (2000). There, a prospective juror in a sexual assault case had been a victim of sexual abuse as a child. Unlike the prospective juror in Faucher, this juror had no direct, personal relationship with any critical evidence or issue involved in the case. Additionally, her sexual assault was remote in time, lessening the chance that it would taint her judgment. See id. at 763 n.5, 596 N.W.2d at 753 n.5.

¶ 16. We begin our analysis of whether D.F. was objectively biased by noting that concerns for objective bias bear on public trust and confidence in the judicial system; accordingly, we attempt to avoid even the appearance of bias in a jury member. See Mendoza, 227 Wis. 2d at 847, 596 N.W.2d at 741 (citing State v. Louis, 156 Wis. 2d 470, 478, 457 N.W.2d 484, 488 (1990)). Therefore, a juror must be struck if retaining the juror would give the appearance that the defendant could not have a fair trial. See id.

¶ 17. There is no published Wisconsin appellate case where the relationship of the victim to a juror is central to a challenge for cause grounded on objective bias. However, the test that has been established for evaluating claims of objective bias when the prospective juror has a connection to a witness or a critical issue in the case provides us with a starting point. See James Oswald, 2000 WI App 3 ¶ 8-13. Therefore, we shall consider whether D.F. has a direct, critical, personal connection to crucial evidence or a dispositive issue; or has an intractable negative attitude toward the justice system in general. However, because a juror's relationship to the victim may be of such a nature as to taint a reasonable juror's ability to rationally consider all the evidence presented at trial, we shall also consider whether the juror's relationship with the victim is so close that as a matter of law no reasonable person in the position of the juror would be "indifferent in the case" as is required by WlS. STAT. § 805.08(1).

¶ 18. Here, D.F.'s voir dire revealed that: (1) she had known Harmacek, whom she repeatedly referred to as "Donny," for about twenty years; (2) the victim had been the beer distributor for her parents' tavern for forty-seven years; (3) the victim had eaten breakfast at her parents' establishment daily; (4) when she worked for her parents' tavern, she had had contact with Harmacek approximately three times a week when he delivered beer to the tavern; (5) she had talked about the case with her mother; (6) she had attended the funeral of the victim with her mother; (7) her parents had socialized with Harmacek; and (8) Harmacek's death was difficult for D.F. because her own father had passed away the year before. However, D.F. repeatedly maintained that she could set aside her relationship with Harmacek and view the evidence impartially.

¶ 19. While Lindell has offered many facts which he asserts warranted removal of D.F. from the jury, he has described no direct connection between D.F. and any crucial evidence, dispositive issue or negative attitude toward the justice system. Harmacek could not testify, so his credibility was not at issue, nor would his testimony be weighed against any evidence the defense proffered. And, D.F.'s acquaintance with Otto, Harmacek's girlfriend, was minimal. Additionally, Harmacek's actions were not at issue in that Lindell was not claiming self-defense. Therefore, her relationship to the victim did not make her more or less willing to accept the defense theory of the case: that Lindell was not there when Harmacek was killed. The only factor about her acquaintance with Harmacek that defense argued affected the case was that it may have caused her to be more emotional, thereby decreasing her ability to view all the evidence objectively. However, the question of a juror's personal emotional involvement with a case bears on subjective bias, not objective bias, and the circuit court found D.F. was not subjectively biased after it had specifically considered defense counsel's assertion that she was "teary-eyed" during voir dire. Additionally, while D.F. had known Harmacek for a number of years, he was not related to her by blood or marriage, and there was no testimony that she had an exceptionally close personal relationship with him. Rather, he was a business colleague and social friend of her parents. Therefore, we conclude that a reasonable circuit court could have determined that D.F. did not have a personal connection to crucial evidence, a dispositive issue in the case, a negative attitude toward the justice system in general, or so close a personal relationship to Harmacek that, as a matter of law, no reasonable person in D.F.'s position could have been impartial. Accordingly, we conclude it did not err in determining that D.F. was not objectively biased.

Ineffective Assistance.

¶ 20. The right to counsel guaranteed a criminal defendant is the right to the effective assistance of counsel. See McMann v. Richardson, 397 U.S. 759, 771 (1970). To prevail on an ineffective assistance of counsel claim, an appellant must show that counsel's performance was deficient and that that deficiency prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Hubert, 181 Wis. 2d at 339-40, 510 N.W.2d at 801-02. The burden of proof of ineffective assistance of counsel is on the appellant. See State v. Smith, 207 Wis. 2d 258, 273, 558 N.W.2d 379, 386 (1997). The test for deficient performance is whether counsel's representation fell below the representation that a reasonably effective attorney would provide. See Strickland, 466 U.S. at 688. In regard to prejudice, an appellant must prove that counsel's deficiency of performance was so substantial and serious that but for this inadequate representation the result of the trial would have been different. See id. at 694. An appellant must prevail on both prongs of the Strickland test to obtain relief. See State v. Wirts, 176 Wis. 2d 174, 180, 500 N.W.2d 317, 318 (Ct. App. 1993).

¶21. Lindell's ineffective assistance of counsel claim arises out of the cross-examination of Robert Hanson, a witness for the prosecution, which cross-examination Lindell claims was deficient and prejudicial. Hanson's testimony was important because, aside from the statements of the co-perpetrators in this crime, it provided the only inculpatory statements attributed to Lindell. Hanson's testimony purported to relate that while he was incarcerated with Lindell at the La Crosse county jail, Lindell allegedly told him of his involvement in the burglary, arson and homicide of Harmacek. Lindell, who attempted to show Hanson was not a credible witness, claimed he had learned that Hanson had approached another inmate about making an arrangement with the State that was favorable to the inmate and Hanson if the other inmate would provide testimony implicating Lindell in Harmacek's murder. Defense counsel attempted to impeach Hanson with this information, and the State objected based on a failure to give notice of the use of other acts evidence. The circuit court sustained the objection after a hearing out of the presence of the jury and invited defense counsel to reapproach the issue at a latter time. Counsel did not do so.

¶ 22. At the Machner hearing, the court found that defense counsel had made a strategic decision not to pursue the admission of this impeachment evidence against Hanson because the element of surprise had been eliminated. That finding is not clearly erroneous. Additionally, Hanson's credibility was of limited value, as he had an extensive record. Furthermore, the evidence of Lindell's guilt was overwhelming. For example, Todd Gass testified that he was approached by Lindell about participating with him in the burglary and using walkie-talkies before the burglary occurred. Charles Schaub testified that Lindell purchased three communication radios from his store shortly before the burglary. Josh Lindell (the defendant's brother) and Marcus Mitchell testified that Mitchell agreed to serve as the look-out for the burglary while both Nathaniel and Josh Lindell went inside the Harmacek residence. Harmacek collected coins, and Lindell's roommate, Casey Castona, testified that after the date of the burglary Lindell had some rare coins that he was trying to sell. Therefore, we conclude that even if we were to assume, arguendo, that trial counsel's performance were deficient, that deficiency was not prejudicial. Accordingly, Lindell was not denied effective assistance of counsel.

CONCLUSION

¶ 23. Because we conclude that the circuit court did not err in determining that D.F. was neither subjectively nor objectively biased, we affirm the circuit court's denial of Lindell's motion to strike her for cause. We also conclude that Lindell was not denied effective assistance of counsel. Therefore, we affirm the judgment of the circuit court.

By the Court. — Judgment and order affirmed.

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       A different standard of review could lead to a different result in a close case. However, we do not consider whether a de novo standard of review would produce a different result here because State v. Faucher, 227 Wis. 2d 700, 720-21, 596 N.W.2d 770, 779-80 (1999), is clear that we are to give weight to the trial court's conclusion that a prospective juror is or is not objectively biased.

       Although the United States Constitution requires an impartial jury, the United States Supreme Court has never specifically adopted objective bias as a means of achieving that right. See Smith v. Phillips, 455 U.S. 209, 221-24 (1982) (Justice O'Connor concurring to assert that implied bias (the United States Supreme Court's designation for objective bias) should not be discarded as an option for the disqualification of certain types of jurors).

       For example, if the mother of the child whom a defendant had been charged with murdering were a prospective juror, that close relationship with the victim would prevent a reasonable person in the juror's position from being unbiased. See State v. Gesch, 167 Wis. 2d 660, 667, 482 N.W.2d 99, 102 (1992) (where a prospective juror is related to a witness by blood or marriage to the third degree, even though no actual bias may exist, the risk of objective bias requires exclusion of the juror).

       The State points out in its brief that it is unclear whether D.F. attended the funeral or the visitation of Harmacek. However, it is clear she attended a function for Harmacek's death that took place at a funeral home.

       We do not reach the issue of whether this ruling by the circuit court was correct, as it is unnecessary to our decision.

         See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

       Lindell also asks us to reverse his conviction pursuant to our discretionary authority under Wis. Stat. § 752.35. His request occurs in the conclusion section of his brief, is one paragraph long and cites to no legal authority. We do not address the merits of his argument because it was undeveloped by legal reasoning. See Truttschel v. Martin, 208 Wis. 2d 361, 369, 560 N.W.2d 315, 319 (Ct. App. 1997).


text:
    Scott K. Reed and Julie Reed, Plaintiffs-Respondents, v. Brenda L. Bradley and American Family Mutual Insurance Company, Defendants-Appellants, State Farm Mutual Automobile Insurance Company, Defendant.
    Court of Appeals

      No. 00-0455.

      Submitted on briefs June 12, 2000.

    Decided July 27, 2000.

    2000 WI App 165
    (Also reported in 616 N.W.2d 916.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of David J. Pliner of Corneille Law Group, L.L.C., of Madison.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of C.M. Bye of Bye, Goff & Rohde, Ltd., of River Falls.
    Before Eich, Vergeront and Roggensack, JJ.

      Petition to review filed.

   EICH, J.

¶ 1. Scott and Julie Reed were injured in an automobilé accident. Their medical expenses, which were stipulated to be $2,978, were paid by their insurer, State Farm Mutual Automobile Insurance Company. Prior to trial, the other driver's insurer, American Family Mutual Insurance Company, negotiated a settlement with State Farm in which State Farm accepted payment of 75% of the stipulated medical expenses, or $2,246, in exchange for assignment of its subrogation claim.

¶ 2. Liability and the amount of health care expenses were stipulated, leaving only pain, suffering and disability, and future health care expenses, for trial. The jury returned a verdict of $22,978, which included stipulated past health care expenses of $2,978. The Reeds agreed that American Family was entitled to a credit against the verdict for the $2,246 it had paid to State Farm. They maintained, however, that the difference between that and the medical-expense award of $2,978 — some $731 — should revert to them. The trial court found in the Reeds' favor and American Family appeals, arguing that we should reverse because: (1) the Reeds were unjustly enriched by the court's ruling, effectively receiving a double recovery; and (2) the ruling runs counter to established public policy favoring settlements. We disagree and affirm the judgment.

¶ 3. The Reeds contend — and we agree — that the rationale of the collateral source rule — which provides that "a plaintiff is entitled to recover the reasonable and customary charges for past medical expenses without regard to the payment of those expenses or the amount of such payment by a third party," Ellsworth v. Schelbrock, 229 Wis. 2d 542, 553, 600 N.W.2d 247 (Ct. App. 1999) — is applicable here. The reasoning underlying the rule is that the recovery of medical costs has a penal effect on a tortfeasor, who should not receive the advantage of "gratuities from third parties." Thoreson v. Milwaukee & Suburban Transp. Co., 56 Wis. 2d 231, 243, 201 N.W.2d 745 (1972). And the Reeds maintain that, as in Ellsworth, the trial court's decision in this case ensures that the defendant and her insurer "will not be subject to answer twice in damages. [They] will, however, be responsible for the full amount of the value of the services rendered." Ellsworth, 229 Wis. 2d at 554.

¶ 4. There is no question that a plaintiff who has been injured by another person's tortious conduct is entitled to recover the reasonable value of his or her medical costs occasioned by the injury. See Thoreson, 56 Wis. 2d at 243. And the test is the value of those costs, not the actual charge. See id. In our view, State Farm's agreement to settle its limited subrogation claim for less than its face value is analogous to the situation where a health care provider sets an injured plaintiffs broken bone for less than the reasonable cost. While some may view a verdict for the plaintiff for the reasonable cost of such a procedure as a double recovery, under the collateral source rule it does not amount to unjust enrichment.

¶ 5. Applying these principles to the case at hand, we believe the trial court came to the reasonable and legally sound conclusion that, as between the parties, the Reeds were entitled to the benefit of the insurers' bargain by virtue of having paid premiums for health care coverage over time. And American Family, as the defendant's insurer, has already been paid a premium for the risk it assumed.

¶ 6. As to American Family's argument that affirming the circuit court's judgment would run counter to established public policy favoring settlements, we disagree. The agreement between State Farm and American Family did not constitute a settlement of the action, or any major portion of it. Rather, it was an agreement between the defendant's insurer and the holder of a limited subrogated interest to settle that limited claim for 75% of its face value. The agreement did not abrogate the necessity for a trial, or curtail the proceedings in any meaningful way. Additionally, as the trial court noted, where, as here, there is only a partial settlement, the subrogated insurer receives the benefit of being released from the lawsuit and all of the concomitant expenses.

By the Court. — Judgment affirmed.

       State Farm has declined to participate in this appeal.


text:
    In the Matter of the Guardianship and Protective Placement of Lillian P.: Vincent J. Guerrero, Appellant, v. Patricia M. Cavey, Respondent.

    Court of Appeals

      No. 99-2122.

      Submitted on briefs February 11, 2000.

    Decided July 20, 2000.

    2000 WI App 203
    (Also reported in 617 N.W.2d 849.)

      On behalf of the appellant-appellant, the cause was submitted on the briefs of Vincent J. Guerrero of Neupert & Wakeman, S.C. of Lake Mills.
    On behalf of the respondent-respondent, the cause was submitted on the brief of Patricia M. Cavey of Tammi, Cohn & Cavey of Milwaukee and Jack Longert of Legal Action of Wisconsin, Inc. of Madison.
    Before Dykman, P.J., Roggensack and Deininger, JJ.

      Petition to review denied.

   ROGGENSACK, J.

¶ 1. Vincent J. Guerrero, guardian ad litem for Lillian P., the subject of a guardianship and protective placement, appeals the circuit court's denial of his motion to disqualify attorney Patricia M. Cavey from the dual representation of Lillian P. and her son, Lester P. Guerrero contends Cavey has a conflict of interest that Lillian was incapable of waiving. The circuit court noted a conflict, but it did not disqualify Cavey because attorney Jack Longert agreed to act as co-counsel to Cavey during her representation of Lillian. Because we conclude that a conflict of interest existed, that Lillian was not competent to waive that conflict, and that Longert's appearance as co-counsel to Cavey did not negate Cavey's conflict of interest, we reverse the circuit court's order, which permitted Cavey's continued representation of Lillian.

BACKGROUND

¶ 2. On July 28, 1998, Lillian P., a woman who was then almost ninety years old, was found to be incompetent due to a form of dementia. The circuit court appointed a guardian of her property and of her person, and she was protectively placed. Initially, the court appointed Mely Arndt, who had a long-standing relationship with Lillian, as her guardian, and Lillian was protectively placed in her own house, with services provided by Jefferson County Human Services Department. Lester P., one of Lillian's sons, and Lester's son, Jeremy, lived with Lillian. In October of 1998, notice was given to the court and interested persons, including Lester through the attorney who was then representing him, that Lillian's placement had been changed to a community-based residential facility (CBRF) because she required more care than she was able to receive at home. The notice stated: "If anyone wishes to contest this change in placement, they may do so by sending a written request to the Jefferson County Register in Probate, Jefferson County Courthouse, 320 South Main Street, Jefferson, Wisconsin, 53549." Lester did not object to the removal of Lillian from her house.

¶ 3. In January of 1999, Cavey filed a notice of appearance as counsel for Lester and a petition that he be permitted to purchase Lillian's house for $70,000. Also in January, Arndt, as guardian of Lillian's estate, filed a petition to sell Lillian's house. She submitted an appraisal, which valued the property at $90,000. Lillian's other two sons, Robert and Dean, both notified the court that they believed it was in Lillian's best interest to sell the house, but at a market-based price. The circuit court then appointed Guerrero as guardian ad litem for Lillian to assist in the determination of whether selling her house was in her best interests.

¶ 4. On March 12, 1999, the circuit court denied Lester's petition to purchase Lillian's house for $70,000 and granted Arndt's petition to put the house on the market, subject to confirmation of sale by the court. Apparently, prior to March 12th, the court had directed that Lester pay rent for his occupancy of the house. Arndt requested that he pay $650 per month, which rent included electricity and heat for the house. According to the record before this court, Lester did not do so. On March 30, 1999, Arndt filed a petition to confirm the sale of Lillian's house to a third party for $115,000. Also on March 30th, Cavey, acting on Lester's behalf, objected to confirmation and moved for a Watts review of Lillian's placement.

¶ 5. On April 7,1999, Arndt, who is an adult foster child of Lillian, filed her annual report as guardian of Lillian's person. In it she noted that she had visited Lillian weekly, as well as contacting her by telephone, and that "her son [is] trying [to] manipulate her well being." Shortly thereafter she wrote the court, resigning as guardian due to conflicts she had with Lester and Cavey. The court appointed Lutheran Social Services as successor guardian.

¶ 6.- Am April 16, 1999 pretrial was held on Les- - ter's motions objecting to the confirmation of the sale of Lillian's house and review of her placement. There, Cavey told the court for the first time that she represented both Lester and Lillian in objecting to the sale and in requesting a Watts review of Lillian's placement. Cavey stated that Lillian had signed a retainer agreement, a release of confidential information and a statement which outlined the "risks and benefits" of her dual representation of Lillian and Lester. She submitted none of. these documents to the court. Cavey _ argued that Lillian told her that she wanted to go home and therefore objected to the sale. Guerrero, whom the circuit court then appointed to act as Lillian's guardian ad litem in regard to any Wdtts review as well as the proposed sale of her house, raised the ethical implications of Cavey's dual representation, calling it "a classic conflict of interest with her representation of [Lillian] and [Lester]...."

¶ 7. After Guerrero moved to disqualify Cavey from representing Lillian, the court scheduled another hearing to address that issue. At that hearing, Cavey said that she recognized a potential conflict of interest but saw no actual conflict. She said that Lillian had signed a written waiver, thereby permitting her dual representation. Attorney Jack Longert of Legal Action of Wisconsin, Inc. also appeared for Lillian at that hearing. Longert said that if a conflict developed between Lillian and Lester, he would represent Lillian.

¶ 8. The circuit court was concerned about having Lillian's estate pay for legal services that Cavey would have provided to benefit Lester. Cavey opined that she could be paid only if the court determined her services were "necessaries" under the law. Longert said no fees would be charged for his services, as Lillian qualified for free legal services under Legal Action's standards. Based on these representations, the circuit court denied Guerrero's motion to disqualify Cavey. Guerrero appeals. Cavey then moved this court to conclude that Guerrero's appeal is frivolous.

DISCUSSION

Standard of Review.

¶ 9. Circuit court decisions on motions to disqualify attorneys are reviewed under the erroneous exercise of discretion standard. See Jesse v. Danforth, 169 Wis. 2d 229, 245-46, 485 N.W.2d 63, 69 (1992). The appellate court will not reverse a discretionary decision of the circuit court "[w]here the record shows that the court looked to and considered the facts of the case and reasoned its way to a conclusion that is consistent with applicable law and one a reasonable judge could reach . . . Marten Transp. Ltd. v. Hartford Specialty Co., 194 Wis. 2d 1, 13, 533 N.W.2d 452, 455 (1995). However, " 'we have never hesitated to reverse discretionary determinations where the exercise of discretion is based on an error of law.'" Berg v. Marine Trust Co., 141 Wis. 2d 878, 887, 416 N.W.2d 643, 647 (Ct. App. 1987) (citation omitted). Whether an actual conflict of interest exists is a question of law which we decide without deference to the circuit court. See State v. Kalk, 2000 WI App 62, ¶ 13, 234 Wis. 2d 98, 608 N.W.2d 428.

¶ 10. Additionally, we decide as a matter of law whether an appeal is frivolous under Wis. Stat. § 809.25(3) (1997 — 98). See J.J. Andrews, Inc. v. Midland, 164 Wis. 2d 215, 225, 474 N.W.2d 756, 760 (Ct. App. 1991).

Conflict of Interest.

¶ 11. An attorney is prohibited from representing multiple clients with adverse interests unless certain conditions are met. See SCR 20:1.7. A lawyer's duty to promote his or her client's interests exists in civil and in criminal law. See State v. Street, 202 Wis. 2d 533, 543, 551 N.W.2d 830,835 (Ct. App. 1996). If the representation of two or more clients by the same counsel is serial (i.e., involving a past and a current client) and an objection is made to such representation in the circuit court, we apply a two-part test to determine whether an attorney should be disqualified. "In order to prevail on a motion to disqualify an attorney, the moving party must establish: (1) that an attorney-client relationship existed between the attorney and the former client; and (2) that there is a substantial relationship between the two representations." Burkes v. Hales, 165 Wis. 2d 585, 591, 478 N.W.2d 37, 40 (Ct. App. 1991) (citation omitted).

¶ 12. If the representation is dual (i.e., one attorney is representing two parties in the same action) the circuit court will not be faced with the two-part test of Burkes. Rather, it will need to answer two questions: (1) whether the attorney "has undertaken representation which is adverse to the interests of a present client or the interests of a third party with whom the attorney has a substantial relationship," La Crosse County Dep't of Soc. Servs. v. Rose K., 196 Wis. 2d 171, 178, 537 N.W.2d 142, 145 (Ct. App. 1995), and (2) whether the client has made a knowing, voluntary, written waiver of actual and potential conflicts inherent in the representation. See State v. Kaye, 106 Wis. 2d 1, 16, 315 N.W.2d 337, 343 (1982).

¶ 13. The rule that an attorney should generally be disqualified if a conflict or serious potential for conflict exists was established to " 'preserve the confidences and secrets of a client,' and to 'avoid . . . even the appearance of professional impropriety.'" Berg, 141 Wis. 2d at 886, 416 N.W.2d at 647 (citation omitted). The circuit court is not required to make a finding that a breach of ethical standards or client confidentiality has occurred, but only to conclude that the attorney has undertaken representation that is adverse to the interests of a client. See Rose K., 196 Wis. 2d at 177, 537 N.W.2d at 144. There need not be .an actual conflict of interest; a serious potential conflict of interest is enough for a circuit court, in the exercise of its discretion, to disqualify an attorney. See id. (citing State v. Miller, 160 Wis. 2d 646, 659, 467 N.W.2d 118, 123 (1991)).

¶ 14. In the case at hand, Cavey has represented to the circuit court and to this court that she is providing dual representation to Lester and Lillian in regard to objecting to the confirmation of the sale of Lillian's house and also in regard to the Watts review of Lillian's placement. Because Guerrero has objected to Cavey's representation of Lillian, we must determine whether Cavey has undertaken a representation which is adverse to Lillian's interests. We begin by noting that " '[d]oubts as to the existence of an asserted conflict of interest should be resolved in favor of disqualification.' " Berg, 141 Wis. 2d at 890, 416 N.W.2d at 648 (citation omitted).

¶ 15. We find guidance in Rose K., where we considered whether an attorney who prosecuted a father in a paternity action and represented the county in child support enforcement actions could also act as the guardian ad litem for those same children in a CHIPS proceeding. In doing so, we examined the practical effects of dual representation. See Rose K., 196 Wis. 2d at 176, 537 N.W.2d at 144. In our analysis, we asked:

Should [the attorney] commence a support action and satisfy her client, the state, and a person with whom she has a contractual relationship, [the county]? Or should she not do so because her other clients, [the] children, could use the extra money for an item not provided through AFDC payments? If [the father] fails to pay what is ordered, should [the attorney] attempt to incarcerate him, thus depriving the children of a father? These conflicts are real, and they place [the attorney] in a position that no attorney should face: deciding which of two clients she will serve.

Id. at 179, 537 N.W.2d at 145 (emphasis added).

¶ 16. The conflicts of interest here are as real as they were in Rose K., and they have similar practical effects on the two potential clients. First, Lester is seeking to purchase Lillian's house at a below-market price. He is objecting to Lillian's guardian's petition to confirm a sale for $40,000 more than he has offered. Second, Lester is living in Lillian's house without paying rent. Lillian's guardian has requested $650 per month. Third, it is in Lester's interest to persuade Lillian to seek a change in her protective placement from the CBRF to her house, so his wishes in regard to purchasing the house have a better opportunity for realization.

¶ 17. Lester argues that his interests are not inconsistent with Lillian's because she wants to return home. However, all the medical reports in the record and the representations of the guardian ad litem show that returning to her house may not be in Lillian's best interests. Furthermore, the house has expenses for its maintenance which Lester's rental payments would help to defray, whether Lillian returns home or not. Further, if Lillian is unable to return home, it may be in her best interest to sell the house at the highest price available. Lillian has two other sons who are in agreement to sell the house, but not at less than fair market value.. However, if Cavey is to vigorously represent Lester, she must try to find ways to block the sale to the buyer secured by Arndt, she must advocate for Lester to live rent-free, and she must try to establish that Lillian should have the opportunity to return to her house, even if to do so would be contrary to Lillian's well being. Furthermore, in her efforts to help Lester, Cavey's actions have been noted by Arndt as the reason she could not continue as Lillian's guardian. Lillian's guardian ad litem has noted similar concerns about Cavey's aggressiveness on behalf of Lester. Therefore, based on the record before us, we conclude that Lillian's and Lester's interests are adverse, resulting in a conflict of interest in Cavey's representation of Lillian.

Waiver of Conflict.

¶ 18. Having determined that Lester and Lillian's interests are adverse, we must next address Cavey's assertion that Lillian consented to the dual representation after full disclosure, thereby waiving any conflicts of interest. Cavey states that she disclosed to Lillian the "risks and benefits" of the dual representation and that Lillian signed a document waiving all conflicts, consistent with SCR 20:1.7(b). Therefore, Cavey claims there is no basis for her disqualification.

¶ 19. Supreme Court Rule 20:1.7 addresses how an attorney should proceed once a conflict or potential conflict of interest has been established. It provides:

Conflict of interest: general rule, (a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) each client consents in writing after consultation.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited fay the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents in writing after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

The parties dispute whether our analysis of this conflict should be taken under (a) or (b). However, both (a) and (b) require written consent by both clients before a waiver is effective. Having determined that a conflict of interest exists, we turn our attention to whether Lillian, who has been declared incompetent, can knowingly and voluntarily waive the conflict, thereby consenting to the dual representation. We conclude that she is legally incapable of doing so.

¶ 20. Whether a person who has been adjudicated incompetent, such that a guardian of her person and property and a protective placement are required, has the capacity to waive a conflict of interest is a matter of first impression in Wisconsin. In order to resolve the question presented, we examine whether a knowing and voluntary waiver is possible in such circumstances.

¶ 21. An effective waiver of a conflict or potential conflict of interest which is knowing and voluntary requires the lawyer to disclose the following: (1) the existence of all conflicts or potential conflicts in the representation; (2) the nature of the conflicts or potential conflicts, in relationship to the lawyer's representation of the client's interests; and (3) that the exercise of the lawyer's independent professional judgment could be affected by the lawyer's own interests or those of another client. On the part of the client, it also requires: (1) an understanding of the conflicts or potential conflicts and how they could affect the lawyer's representation of the client; (2) an understanding of the risks inherent in the dual representation then under consideration; and (3) the ability to choose other representation. See State v. Cobbs, 221 Wis. 2d 101, 105-06, 584 N.W.2d 709, 710 (Ct. App. 1998); Kaye, 106 Wis. 2d at 14-16, 315 N.W.2d at 342-43; SCR 20:1.7.

¶ 22. Here, the record contains no representation by Cavey of what she disclosed to Lillian in regard to her opinion of the conflicts or potential conflicts of interest inherent in her dual representation in this action or what effect such conflicts may have on her representation of Lillian. Indeed, Cavey represented to the court there were no conflicts. Likewise, the record contains no testimony of what Lillian might have understood about the conflicts which we have identified or her understanding of the effect they could have on Cavey's representation of her. However, we note that when a client consents to dual representation in the face of a conflict of interest, that consent puts the client on notice that the attorney's loyalty may become impaired at some juncture. Therefore, the client's understanding is a necessary component of dual representation.

¶ 23. Here, by asserting that Lillian consented to the dual representation, Cavey in essence contends that Lillian has the ability to fully understand all that dual representation imports. However, Cavey has never contended that the circuit court erred when it found Lillian incompetent under the law. Further, the petition for guardianship and protective placement for Lillian was granted because the court determined that Lillian could not care for herself and that she was confused and not oriented to place or time. The record also reflects that Lillian's dementia has progressed to the point where she has required emergency commitments to Mendota Mental Health Institute due to increasing confusion and anxiety which have resulted in physical attacks on her caregivers and on other patients. There is nothing in the record which even suggests that Lillian has the capacity to knowingly consent to the dual representation proposed by Cavey. Therefore, because Lillian has been adjudicated incompetent such that a guardian of her person and property and a protective placement are required, we conclude that, as a matter of law, Lillian was incapable of making a knowing and voluntary waiver of the conflict of interest Cavey has. Accordingly, any waiver executed by Lillian is invalid, and Cavey was never lawfully retained by Lillian.

¶ 24. The circuit court recognized the existence of the conflict of interest. However, the court denied the guardian ad ¡item's motion for disqualification because it believed Lillian would receive adequate representation so long as Longert remained Lillian's co-counsel to ensure loyalty to her affairs. While we understand the court's rationale, having co-counsel for Lillian does not negate our conclusion that Cavey has an impermissible conflict of interest and therefore cannot represent Lillian. Longert's presence does not resolve Cavey's conflict of interest, nor does it provide a substitute for Lillian's knowing and voluntary waiver. Accordingly, we conclude that the circuit court erred in denying Guerrero's motion to disqualify Cavey from representing Lillian.

Frivolous Appeal.

¶ 25. Finally, Cavey has moved this court, pursuant to Wis. Stat. § 809.25(3), for attorney's fees and costs, contending that Guerrero's appeal is frivolous. We have ruled in favor of Guerrero. His appeal is not frivolous.

CONCLUSION

¶ 26. Because we conclude that a conflict of interest existed, that Lillian was not competent to waive that conflict, and that Longert's appearance as co-counsel to Cavey did not negate Cavey's conflict of interest, we reverse the circuit court's order, which permitted Cavey's continued representation of Lillian.

By the Court. — Order reversed.

       Lester's continued agreement with Lillian's change in placement was reaffirmed at the January 27,1999 pretrial conference, where Cavey informed the court on Lester's behalf, "[S]he is now at a Group Home, a very nice Group Home.... So there is no objection to that placement."

       The court's directive in regard to rent is not part of the record before us on appeal, but Arndt's letter requesting that Lester comply with that request is. Further reference to Lester's nonpayment of rent appears in the court's comments during the hearing on Guerrero's motion to remove Cavey as adversary counsel for Lillian.

         See State ex rel. Watts v. Combined Community Servs. Bd., 122 Wis. 2d 65, 362 N.W.2d 104 (1985).

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       In a criminal context, if the issue was not raised at the circuit court, on appeal a defendant must show by clear and convincing evidence that there was an actual conflict of interest which adversely affected the representation the attorney provided. See State v. Street, 202 Wis. 2d 533, 543, 551 N.W.2d 830, 836 (Ct. App. 1996).

       After Arndt moved to confirm a sale for $115,000, Lester made a second offer to purchase the house for $75,000, with a life estate to Lillian.

       There are repeated references in the record to Lester's "manipulation" of Lillian and one reference to alleged emotional and physical abuse of Lillian by Lester. Those allegations would be relevant to the circuit court's determination of whether Lillian should return to live with Lester at her house. It would be in Lester's interest to put those allegations aside and in Lillian's interest to thoroughly investigate them and prove them, if proof be had.

       Cavey also argues that this case is controlled by Tamara L.P. v. County of Dane, 177 Wis. 2d 770, 503 N.W.2d 333 (Ct. App. 1993). In that case, we held that the circuit court erred in appointing as guardian ad litem the attorney who had previously acted as adversary counsel in the involuntary commitment proceedings of a ward. See id. at 774, 503 N.W.2d at 334. Applying the substantial relationship test, we concluded that the attorney should have been disqualified and the circuit court erred in concluding that an actual conflict of interest need exist before a motion to disqualify may be granted. We stated that a potential conflict was sufficient to satisfy the substantial relationship test. See id. at 784-85, 503 N.W.2d at 338. Cavey contends that Tamara L.P. demonstrates "the differing roles of guardian ad litem and defense counsel" and that those roles are "inherently in conflict." Cavey then asserts that the guardian ad litem "is not the gatekeeper who can pick and choose how the ward's own interests will be represented." Counsel's reliance on Tamara L.P. for these assertions is misplaced. If anything, Tamara L.P. supports Guerrero's motion in that it recognizes that an attorney may be disqualified even if the conflict of interest has not evolved to an actual conflict, but instead remains a potential one. We see no basis for Cavey's claim that Tamara L.P. compels us to decide this appeal in her favor.