author: CURLEY, J. FINE, J. SCHUDSON, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. William A. Silva, Defendant-Appellants.

    Court of Appeals

      Nos. 02-1502-CR, 02-2050-CR.

      Submitted on briefs March 4, 2003.

    Decided August 5, 2003.

    2003 WI App 191
    (Also reported in 670 N.W.2d 385.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Martin E. Kohler and Brian Kinstler of Kohler & Hart, LLP, of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, Attorney General, and Gregory M. Weber, assistant attorney general.
    Before Fine, Schudson and Curley, JJ.

       Petition to review denied 12-16-03.

   CURLEY, J.

¶ 1. William A. Silva appeals the judgment enteréd following a bench trial, convicting him of one count of first-degree sexual assault, contrary to Wis. Stat. § 948.02(1) (1999-2000), and from the order denying his postconviction motion. He argues that his attorney was ineffective for: (1) not knowing that, pursuant to the holding of State v. Wallerman, 203 Wis. 2d 158, 552 N.W2d 128 (Ct. App. 1996), overruled by State v. Veach, 2002 WI 110, 255 Wis. 2d 390, 648 N.W2d 447, a stipulation could have been proffered that might have prevented the introduction of damaging "other acts" evidence; (2) failing to object to the admission of "other acts" evidence; and (3) abdicating his role in the adversarial process by conceding Silva's guilt in closing argument. Further, he contends that: (1) his jury waiver was invalid because he waived his right to a jury trial based on the mistaken advice of his attorney; (2) the trial court erred in admitting the "other acts” evidence and in admitting other irrelevant and prejudicial testimony regarding Silva's guilty appearance; and (3) he is entitled to resentencing because the trial court failed to inform him of two critical advisories under the truth-in-sentencing law, see Wis. Stat. § 973.01(8).

¶ 2. After reviewing the record, we are satisfied Silva's attorney's performance was deficient as a result of his ignorance of the Wallerman holding, but he was not prejudiced by this conduct. Further, we adopt the postconviction court's findings, as they are not clearly erroneous, that Silva decided freely and voluntarily to waive his right to a jury before the trial court ruled on the "other acts" evidence, and that emphasizing the de minimis nature of the offense in closing argument was an appropriate strategy As to the evidentiary issues, we conclude that the trial court properly exercised its discretion in admitting the "other acts" evidence and the other evidence concerning Silva's guilty appearance. Finally, we are satisfied that the postconviction court cured the trial court's sentencing omissions in failing to personally advise Silva of the explanations required by Wis. Stat. § 973.01. Thus, we affirm.

I. Background.

¶ 3. In June 2000, Silva was charged with one count of first-degree sexual assault of a child. The charge arose out of an accusation by his six-year-old niece, M.S., that Silva got into bed with her, put his hand down her pants, and rubbed her buttocks. The criminal complaint states that Silva also rubbed his "winkie" against her legs. Silva waived his preliminary hearing. Later, the State filed a motion in limine seeking to introduce Wis. Stat. § 904.04(2) evidence of three prior sexual assaults.

¶ 4. After the State filed its motion in limine, but before the trial court ruled on the "other acts" evidence, Silva waived his right to a jury trial on the advice of his trial attorney. At the Machner hearing, the trial attorney admitted that when he advised Silva to waive his jury, he was unaware of the possibility of entering a Wallerman stipulation, which might have prevented the State from admitting the "other acts" evidence to show intent.

¶ 5. Just prior to the commencement of the trial, over Silva's attorney's objection, the trial court ruled that the "other acts" evidence was admissible. After the trial court granted the State's motion, the State and Silva's attorney agreed to a stipulation permitting the records of the prior offenses to be entered into evidence in lieu of the past victims' live testimony.

¶ 6. At trial, the State called the victim, M.S., to the stand, as well as several other witnesses. All were cross-examined by Silva's attorney. One of those witnesses was Silva's brother, the father of the victim, who testified that when he confronted Silva with his daughter's accusation, Silva "turned dirty yellow to me and nervous." No objection was made to this testimony. The brother also testified, over Silva's objection, that before he learned of the alleged assault, Silva demonstrated his guilt when he sat down during a prayer service, while everyone else remained standing, when discussing the theme "sinning again." No witnesses were called by the defense.

¶ 7. At the conclusion of the trial, Silva's attorney gave a brief closing argument. During the closing argument, Silva's attorney admitted that the victim was "being truthful, to some extent," and that Silva had "technically" committed the crime. Silva was found guilty. At the urging of the State, the trial court proclaimed that it had not relied on the Wis. Stat. § 904.04(2) "other acts" evidence in reaching its verdict. Silva was sentenced to twenty-five years of confinement and twenty years of extended supervision; however, the trial court failed to give the advisories mandated by the new truth-in-sentencing law.

¶ 8. Silva filed a postconviction motion and, as noted, the trial court held a Machner hearing. The postconviction court determined that Silva decided to waive his right to a jury before the State filed its motion seeking the admission of "other acts" evidence, even though the State's motion was filed on August 2, 2000, and Silva did not actually sign the jury waiver until August 23, 2000. The postconviction court also determined that while his attorney's performance was deficient for his lack of knowledge of the Wallerman holding, Silva suffered no prejudice since the trial court found him guilty without considering the "other acts" evidence. Additionally, the postconviction court found that Silva's attorney did object to the admission of the "other acts" evidence and that his attorney's closing argument, concentrating on the de minimis nature of the offense, constituted an appropriate strategy. Finally, the postconviction court provided Silva with the missing truth-in-sentencing mandates.

II. Analysis.

A. Silva's attorney was deficient, but Silva was not prejudiced as a result.

¶ 9. Silva argues that his attorney was ineffective for three reasons. First, he submits that his attorney was unaware of the holding in Wallerman and, thus, failed to secure a stipulation preventing the "other acts" evidence from being admitted. Next, Silva claims his attorney was ineffective for failing to object to the "other acts" evidence. Finally, he submits that his attorney's closing argument, in which he stated that the victim was "being truthful, to some extent," and that Silva was "technically" in violation of the criminal statute prohibiting the sexual assault of a child, amounted to a concession of guilt and, consequently, his counsel "abdicated] his role in the adversarial process." He argues that, as a result, his attorney's conduct was both deficient and prejudicial, and his jury waiver was invalid. We disagree.

¶ 10. In order to prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's performance was deficient and that the defendant was prejudiced as a result of this deficient conduct. See Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Pitsch, 124 Wis. 2d 628, 633, 369 N.W2d 711 (1985). To prove deficient performance, the defendant must identify specific acts or omissions of counsel that fall "outside the wide range of professionally corn-petent assistance." See Strickland, 466 U.S. at 690. To show prejudice, the defendant must demonstrate that the errors were so serious that the result of the proceeding was unreliable. Id. at 687. If the defendant fails on either prong — deficient performance or prejudice— the ineffective assistance of counsel claim fails. Id. at 697. We "strongly presumeG" counsel has rendered adequate assistance. Id. at 690.

¶ 11. We have reviewed Silva's claim concerning his attorney's ignorance of the possibility of a Waller-man stipulation in the context of an ineffective assistance of counsel claim and we conclude that his attorney's lack of knowledge of the Wallerman holding constituted deficient performance. However, we are obligated to review ineffective assistance of counsel claims based on the law in place at the time of the appeal, and the Wallerman holding has been overturned; thus, we are compelled to conclude that Silva suffered no prejudice. See Lockhart v. Fretwell, 506 U.S. 364, 372-73 (1993).

¶ 12. In Wallerman, this court set out a procedure that, when utilized by the defendant, could foreclose the State from introducing "other acts" evidence. According to Wallerman, if the defendant concedes the element of the charged offense that the "other acts" evidence was directed at proving, the State might be foreclosed from introducing the "other acts" evidence. See Wis. Stat. § 904.04(2). This holding, that a stipulation could be proffered and accordingly eliminate the reasons for the admission of the "other acts" evidence, has been overruled in part by State v. Veach, 2002 WI 110, 255 Wis. 2d 390, 648 N.W.2d 447. That case held that the State is not obligated to accept Wallerman stipulations: "While we do not hold that Wallerman stipulations are invalid per se, we do hold that, with the exception of stipulations to a defendant's status, the state and the court are not obligated to accept stipulations to elements of a crime . . . Veach, 255 Wis. 2d 390, ¶ 118. Additionally, it concluded:

[A] Wallerman stipulation in a child sexual assault case is directly contrary to the greater latitude rule for the admission of other acts evidence in child sexual assault cases. The purpose of a Wallerman stipulation in this case-involving an allegation of child sexual assault-is to preclude the admission of other acts evidence. The purpose of the greater latitude rule in cases involving allegations of child sexual assault is to "permit a more liberal admission of other crimes evidence."

Veach, 255 Wis. 2d 390, ¶ 122 (quoting State v. Davidson, 2000 WI 91, ¶ 44, 236 Wis. 2d 537, 613 N.W.2d 606 (emphasis added by Veach) (citations omitted)). Here, what allegedly would have been stipulated to, had trial counsel been aware of Wallerman, was the occurrence of three separate prior instances of sexual assault. This evidence is relevant to the motive element of the crime. As Veach discusses, and as made clear by Davidson, 236 Wis. 2d 537, ¶ 65, and State v. Hammer, 2000 WI 92, ¶ 25, 236 Wis. 2d 686, 613 N.W2d 629, the State must prove every element of the crime, even those elements that are undisputed. Thus, as the State is not obligated to accept Wallerman stipulations, and as the "other acts" evidence is relevant to establishing an element of the crime, it is unlikely that the State would consent to a defendant's offer to stipulate to an element of the charged crime if the introduction of that evidence would be prohibited as a result. Accordingly, the failure to offer a Wallerman stipulation is not deficient performance under Veach. See Veach, 225 Wis. 2d 390, ¶ 136 (stating "[w]e .. . overrule Wallerman and DeKeyser to the extent that those cases state or imply that the state or the court must accept a Wallerman stipulation, or that failure of trial counsel to offer a stipulation is deficient performance regardless whether the state or the court would have accepted the stipulation."). Moreover, as noted, the trial court found that Silva decided to waive his right to a jury trial before the State sought to introduce the "other acts" evidence. Therefore, Silva cannot successfully claim his attorney's performance in not knowing about Wallerman was ineffective.

¶ 13. Next, our review of the record belies Silva's claim that his attorney failed to object to the "other acts" evidence regarding the complaints that he previously sexually molested three other young girls. Silva is wrong; his attorney did object, although he filed no brief in opposition to that filed by the State.

[Defense Counsel]: I - I didn't file an objection, Your Honor, because I didn't think it was necessary.
It's the Defendant's, ah, position that, ah, the motion should be, ah, denied. I don't -1 think that, ah, to allow evidence of, ah, events that may have occurred in 1991 and 1994 are so far removed from the present that it would - doesn't outweigh the prejudice to the Defendant. Um, to recall witnesses to recant what allegedly happened in 1991 and 1994 would be extremely prejudicial to my client, and if, ah, and when the Court finds this Defendant guilty, if that happens,
. the Court then could examine anything that transpired as far as this Defendant is concerned on prior matters, ah, for the purposes of sentencing. And to call witnesses that were of tender age in 1991 and 1994 and have them testify at this time, ah, I believe would be totally prejudicial and it should not be allowed.

Thus, Silva is not entitled to relief on this ground.

¶ 14. Finally, we address Silva's last ineffective assistance of counsel claim, which alleges that his attorney's concession of Silva's guilt entitles him to a new trial. Again, we disagree.

¶ 15. Silva argues that his attorney's closing argument, in which he commented favorably on the victim's credibility and conceded that Silva was "technically" guilty of the charged offense, was improper per the holding in State v. Gordon, 2002 WI App 53, 250 Wis. 2d 702, 641 N.W2d 183, and resulted in his attorney "abdicating his role in the adversarial process." See United States v. Cronic, 466 U.S. 648, 656-57 (1984) (if the trial process "loses its character as a confrontation between adversaries, the constitutional guarantee is violated."). Here, the closing argument is stated in its entirety:

Your Honor, it's very difficult to cross-examine a six-year-old child. I - I also believe that the child was being truthful, to some extent.
Um, I'm concerned about the fact that, ah, when she was asked questions about time by the District Attorney - ah - this is after she had testified that the incident, ah, lasted approximately one minute - whether we can give credibility to that statement, whether it was longer or not. The facts still remains is that, um, she said it took one minute.
First[-]degree sexual assault is a very, very serious - very serious crime. I would assume that the State's case is based upon the fact that this young girl was 13 - under 13 years of age. I tried to have the Court find out from the witnesses what the extent of the sexual contact was. The extent of the sexual contact was the fact that he had rubbed her buttock, not her vaginal area, and, ah, that, ah, he had his clothes on. Ah, at no time was he exposed. Um, that evidently is substantiated by, ah, our Exhibit No. 1, which the police officer recorded by stating that he was clothed.
Um, I suppose technically this is a case of first Hdegree sexual assault. I don't like to say that, however, I believe it's of such insignificant proportions as to what we generally would call a first[-]clegree sexual assault, and that is that, um, I don't believe the State has proved beyond a reasonable doúbt, ah, the fact that, ah, the elements have been proved.
That's the only comment I have to make at this time.

¶ 16. At the Machner hearing, Silva's attorney testified that his closing argument strategy was to point out to the trial court that the case had been overcharged as a first-degree sexual assault. He agreed that he characterized the touching in question as just "minor touching." The postconviction court determined that Silva's attorney's closing strategy was appropriate. We adopt the postconviction court's finding in this regard as it is not clearly erroneous. State v. DeKeyser, 221 Wis. 2d 435, 442, 585 N.W.2d 668 (Ct. App. 1998) (stating we will uphold the postconviction court's factual findings "concerning circumstances of the case and counsel's conduct and strategy" unless they are clearly erroneous), overruled on other grounds by State v. Veach, 2002 WI 110, 255 Wis. 2d 390, 648 N.W2d 447.

¶ 17. Finding the trial attorney's handling of the little girl on cross-examination appropriate as a matter of strategy, the postconviction court remarked:

I find in [the trial lawyer's strategizing about the defense he was concerned and I find the concern appropriate [-] that attacking the credibility of a six-year[-]old child is a difficult and delicate feat that one has to on one hand be cautious and treat the child with kid gloves and yet has to be able to attack the understanding or comprehension of a child as to what happened or if it happened.

¶ 18. Silva's attorney engaged in selective cross-examination of M.S., from which he was able to establish that M.S.'s concept of time was suspect because the victim claimed to be assaulted in her sister's bed at a time of day contrary to her mother's testimony. Silva's attorney correctly observed in his closing argument that examining a six-year-old is a delicate task: "Your Honor, it's very difficult to cross-examine a six-year-old child." Accordingly, Silva's attorney elected to question the length of the attack, to highlight the confusion of the victim as to when it occurred, and to argue that the offense was "of such insignificant proportions as to what we generally would call a first[-]degree sexual assault," since Silva never exposed himself and only inappropriately touched his niece on the buttocks.

¶ 19. We are satisfied that, under the circumstances, Silva's allegations do not defeat the strong presumption that trial counsel rendered adequate assistance. Silva's trial attorney did as well as most attorneys would have done. Stating that Silva was "technically guilty" had two beneficial effects: first, it telegraphed to the trial court that if any doubt existed in the trial court's mind, the minor nature of the act could act as a controlling factor in finding Silva not guilty; and second, the strategy emphasized the idea that the matter was overcharged, setting up an argument for leniency at sentencing. Thus, counsel did not abdicate his role in the adversarial process.

¶ 20. Moreover, given the strength of the State's case, the attorney's closing argument was also not beyond the realm of "reasonably effective representation," which is the test we must apply. See State v. McMahon, 186 Wis. 2d 68, 80, 519 N.W.2d 621 (Ct. App. 1994). The six-year-old girl was a very articulate witness. She reported the attack to her mother as soon as she was able to get her mother's attention, which was the next day. Another significant consideration is the fact that the girl's father testified that when he confronted Silva, his half-brother, Silva not only displayed all the signs of guilt, but also did not deny the accusation. See Caccitolo v. State, 69 Wis. 2d 102, 110, 230 N.W.2d 139 (1975) (silence in the face of an accusation that most people would deny is an admission). Thus,* Silva is not entitled to a new trial on this basis.

B. Silva knowingly waived his right to a jury.

¶ 21. Silva argues that he waived his right to a jury based upon the inaccurate advice of his attorney, who was unaware of the Wallerman holding, which would have foreclosed the State from introducing "other acts" evidence, when he urged him to waive his right to a jury. Silva's attorney testified at the Machner hearing that he recommended a bench trial because he believed that a more vigorous cross-examination of the victim could be conducted in a bench trial and, accordingly, that the trial court could then better assess the credibility of the victim. Also, he was concerned that any of the jurors who had young children would identify with the victim.

¶ 22. When examining whether a party should be relieved from a- waiver of jury trial, this court reviews the trial court's decision to see if there has been an erroneous exercise of discretion. See State v. Cloud, 133 Wis. 2d 58, 63, 393 N.W.2d 123 (Ct. App. 1986). A trial court's discretion in deciding a motion to withdraw a jury waiver "is not unbridled and should be exercised liberally in favor of granting the defendant's right to a jury trial." Id. A jury waiver is valid if the person waived that right personally, knowingly, voluntarily and intentionally, and the record clearly indicates a willingness and intent to waive his or her right. See Wis. Stat. § 972.02(1); State v. Grant, 230 Wis. 2d 90, 95, 601 N.W.2d 8 (Ct. App. 1999). Thus, to be valid, "a jury trial waiver must be an intentional relinquishment or abandonment of a known right or privilege." See State v. Anderson, 2002 WI 7, ¶ 11, 249 Wis. 2d 586, 638 N.W.2d 301 (citations omitted). However, the trial court's finding that a party's jury waiver was proper should be accepted unless it is clearly erroneous. See Wis. Stat. § 805.17(2) and Wis. Stat. § 972.11(1).

¶ 23. The postconviction court refused to relieve Silva from his jury waiver because it determined that Silva had decided to waive his right to a jury trial before the State filed its motion seeking to introduce "other acts" evidence.

¶ 24. When waiving a constitutional right, one must do so voluntarily, knowingly, and intelligently, with "sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States, 397 U.S. 742, 748 (1970). The determination of whether there has been a valid waiver "must depend upon the unique circumstances" of each particular case. See Adams v. United States ex rel. McCann, 317 U.S. 269, 278 (1942).

¶ 25. The postconviction court accepted Silva's attorney's averments that Silva elected to have a bench trial because of his concern that the jury would be sympathetic to M.S., and not because of his concern over the admission of evidence regarding his prior conduct. We must accept the postconviction court's findings as they are not clearly erroneous. See DeKeyser, 221 Wis. 2d at 442.

¶ 26. Although at the time when counsel advised Silva to waive his right to a jury Silva's counsel was unaware of the possibility that evidence regarding Silva's prior assaults could be kept from a jury by way of a Wallerman stipulation, Silva's waiver was based on his concern that the jury would be made up of mothers and fathers of young children, and not on the possibility that "other acts" evidence would be admitted. Silva waived his right because he thought that he would fare better in a bench trial. Indeed, Silva decided to do so even before the State sought to introduce the "other acts" evidence. Moreover, Silva had waived his right to a jury trial on at least one prior occasion, and was well aware of the significance of that waiver. Thus, we conclude that Silva's waiver of his right to a jury was knowingly and intelligently made, and that the post-conviction court properly exercised its discretion when it failed to relieve Silva of his waiver.

C. The trial court properly exercised its discretion in admitting the "other acts" evidence.

¶ 27. The trial court ruled that the evidence of Silva's prior assaults was relevant, probative and could be admitted for the purposes of showing plan, scheme and/or motive. The court also found that the "probative value outweighs any prejudicial effect." The State wished to introduce evidence regarding three prior incidents of sexual assault. Two of the three incidents were criminal convictions obtained in 1990 and 1994. In one case, the accuser was Silva's thirteen-year-old niece; in the other, the accuser was his girlfriend's thirteen-year-old daughter. The third incident, for which no charges were filed, involved Silva's daughter, who claimed that Silva fondled her twice when she was approximately nine years old. Silva now claims that his attorney's objection to the evidence amounted to no objection at all because he was not specific in his statements opposing the admission of the evidence and did not file a brief in opposition to the State's, thereby almost guaranteeing the admission of the "other acts" evidence. The postconviction court found that Silva's attorney sufficiently objected to the admission of the evidence.

¶ 28. We are satisfied, after applying the three-part test set forth in State v. Sullivan, 216 Wis. 2d 768, 771-73, 576 N.W.2d 30 (1998), that the trial court properly admitted the evidence regarding the prior assaults. When considering the admissibility of "other acts" evidence, the trial court should begin with the Sullivan analysis: (1) "Is the other acts evidence offered for an acceptable purpose under [Wis. Stat. § ] 904.04(2), such as establishing motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident?" Id. at 772. (2) "Is the other acts evidence relevant, considering the two facets of relevance set forth in [Wis. Stat. § ] 904.01?" Id. (3) "Is the probative value of the other acts evidence substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence?" Id. at 772-73. Here, the answer to the first two questions is "yes"; the answer to the third question is "no." The evidence was properly offered to show motive, intent, and an absence of mistake. The evidence met the test for relevancy found in Wis. Stat. § 904.01. Finally, the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice or confusion of the issues. Thus, the trial court properly admitted the "other acts" evidence.

D. The evidence of Silva's demeanor at a prayer service is admissible.

¶ 29. Finally, Silva claims that the trial court erred in: (1) permitting testimony from his brother that Silva "turned dirty yellow to me and nervous" when confronted with his niece's accusation; and (2) admitting evidence of his demeanor at a prayer service. He argues the evidence was irrelevant and prejudicial. We note that no objection was made to the first piece of evidence and, thus, it is waived. See Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287 N.W2d 140 (1980). Regarding the second piece of evidence, Silva's brother testified that on the day of the assault Silva attended a service that discussed the act of "sinning again." Silva's brother stated that Silva sat down during the discussion while everyone else remained standing. This behavior is consistent with the conduct of a person who has recently committed a crime and is admissible as such. See Paulson v. State, 118 Wis. 89, 106, 94 N.W. 771 (1903) ("Conduct of a suspected person after the crime is a legitimate subject for consideration, as bearing upon the probability of his guilt. . . ."). Thus, the trial court correctly permitted the witness to testify to his observations of Silva's guilt on the day of the crime.

¶ 30. For the reasons stated, the judgment and order are affirmed.

By the Court. — Judgment and order affirmed.

FINE, J.

¶ 31. (concurring). I join fully in the Majority opinion, but write briefly to respond to the Dissent's contention that William A. Silva should have, and his victim should have to endure, a new trial.

¶ 32. The Dissent complains that Silva's trial lawyer conceded too much in his closing argument to the trial court in this nonjury, bench trial. The Dissent also complains that Silva's lawyer gave no opening statement and called no witnesses. I address these matters in turn.

¶ 33. The State also did not give an opening statement. It is common for lawyers to dispense with opening statements in bench trials. Thus, the mutual eschewal of opening statements in a trial to the court sitting without a jury by both the State and the defense is hardly beyond the realm of "reasonably effective representation," which, as the Majority notes, is the standard we must apply. See State v. McMahon, 186 Wis. 2d 68, 80, 519 N.W2d 621, 626 (Ct. App. 1994).

¶ 34. It is also true that Silva's lawyer did not call any witnesses. The Dissent does not tell us, however, how this was ineffective legal representation: the Dissent neither points to what witnesses should have been called, nor tells us how this prejudiced Silva. See State v. Flynn, 190 Wis. 2d 31, 48, 527 N.W.2d 343, 349-350 (Ct. App. 1994) (defendant who alleges that his lawyer was ineffective because the lawyer did not do something, must show with specificity what the lawyer should have done and how that would have either changed things or, at the very least, how that made the result of the trial either unreliable or fundamentally unfair).

¶ 35. The Dissent complains that Silva's trial lawyer gave a perfunctory closing argument, which conceded technical guilt. He did more, however. I, as does the Majority opinion, set out the trial lawyer's closing argument in full:

Your Honor, it's very difficult to cross-examine a six-year-old child. I — I also believe that the child was being truthful, to some extent.
Um, I'm concerned about the fact that, ah, when she was asked questions about time by the District Attorney — ah — this is after she had testified that the incident, ah, lasted approximately one minute — whether we can give credibility to that statement, whether it was longer or not. The fact still remains is that, um, she said it took one minute.
First[-] degree sexual assault is a very, very serious —■ very serious crime. I would assume that the State's case is based upon the fact that this young girl was 13 — under 13 years of age. I tried to have the Court find out from the witnesses what the extent of the sexual contact was. The extent of the sexual contact was the fact that he had rubbed her buttock, not her vaginal area, and, ah, that, ah, he had his clothes on. Ah, at no time was he exposed. Um, that evidently is substantiated by, ah, our Exhibit No. 1, which the police officer recorded by stating that he was clothed.
Um, I suppose technically this is a case of first Hdegree sexual assault. I don't like to say that, however, I believe it's of such insignificant proportions as to what we generally would call first[-] degree sexual assault, and that is that, um, I don't believe the State has proved beyond a reasonable doubt, ah, the fact that, ah, the elements have been proved.

¶ 36. The postconviction court found that the evidence was such "that if [the closing argument] was a deficiency it did not contribute unfairly or inappropriately to the conviction [in] that [the closing argument] was not a material factor in the [trial] Court's decision" finding Silva guilty beyond a reasonable doubt. Of course. The trial court sat through the testimony; it, unlike a jury, did not need to have the evidence masticated and marshaled.

¶ 37. Moreover, as the Majority opinion points out:

given the strength of the State's case, the attorney's closing argument was also not beyond the realm of 'reasonably effective representation, which is the test we must apply. The six-year-old girl was a very articulate witness. She reported the attack to her mother as soon as she was able to get her mother's attention, which was the next day. Another significant consideration is the fact that the girl's father testified that when he confronted Silva, his half-brother, Silva not only displayed all the signs of guilt, but also did not deny the accusation.

Majority op. at ¶ 20. (Emphasis in original, citations omitted.) In light of this, for the Dissent to suggest that Silva's trial lawyer should have flatly denied everything, which is the essence of what the Dissent is saying, borders on advocating emulation of the tactic that will forever be associated with the former Iraqi Minister of Information, Mohammed Saeed al-Sahaf.

¶ 38. Had Silva's trial lawyer cannonaded his closing argument with explosions of denial, as the Dissent seems to suggest, I bet Silva would be arguing on appeal that such a strategy was "ineffective." Indeed, when a finding of guilt by a court sitting as the fact-finder in a bench trial is certain, as it was here, a strategy of candid amelioration of the bad facts is powerful advocacy; why should a lawyer be believed when he or she argues mitigation on sentencing when the lawyer was just, perhaps moments earlier, denying vigorously the irrefutable? Yet, this is the suicidal "advocacy" the Dissent commends. I respectfully disagree.

SCHUDSON, J.

¶ 39. (concurring/dissenting). I concur with the majority in many respects. On one issue, however — whether Silva was denied his right to a jury trial — I depart from part of the majority's analysis; and on another — whether defense counsel's closing argument constituted ineffective assistance — I disagree with the majority and conclude that a new trial is required.

A. Jury Trial

¶ 40. The majority correctly concedes that counsel's performance was deficient by virtue of his ignorance of Wallerman. Had Silva waived a jury trial based on counsel's erroneous advice, grounded in ignorance of Wallerman, then his jury waiver would have been invalid and his right to a jury trial would have to be restored. No further analysis would be needed. Prejudice would be clear because, under such circumstances, it is not to be measured by the reasonable probability of a different verdict, but rather, by the reasonable probability of a different result of the jury-waiver proceeding. See State v. Smith, 207 Wis. 2d 258, ¶ 276, 558 N.W.2d 379 (1997) ("The Strickland test is not an outcome-determinative test. In decisions following Strickland, the Supreme Court has reaffirmed that the touchstone of the prejudice component is 'whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.' " (quoting Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (emphasis added))).

¶ 41. In Smith, the supreme court elaborated that "[i]n certain instances, prejudice is presumed once deficient performance has been proven," id. at 278, and recounted various circumstances in which that is so, id. at 278-79. A review of the supreme court's eight examples reveals several proceedings that certainly would be deemed far more consequential than a jury-waiver hearing. See id.; see also State v. Stallings, 658 N.W.2d 106, 112 (Iowa 2003) (defense counsel’s failure to ensure defendant's jury waiver was valid constituted a structural defect; thus, prejudice was presumed for purposes of establishing ineffective assistance of counsel).

¶ 42. Here, to the extent that it focuses broadly on the reversal of Wallerman and the likely outcome of the trial, rather than narrowly on the result of the jury waiver proceeding, the majority misses the mark. Obviously, no one knows what the verdict would have been following a jury trial. But the result of the jury-waiver proceeding is known. Thus, if Silva's jury waiver was uninformed, due to faulty advice based on ignorance of Wallerman, his right to a new trial, with a jury if he so desired, would be clear. And contrary to what the majority implies, no subsequent development, including the overruling of Wallerman, would alter the immutable fact that Silva was denied his right to a jury trial.

¶ 43. Here, however, the majority correctly recognizes that the postconviction court's finding — that Silva decided to waive his right to a jury trial for reasons unrelated to counsel's ignorance of Wallerman — is not clearly erroneous. Indeed, that finding is substantially supported by defense counsel's testimony at the Mach-ner hearing. For that reason alone, counsel's deficient performance was not prejudicial; it did not deny Silva his right to a jury trial.

B. Closing Argument

¶ 44. Last year, with words that not only would seem to anticipate the instant case but also would refute the majority's rather desperate rationalization for defense counsel's closing argument, we declared:

[A] defense attorney may not admit his client's guilt, which is contrary to his client's plea of not guilty, unless the defendant unequivocally understands and consents to the admission. See Wiley v. Sowders, 647 F.2d 642, 649 (6th Cir. 1981). Logically, we also hold that an attorney may not stipulate to facts which amount to the "functional equivalent" of a guilty plea without the defendant's consent. See id.; see also People v. Carter, 354 N.E.2d 482, 485 (Ill. App. Ct. 1976) (stating that counsel's closing argument that was tantamount to an admission of guilt cannot be overlooked as mere errors in judgment or trial strategy).

State v. Gordon, 2002 WI App 53, ¶ 27, 250 Wis. 2d 702, 641 N.W2d 183, rev'd, 2003 WI 69, 262 Wis. 2d 380, 663 N.W.2d 765.

¶ 45. Until last month, our decision in Gordon should have controlled. (After all, in the instant case, defense counsel conceded, "I suppose technically this is a case of first-degree sexual assault." The rest of defense counsel's meager closing argument offered nothing to suggest otherwise.) But the supreme court reversed. See id., 262 Wis. 2d 380, ¶ 5. In doing so, however, the supreme court all the more clearly established why we must reverse here.

¶ 46. In Gordon, the supreme court held:

The concession [of the defendant's guilt] by counsel was not the functional equivalent of a guilty plea under the circumstances of this case, where it came in closing argument, on one count in a multiple-count case, after full adversarial testing of the State's case and after the defendant had admitted on the witness stand the facts constituting the offense.

Id., ¶ 5. The supreme court repeatedly emphasized that its conclusion was inextricably connected to two critical circumstances: (1) counsel conceded guilt on only one count in a three-count trial, while "argu[ing] vigorously for acquittal on the more serious felony and misdemeanor counts," id., ¶ 26; and (2) the defendant, testifying at trial, admitted the conduct constituting the conceded count and, therefore, "Gordon's attorney did not concede anything that Gordon had not admitted as a factual matter on the witness stand," id.

¶ 47. Citing numerous cases, and noting their significantly distinguishing features, the supreme court further emphasized the importance of these two circumstances. Id., ¶¶ 27-30. Any fair reading of the supreme court's decision leads to the inescapable conclusion that, but for either or both of those two circumstances, reversal is required.

¶ 48. Silva faced only one charge. At trial, Silva never testified; he never admitted the conduct constituting the crime. Nevertheless, in closing argument, defense counsel conceded Silva's guilt. The supreme court's decision in Gordon controls; Silva's conviction must be reversed.

C. The Ironic Link

¶ 49. One last link joins these two issues. And given the majority's treatment of the jury-waiver issue, the irony is interesting. Counsel's closing argument, at best, could have called upon a jury to nullify — i.e., to find Silva not guilty despite the uncontroverted evidence of guilt. But, unquestionably, in a bench trial, counsel's concession that "technically this is a case of first-degree sexual assault" called for a guilty verdict.

¶ 50. The United States Supreme Court has declared:

[T]he adversarial process protected by the Sixth Amendment requires that the accused have "counsel acting in the role of an advocate." The right to the effective assistance of counsel is thus the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted — even if defense counsel may have made demonstrable errors— the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated.

United States v. Cronic, 466 U.S. 648, 656-57 (citations and footnotes omitted; emphasis added).

¶ 51. Here, where was the advocacy? Where was the "meaningful adversarial testing"? Defense counsel advised Silva to waive his right to a jury trial. He made no opening statement, called no witnesses, and conceded Silva's guilt in closing argument. While the first two factors are not determinative, they bring added understanding of the context in which the closing concession came. Under Cronic and Gordon, the closing argument is dispositive; conceding guilt, it was both deficient and prejudicial, thus requiring a new trial.

D. Conclusion

¶ 52. The injustice in this case — for both Silva and the victim of his alleged assault — now prolonged by the need for a new trial, is significant. Still, Silva's right to a jury trial with the effective assistance of counsel must be preserved and, therefore, while sharing the majority's view of many matters in this case, I must, in part, respectfully dissent.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       During a Machner hearing, trial counsel testifies and the postconviction court determines whether trial counsel's actions were ineffective. See State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979).

       WISCONSIN Stat. § 973.01 provides, in relevant part:
      Bifurcated sentence of imprisonment and extended supervision.
      (8) Explanation op sentence, (a) When a court imposes a bifurcated sentence under this section, it shall explain, orally and in writing, all of the following to the person being sentenced:

        1. The total length of the bifurcated sentence.
      2. The amount of time the person will serve in prison under the term of confinement in prison portion of the sentence.
      3. The amount of time the person will spend on extended supervision, assuming that the person does not commit any act that results in the extension of the term of confinement in prison under s. 302.113(3).
      4. That the amount of time the person must actually serve in prison may be extended as provided under s. 302.113(3) and that because of extensions under s. 302.113(3) the person could serve the entire bifurcated sentence in prison.
      5. That the person will be subject to certain conditions while on release to extended supervision, and that violation of any of those conditions may result in the person being returned to prison, as provided under s. 302.113(9).
      (Emphasis added.)

       Since the filing of this appeal, Gordon has been reversed by State v. Gordon, 2003 WI 69, 262 Wis. 2d 380, 663 N.W2d 765 [hereinafter Gordon II]. The Dissent inexplicably contends that the reversal of Gordon "all the more clearly established why we must reverse here[,]" despite the fact that the reversal supports the Majority's opinion. The Dissent relies on the supreme court's fact-specific conclusions and observations in Gordon II, instead of considering the essence of the reasoning behind its reversal. That reasoning more clearly aligns itself with the Majority's conclusion that upon consideration of all of the circumstances present here, defense counsel's closing argument falls short of the "functional equivalent" of a guilty plea in the instant case. The Dissent contends that the supreme court's reversal is "inextricably connected to two critical circumstances [,]" i.e., that Gordon's trial counsel conceded guilt on one of three counts, yet zealously advocated acquittal on the other two, and the defendant already admitted the conduct that constituted the conceded count, and accordingly, since neither of the two exist here, we should reverse. However, the supreme court also noted that an attorney's admission of the guilt of a client is not tantamount to a guilty plea:
      The court of appeals held that the defense attorney's closing argument concession on the disorderly conduct while armed count was the functional equivalent of a guilty plea, improper if done without Gordon's consent, and conclusively presumed to be prejudicial. We disagree. A guilty plea waives trial, cross-examination of witnesses, the right to testify and call witnesses in one's own defense, and the right to a unanimous jury verdict of guilt beyond a reasonable doubt. The concession in this case had none of these effects ....

        Gordon II, 262 Wis. 2d 380, ¶ 24. It went on to note that in light of Gordon's own testimony admitting the conduct that constituted the conceded count, it was "not deficient performance for Gordon's attorney to concede the overwhelming weight of the evidence . . . ." Id., ¶ 26.
      In the instant case, Silva similarly had a trial, albeit without a jury, cross-examined witnesses, and had the opportunity to call witnesses and the right to testify if he chose to do so. Accordingly, after considering the circumstances of this case, i.e., the cross-examination of M.S., trial counsel's strategy as deemed appropriate by the trial court, the strength of the State's case, and the testimony regarding Silva's failure to deny the accusation, we conclude that Silva's attorney rendered adequate assistance and that this determination is supported by the reversal of Gordon.

       The postconviction court ordered a Machner hearing on other issues and did not grant the motion to hold a Machner hearing based upon Silva's attorney's closing argument. However, Silva's postconviction motion and the postconviction court explored this issue. Thus, we do not remand for an additional Machner hearing.

       The trial court applied an improper standard. Wisoonsin Stat. § 904.03 provides:
      Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

       Wisconsin Stat. § 904.01 provides:
      Definition of "relevant evidence." "Relevant evidence" means evidence having any tendency to make the existencé of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

       Examples of absurd statements made by Mohammed Saeed al-Sahaf can be found at http://64.39.15.171 (last accessed July 24, 2003), and, most likely, a cursory search of the internet.

       Indeed, that very uncertainty all the more supports Silva's position. The supreme court explained:
      Part of the rationale behind presuming prejudice is the difficulty in measuring the harm caused by the error or the ineffective assistance. In [State v.] Behnke, for instance, [in which the supreme court "assumed prejudice" resulting from defense counsel's absence from the verdict return, and the resulting failure to poll the jury], we declined to indulge in calculation or speculation about the prejudice arising from the absence of counsel and the failure to poll the jury.

        State v. Smith, 207 Wis. 2d 259, 280, 558 N.W2d 379 (1997) (citations omitted).

       The majority's reliance on Lockhart v. Fretwell, 506 U.S. 364 (1993) is misplaced. Lockhart has not displaced Strickland v. Washington, 466 U.S. 668 (1984); it moves beyond the Strickland standards only in those circumstances where "[u]n-reliability or unfairness does not result [because] the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right." Lockhart, 506 U.S. at 372. Here, however, we have the substantive right to a jury trial and the procedural right to a fully informed jury-waiver proceeding. See Jones v. Barnes, 463 U.S. 745, 751 (1983) ("It is ... recognized that the accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to ... waive a jury ... ."); see also State v. Gordon, 2002 WI App 53, ¶ 27, 250 Wis. 2d 702, 725, 641 N.W2d 183 (quoting Jones, 463 U.S. at 751.).

       And, we must keep in mind, counsel's argument left the trial court no option — no lesser-included offense was at issue. See State v. Kramar, 149 Wis. 2d 767, 792, 440 N.W2d 317 (1989) (option of finding defendant guilty of lesser-included offense exists "only when there are reasonable grounds in the evidence both for acquittal on the greater charge and conviction on the lesser offense").


source: Caselaw Access Project

author: SCHUDSON, J.

license: Public Domain

text:
    Donald R. Kustelski, Plaintiff-Appellant, v. Robin L. Taylor and Liberty Mutual Insurance Co., Defendants-Respondents.
    Court of Appeals

      No. 02-2786.

      Oral argument July 15, 2003.

    Decided August 5, 2003.

    2003 WI App 194
    (Also reported in 669 N.W.2d 780.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Shawn M. Govern of Petrie & Stocking, S.C., of Milwaukee. There was oral argument by Shawn M. Govern.

    On behalf of the defendants-respondents, the cause was submitted on the joint brief of Thomas A. Cabush of Kasdorf Lewis & Swietlik, S.C., of Milwaukee, on behalf of Robin L. Taylor, and Kirk Van Buskirk, of Law Offices of Stilp & Cotton, of Milwaukee, on behalf of Liberty Mutual Insurance Co. There was oral argument by Thomas A. Cabush.

    Before Wedemeyer, PJ., Schudson and Curley, JJ.
   SCHUDSON, J.

¶ 1. Donald R. Kustelski appeals from the circuit court judgment granting partial summary judgment to Robin L. Taylor and her insurer, Liberty Mutual Insurance Co. (collectively, "Taylor"), and dismissing his claims for negligence and abuse of process. Kustelski argues that: (1) the court erroneously exercised discretion in even entertaining Taylor's motion for partial summary judgment because Taylor failed to serve her motion by the deadline set in the scheduling order; (2) the court erred, as a matter of law, in basing its dismissal of his negligence claim on his no-contest plea in the related criminal case; and (3) the court erred in dismissing both the negligence and abuse-of-process claims because material factual issues remain.

¶ 2. We conclude that, despite Taylor's failure to serve her motion for partial summary judgment by the deadline, the court did not erroneously exercise discretion in considering it. We also conclude that the court correctly granted partial summary judgment dismissing the abuse-of-process claim. Finally, however, we con-elude that because material factual issues remain, the court erred in dismissing Kustelski's negligence claim. Accordingly, we affirm in part, reverse in part, and remand for further proceedings on Kustelski's negligence claim.

I. BACKGROUND

¶ 3. According to the summary judgment submissions, on the afternoon of July 4, 1998, Taylor and Kustelski were driving their cars on Good Hope Road in Brown Deer when they collided. Kustelski's car was a 1970 Chevrolet Nova SS, which Kustelski considered a "nostalgic pro street car." Commonly referred to as a "hotrod," the car had been substantially modified. It had no horn, speedometer, or turn signals, and it was specially equipped with "straight-arm" steering, oversized tires, a 454 cubic engine, and nitrous oxide boosters (which, Kustelski said, were inoperable at the time of the accident).

¶ 4. The collision propelled Taylor's car into a parked car; her car was totaled and she was injured. At the time of the accident, Kustelski was an unlicensed and uninsured driver with an extensive traffic record. Taylor maintained that Kustelski was driving more than one hundred miles per hour and approached her so suddenly from the rear that she could not get out of his way. Kustelski admitted that he was speeding; he said, however, that he was driving between forty-five and fifty-five miles per hour in a forty-mile-per-hour zone. He contended that although he was driving "slightly faster than the flow of traffic," the accident occurred because Taylor suddenly drove into his lane without signaling. A witness at the scene said that Taylor "reeked" of alcohol; Taylor denied being under the influence.

¶ 5. Six days after the accident, Taylor wrote a letter to Milwaukee County District Attorney E. Michael McCann:

On the fourth of July, I was hit by a hotrod going at least 100 miles per hour and I lived to tell about [it]. While that may sound like a catchy promotional line for a news story — the experience has been anything but thrilling. At the time of the accident, I was driving down a city street going the speed limit when, in my rear-view mirror, I spotted the hotrod flying at me at well over 100 miles per hour. I couldn't get out of the way in time and was struck from behind. The impact sent my car into a parked vehicle and eventually a fence. I am fortunate! I survived the crash!
It turns out, the vehicle that hit me was not street legal. It was a pro-stock drag racing car with nitrous oxide boosters — and the man behind the wheel was not a teenager —he was 33-years-old. I urge your office to take this case seriously. This is not a simple case of reckless driving that you can blame on youthful innocence, or for that matter youthful foolishness. This is a case of reckless endangerment!
When he hit the nitrous oxide booster — he might as well have pulled the trigger on a gun — for the impact is the same. His vehicle hit mine with deadly force. I can only thank God that the safety restraints in my vehicle saved my life.
It has been a week since the crash and I am still recovering from my injuries. My hope is that the legal system will treat this case seriously.
Sincerely,
Robin Taylor
Fox Six News Anchor & Reporter

¶ 6. On August 19, 1998, the District Attorney's Office charged Kustelski with second-degree recklessly endangering safety, in violation of Wis. Stat. § 941.30(2) (1997-98). More than two years later, on October 16, 2000, pursuant to the District Attorney's Office's request for a victim impact statement, Taylor wrote a letter to Circuit Court Judge M. Joseph Donald, before whom Taylor's criminal case still was pending. In that letter, Taylor described the accident, her injuries, and her financial costs, and concluded: "I know that you cannot change what has happened. You can't right the wrong — but you can see to it that Mr. Kustelski is punished. I hope, while he is sitting in jail, away from friends and family, that he thinks about what he has done. And I pray he never does it again to anybody else." Taylor made no reference to her employment position.

¶ 7. On June 21, 2001, Kustelski pled no contest to an amended charge of endangering safety by use of a dangerous weapon, in violation of Wis. Stat. § 941.20(l)(a) (1997-98). Judge Donald imposed the maximum sentence of nine months in the House of Correction, stayed the sentence, and placed Kustelski on probation for one year with conditions, including payment of restitution and a $300 fine, and incarceration for ten days with Huber release privileges. Following a restitution hearing three months later, Judge Richard J. Sankovitz ordered Kustelski to pay Taylor restitution of $730 — $230 for replacement of the glasses, watch, and purse damaged in the accident, and $500 for the deductible of her insurance. The court declined, however, to order the additional $7500 Taylor sought for what she maintained were medical expenses not covered by insurance. The court concluded that Taylor had not submitted sufficient documentation of those expenses or their connection to the accident.

¶ 8. On July 3, 2001, Kustelski filed the action underlying this appeal. His complaint alleged that Taylor's negligent driving caused him various damages and, further, that Taylor had committed abuse of process. Specifically, the abuse-of-process claim asserted:

[Taylor] tortiously made allegations and assertions of criminal conduct by Mr. Kustelski... to the Brown Deer Police, Milwaukee [County] District Attorney's Office and the Wisconsin Department of Transportation so as to persuade them to prosecute Mr. Kustelski criminally and/or suspend his license. That such use of the process was an abuse of the process to accomplish a purpose for which it was not designed, namely, collection of money damages for which she was not entitled. The abuse of process, upon information and belief, was used to coerce, harass and antagonize the Plaintiff.

¶ 9. The circuit court issued a scheduling order requiring that all dispositional motions be filed on or before May 31, 2002. On May 30, Taylor filed her motion for partial summary judgment. Not until June 3, however, did she provide mail service to Kustelski, who did not receive Taylor's motion until June 5. Nevertheless, the court considered her motion.

¶ 10. Seeking partial summary judgment, Taylor targeted the abuse-of-process claim. She did not seek summary judgment on Kustelski's negligence claim, apparently recognizing that the submissions established material factual issues. Judge Dominic S. Amato, however, after granting summary judgment on the abuse-of-process claim, adjourned the case for a status conference to allow himself time to review transcripts from the criminal case. He advised the parties: "I note for the record that the defendants have not moved for summary judgment on the negligence .... But as to whether your negligence action is going, the Court sua sponte is going to make a quick determination of that based upon the transcripts before Judge Donald on the guilty plea and on sentencing."

¶ 11. Two weeks later, at the status conference, Judge Amato dismissed the negligence claim. Referring to Kustelski's plea in the criminal case, he stated "that admission even of a no contest can be used against him in a civil case once there is a finding of guilt." Judge Amato further explained: "[E]ven if I assume that Miss Taylor was somewhat negligent.. . that Miss Taylor changed lanes, the reality of the situation is [that] based upon the plea, no reasonable jury under any of the facts could come back and find that Miss Taylor was more causally negligent than Mr. Kustelski." (Emphasis added.)

II. DISCUSSION

¶ 12. We review an order granting summary judgment de novo using the same methodology as the circuit court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Wis. Stat. § 802.08(2). Any doubt as to the existence of a genuine issue of material fact should be resolved against the party seeking summary judgment. Grams v. Boss, 97 Wis. 2d 332, 339, 294 N.W.2d 473 (1980).

A. Scheduling Deadline

¶ 13. Kustelski argues that the court should not have considered Taylor's motion for partial summary judgment because it was served a few days after the deadline set in the scheduling order. We disagree.

¶ 14. The circuit court issued a scheduling order, pursuant to Milwaukee County Circuit Court Rule 364, which provides for the filing and service of all disposi-tive motions prior to the deadline set in the scheduling order. Here, it is undisputed that although the motion for partial summary judgment was filed with the court on time, it was not served on Kustelski until after the deadline. Taylor explains that a service snafu stemmed from the relocation of her insurer's law firm; as a result, the firm closed its offices on May 30, 2002, and did not resume regular business operations until June 3. Deciding to entertain Taylor's motion despite its tardy service, Judge Amato did not specifically refer to the law-firm factor or any other. Instead, he simply responded to Kustelski's objection by stating: "I don't make decisions on defects. [Circuit Court Judge William E.] Haese used to, God bless him. Next argument. Unless it's prejudicial. It's not prejudicial."

¶ 15. A circuit court has discretion to determine whether and to what extent it will enforce the deadlines of its own scheduling orders. See Kotecki & Radtke, S.C. v. Johnson, 192 Wis. 2d 429, 447, 531 N.W2d 606 (Ct. App. 1995). As we noted in Kotecki & Radtke:

The application of local rules to the particularities of individual cases is better left to the wide discretion of the trial court in controlling the disposition of the cases before them. For this court to mandate that the trial court unblinkingly disregard all untimely filed pleadings and affidavits would be counter-productive to the orderly judicial disposition of the cases brought before the trial court.

Id., 192 Wis. 2d at 447. Milwaukee County Circuit Court Rule 367 allows for discretion. It provides: Any motion, brief, affidavit, or other supporting documents served and/or filed in an untimely fashion may be disregarded by the court and a decision may be based on the record as timely filed. (Emphasis added.) Generally, may is construed as permissive or allowing discretion. See Rotfeld v. DNR, 147 Wis. 2d 720, 726, 434 N.W2d 617 (Ct. App. 1988). Accordingly, we review a trial courts decision to consider an untimely pleading under the local rules under the erroneous-exercise-of-discretion standard. Kotecki Radtke, 192 Wis. 2d at 448.

¶ 16. To properly exercise discretion, the trial court must act consistent with the facts of record and established legal principles. Lievrouw v. Roth, 157 Wis. 2d 332, 358-59, 459 N.W2d 850 (Ct. App. 1990). Moreover, where a court fails to articulate the basis for a discretionary decision, this court may independently review the record to determine whether a proper basis exists. See State v. Pharr, 115 Wis. 2d 334, 343, 340 N.W2d 498 (1983). Here, the record allows this court to conclude that the circuit court properly exercised discretion in entertaining the motion. The motion was filed timely; the tardiness of service was only a few days; and Taylor offered a reasonable explanation for the service delay.

B. Negligence

¶ 17. Kustelski argues that the court erred, as a matter of law, in dismissing his negligence claim on the basis of his no contest plea in the criminal case. He contends that material factual issues remain for trial. We agree.

¶ 18. Wisconsin Stat. § 904.10 provides, in relevant part, that "a plea of no contest" and "statements made in court... in connection with" such a plea are "not admissible." The statute is clear and unambiguous. State v. Mason, 132 Wis. 2d 427, 432, 393 N.W.2d 102 (Ct. App. 1986). A no contest plea in a criminal case "cannot be used collaterally as an admission in future civil litigation[.]" Robinson v. City of West Allis, 2000 WI 126, ¶ 46, 239 Wis. 2d 595, 619 N.W.2d 692.

¶ 19. At oral argument before this court, counsel for Taylor confirmed his recognition that material factual issues remain on Kustelski's negligence claim, and candidly conceded the controlling effect of Wis. Stat. § 904.10. Thus, before the circuit court, Taylor never sought dismissal of the negligence claim. Nevertheless, the circuit court, sua sponte, ordered summary judgment and dismissed that claim based on its understanding that "even a no contest can be used against him in a civil case once there is a finding of guilt," and that "based upon the plea, no reasonable jury under any of the facts could come back and find that Miss Taylor was more causally negligent than Mr. Kustelski." Clearly, the court was mistaken. Under § 904.10, the plea from the criminal case would not be admissible in the civil trial and, therefore, a jury in the civil case could come to no conclusion "based upon the plea."

¶ 20. Still, on appeal, Taylor offers a fleeting argument that we could conclude, as a matter of law, that Kustelski was at least 51% negligent and, therefore, the summary judgment should be upheld on that basis. The summary judgment submissions, however, preclude such a conclusion as a matter of law. They include factual allegations of Taylor's conduct and driving, supported by witnesses and an accident reconstructionist, that would require a jury's evaluation. See Dottai v. Altenbach, 19 Wis. 2d 373, 375, 120 N.W2d 41 (1963) ("It is a rare case when summary judgment can be granted in an action grounded on negligence."); see also Bishop v. Johnson, 36 Wis. 2d 64, 68, 152 N.W.2d 887 (1967) ("In the great majority of cases the evidence is such that a jury question on the comparison of the causal negligence is presented."). Material factual issues, including the speeds of the vehicles and Taylor's alleged lane change and possible consumption of alcohol, remain. Thus, we must reverse the summary judgment on the negligence claim.

C. Abuse of Process

¶ 21. Kustelski argues that the court erred in dismissing his claim for abuse of process. He contends that factual issues remain. Specifically, he asserts that Taylor: (1) "sought to shift the focus away from her own potential culpability"; (2) "used the criminal proceedings as a weapon not to seek restitution, but rather retribution"; (3) "used the criminal proceedings as a weapon against [him] to seek compensation for damages which her own insurance company denied as unverifiable and unsubstantiated"; (4) "attempted to use the process to coerce [him] to pay her $32,000 in unsubstantiated damages"; and (5) "attempted to influence the issuance of charges against [him] by asserting her position as a TV personality in order to gain the attention of the District Attorney's office."

¶ 22. Elaborating on these assertions in his reply brief, Kustelski contends that Taylor "had a unique and personal relationship with the Brown Deer Police Department." Kustelski points to affidavits of witnesses who indicated that Taylor appeared to have "an unusual amount of control over the police investigation" and, he says, while he was required to perform field sobriety tests at the scene, Taylor, despite "reek[ing] of alcohol," was neither required to do so nor required to take a blood test at the hospital after the accident. Kustelski also asserts that the criminal charges against him were delayed and then, without notice to him, finally issued. He contends that "[m]aterial issues of fact are present regarding the ulterior motive and unfair advantage which Ms. Taylor sought to gain over [him] by actively participating in [his] prosecution."

¶ 23. Taylor .responds that Kustelski's submissions satisfied neither element of abuse of process. She maintains that: (1) to the extent she "used" the criminal proceedings, she did so for a proper purpose; and (2) even if her purpose were deemed improper, she did not misuse the legal process. Taylor is correct.

¶ 24. In Wisconsin, abuse of process is committed by "[o]ne who uses a legal process, whether criminal or civil, against another to accomplish a purpose for which it is not designed." Thompson v. Beecham, 72 Wis. 2d 356, 362, 241 N.W.2d 163 (1976) (citation omitted). The elements of abuse of process are: (1) "a purpose other than that which the process was designed to accomplish"; and (2) "a subsequent misuse of the process, even though the process was properly instituted." Id. Explaining the elements, the supreme court has offered further guidance:

"The essential elements of abuse of process, as the tort has developed, have been stated to be: first, an ulterior purpose, and second, a willful act in the use of the process not proper in the regular conduct of the proceeding. Some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process, is required; and there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions. The improper purpose usually takes the form of coercion to obtain a collater[]al advantage, not properly involved in the proceeding itself,... The ulterior motive or purpose may be inferred from what is said or done about the process, but the improper act may not be inferred from the motive . . .

Id. at 362-63 (citations omitted) (emphases added). We conclude that the summary judgment submissions failed to establish either element.

¶ 25. The submissions did not establish that Taylor pursued any "purpose other than that which [the criminal justice] process was designed to accomplish." They showed no "misuse of the process." While allowing for suspicion or speculation, the submissions provided no evidence that Taylor employed any "willful act," or any "definite act or threat," that was "not proper in the regular conduct of the proceeding." See id.

¶ 26. Taylor's letters to District Attorney McCann and Judge Donald expressed her strong feelings and sought, in Kustelski's words, "retribution" and "restitution." But such expressions are not improper. Retribution is defined, in part, as "[plunishment imposed as repayment or revenge for the offense committed; . . . [something justly deserved," Black's Law Dictionary 1318 (7th ed. 1999) — purposes wholly consistent with the legitimate aims of the justice system. And, for sentencing, the victim's input on restitution is required. See Wis. Stat. § 973.20(13).

¶ 27. Kustelski's appellate effort to resurrect his abuse-of-process claim is based, in part, on his hyperbolic and inaccurate accounts of Taylor's actions. He maintains that Taylor attempted to "influence [] the issuance of charges ... by asserting her position as a TV personality" and "coercef him] to pay her $32,000 in unsubstantiated damages." Nothing in the record, however, establishes that Taylor did anything improper.

¶ 28. In her deposition, Taylor acknowledged her familiarity, as a result of her work, with the Brown Deer Police Department and some of its personnel. She acknowledged her effort to impress upon the District Attorney's Office her strong feelings about the case. She acknowledged her later efforts to stay in touch with the probation department to monitor restitution. Absolutely nothing in the record, however, counters what she said in her deposition testimony: "I let the legal process do its thing."

¶ 29. Taylor's public prominence did not disqualify her from noting her employment position in her letter to District Attorney McCann. Whatever her celebrity status, she could properly express her feelings about what, as a victim, she considered just. As counsel for Taylor emphasized at oral argument, any other conclusion would violate public policy by discouraging victims and witnesses from communicating with law enforcement officials, for fear of being targeted in abuse-of-process actions.

¶ 30. At most, Kustelski has offered various allegations that could lead to speculation that police or prosecutors may have modified their approaches in consideration of Taylor's status. He has not, however, submitted anything to establish anything improper in Taylor's conduct that could counter her sworn statement that she "let the legal process do its thing."

¶ 31. Accordingly, the circuit court correctly granted summary judgment on the abuse-of-process claim. Therefore, we affirm the summary judgment on the abuse of process claim, reverse the summary judgment on the negligence claim and remand for further proceedings.

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

       Kustelski's complaint also included a claim for defamation. In the course of summary judgment proceedings, however, Kustelski withdrew that claim. Because the defamation claim does not affect any of the issues in this appeal, our decision will not make any further reference to it.

       Wisconsin Stat. § 941.30(2) provides: "Second-degRee Recklessly endangeRing safety. Whoever recklessly endangers another's safety is guilty of a Class E felony." All subsequent references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Wisconsin Stat. § 941.20 provides, in relevant part: "Endangering safety by use of dangerous weapon. (1) Whoever does any of the following is guilty of a Class A misdemeanor: (a) Endangers another's safety by the negligent operation or handling of a dangerous weapon[.]"
      Accepting Kustelski's plea, Judge Donald confirmed the parties' understanding that the "dangerous weapon" in this case was Kustelski's car. Justifying the amended charge, the prosecutor explained, in part:
      [T]he [amended] charge . .. accurately reflects the incident involved here. [The criminal complaint, preliminary hearing, and Taylor's letter to the court] all show . . . extraordinarily dangerous operation of a motor vehicle, which it could he argued shouldn't be used on the streets because it appears to be primarily a vehicle used for racing.... The cause of this was how that vehicle was operated, and Mr. Kustelski... had the choice as to how to operate his vehicle. He was operating it well in excess of any speed limit in the State of Wisconsin, much less the speed limit in the area of 46th and Good Hope.

       Among other inaccuracies, Kustelski contends: "Ms. Taylor actively participated in the criminal prosecution of Mr. Kustelski. Most notably are a series of letters which she sent to the Milwaukee District Attorney[']s office." Kustelski then refers to the July 12,1998 letter to District Attorney McCann and the October 16, 2000 letter to Judge Donald. He offers absolutely nothing to establish any "active participation" in the prosecution, or any letter to the District Attorney's Office, other than the initial one.
      Additionally, while Kustelski repeatedly insists that Taylor sought at least $32,000 in restitution through the criminal court proceeding, the record refutes his claim. Taylor, at the District Attorney's request, presented an itemized list of her costs. She specifically distinguished the losses covered by insurance from the balance. During the restitution hearing, at which the prosecutor presented Taylor's information but at which Taylor did not even appear, neither Taylor nor the prosecutor ever sought more than $8230. Taylor did nothing to "coerce" payment of $32,000.

       While Kustelski contends that Taylor had a "unique relationship with the Brown Deer Police Department" and implies that, as a result, she was able to gain special treatment in this case, the deposition on which he relies provides little if any support. Taylor acknowledged that she knew departmental personnel but she added: "Let me clarify. I did not know anybody personally. As a TV news reporter, I had done interviews with the chief and also I believe ... probably a lieutenant _"
      The balance of Kustelski's contention is, for the most part, grounded in the affidavits of two witnesses at the accident scene. They maintain, among other things, that the police "appeared to be consulting with Ms. Taylor throughout the accident investigation" in a "one-sided" manner, that the police treated Taylor "more favorably" than they treated Kustelski, that Taylor "appeared" to be "controlling the accident investigation," that the police required only Kustelski to perform field sobriety tests, and that the police "did not want to take statements from anyone who gave them information that was contrary to Ms. Taylor's version of the accident."
      Even assuming the truth of these assertions, and even assuming that the police performed their duties based, in part, on their familiarity with Taylor, no abuse of process is established. Victims and witnesses are free to offer information to police who, in turn, have discretion to determine the direction of investigation. At most, therefore, the affidavits allege improper conduct by police, not Taylor.


author: PETERSON, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Rodney K. Stenseth, Defendant-Appellants.

    Court of Appeals

      No. 02-3330-CR.

      Submitted on briefs June 24, 2003.-

    Decided August 5, 2003.

    2003 WI App 198
    (Also reported in 669 N.W.2d 776.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Robert A. Ferge, Chippewa Falls.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Stephen W. Kleinmaier, assistant attorney general.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review denied 10-21-03.

   PETERSON, J.

¶ 1. Rodney Stenseth appeals an amended judgment of conviction and an order denying his postconviction motion for a new sentencing hearing. Stenseth argues: (1) the State breached the plea agreement by implying the court should follow the sentence recommended by the presentence investigation report, rather than the sentence recommended by the plea agreement, and (2) he is entitled to a new sentencing hearing because his sentence was modified in his absence. We disagree with both of Stenseth's arguments and affirm the judgment and order.

BACKGROUND

¶ 2. The State charged Stenseth on January 16, 2001, with four criminal counts of first-degree recklessly endangering safety and a misdemeanor count of disorderly conduct, with a repeat offender allegation included on each count. The charges arose out of activities that occurred at Stenseth's home late at night on January 5 into the -early morning of January 6. Stenseth's wife called the police to their home after Stenseth yelled and screamed at her during an argument. When deputy sheriff Burt Zielke arrived at the home, Stenseth ran after Zielke with knives and attempted to stab Zielke. People at the scene, whom Stenseth also attempted to stab, subdued Stenseth.

¶ 3. Stenseth entered into a plea agreement. He pled guilty to one count of recklessly endangering safety, a Class D felony, with a maximum period of confinement of five years followed by a maximum of five years' extended supervision. The State moved to dismiss the remaining counts plus the repeat offender allegations. The State agreed to recommend two years' incarceration followed by four years' extended supervision, consecutive to any sentence Stenseth was currently serving.

¶ 4. The court accepted Stenseth's plea and dismissed the remaining counts and the repeater allegation in accordance with the plea agreement. A presen-tence investigation report was ordered. The report recommended eight years in prison and two years' extended supervision.

¶ 5. At the sentencing hearing, Stenseth called two witnesses: Stenseth's wife and a pastor. Both testified that they would support Stenseth when he was out of prison. His wife also testified that Stenseth had been responding to treatment. The State did not call any witnesses. Instead, the State referred to the pre-sentence report, commenting that it agreed with some statements in the report. Stenseth objected and argued that the State's comments were an endorsement of the report's sentence recommendation, contrary to the plea agreement. The court asked the State if it was sticking with the plea agreement's sentence recommendation. The State said it was. Ultimately, the court imposed a sentence of seven years' confinement followed by three years' extended supervision.

¶ 6. Stenseth filed motions for postconviction relief requesting a new sentencing hearing. He argued, among other things, that the sentence was illegal because the period of confinement exceeded the maximum of five years.

¶ 7. The court held a telephone conference to discuss Stenseth's motions. Stenseth's attorney and the district attorney participated in the call. The court agreed that the original sentence was illegal, and ordered the sentence amended to five years' confinement followed by five years' extended supervision.

DISCUSSION

Breach of the plea agreement

¶ 8. Terms of a plea agreement and the historical facts surrounding the conduct that allegedly constitutes a breach are findings of fact that we will not disturb unless they are clearly erroneous. State v. Williams, 2002 WI 1, ¶ 5, 249 Wis. 2d 492, 637 N.W2d 733 ('Williams IT). Whether the conduct actually constitutes a breach, however, is a question of law that we review independently. Id.

¶ 9. Stenseth argues that the breach is a close call and that he should therefore be given the benefit of the doubt. Consequently, he maintains that we should interpret the State's comments during the sentencing hearing as an adoption of the presentence investigation report's sentence recommendation. Stenseth bases his argument on State v. Williams, 2001 WI App 7, 241 Wis. 2d 1, 624 N.W2d 164 (Williams I).

¶ 10. However, the supreme court has expressly rejected the close case rule of Williams I. See Williams II, 249 Wis. 2d 492, ¶ 20. Instead, the supreme court has determined that we must examine the entire sentencing proceeding to evaluate whether a prosecutor's statements constitute a breach of the plea agreement. Id., ¶ 46. A defendant is entitled to relief when there is a material and substantial breach. Id., ¶ 38. A breach is material and substantial when there is a "violation of the terms of the agreement that defeats the benefit for which the accused bargained." Id.

¶ 11. When discussing a plea recommendation, the State may not give a less than neutral recitation of the agreement's terms. Id., ¶ 42. However, "A prosecutor may convey information to the sentencing court that is both favorable and unfavorable to an accused, so long as the State abides by the plea agreement." Id., ¶ 44. Unfavorable information may be used to support the agreed-upon recommendation. Id., ¶ 55.

¶ 12. Here, the State's reference to the plea agreement was not less than neutral. It simply agreed with the report that Stenseth needed to be incarcerated, without commenting on the sentence recommendation in the report. Testimony given by Stenseth's witnesses could have supported a request for probation only. The State referred to information in the presentence investigation report only to support the recommendation that Stenseth be sentenced to prison rather them straight probation. In fact, when Stenseth objected to the State's use of the presentence report in its argument, the court noted:

[T]he District attorney could well have inferred from the tenor and tone of your [Stenseth's attorney's] presentation of the witnesses that you were going to recommend a straight probationary term. And it is consistent with her plea agreement and with her commitment to you and to the defendant to say that's not a good idea, Judge.
There really has to be, in the state's view, actual confinement. There actually has to be a sentence. There actually has to be extended supervision. Straight probation should not be the order of the Court. And that interpretation of counsel's remarks is consistent with her plea agreement to you.

Although Stenseth's attorney stated he was not going to argue for probation, the court was free to impose any sentence it thought appropriate, including probation. There was nothing improper in the State arguing facts in opposition to probation.

¶ 13. At no time did the State argue for anything other than the agreed-upon sentence. Nor did it mention that the presentence report recommended a longer sentence. The State properly used the presentence report in support of the plea agreement's sentence recommendation. Consequently, the State did not violate the terms of the plea agreement, and thus there was no breach.

Stenseth's absence from the postconviction hearing

¶ 14. The court originally sentenced Stenseth to seven years' confinement and three years' extended supervision after being convicted of recklessly endangering safety, a Class D felony. However, the maximum period of confinement for a Class D felony conviction is five years, followed by a maximum of five years' extended supervision. Wis. Stat. §§ 939.50, 973.01(2)(b) (1999-2000).

¶ 15. After Stenseth filed his postconviction motions, the court and the attorneys participated in a telephone conference. During the conference, the court agreed that the original sentence was illegal and amended the sentence to five years' confinement followed by five years' extended supervision. Stenseth argues that the modification amounted to a resentenc-ing and that he had a right to be present. Because he was not present, Stenseth claims he is entitled to a new sentencing hearing.

¶ 16. Wisconsin Stat. § 971.04(l)(g) provides that a defendant shall be present "[a]t the pronouncement of judgment and the imposition of sentence." The State concedes that the modification amounted to a resen-tencing and that Stenseth had the right to be present. However, the State argues this was harmless error, and we agree.

¶ 17. Violation of the right to be present under Wis. Stat. 971.04(1) is subject to a harmless error analysis. State v. Peterson, 220 Wis. 2d 474, 489, 584 N.W.2d 144 (Ct. App. 1998). An error is harmless if it does not affect the defendants substantial rights. State v. Harris, 229 Wis. 2d 832, 840, 601 N.W.2d 682 (Ct. App. 1999).

¶ 18. In Peterson, the court found the defendants absence during supplemental jury instructions was harmless because the defendant had failed to establish any prejudice resulting from the violation of his right to be present and also had failed to advance on appeal any specific contribution he would have made had he been present. Peterson, 220 Wis. 2d at 489.

¶ 19. Here, Stenseth already had a full sentencing hearing. He had the opportunity to present witnesses and did, in fact, present two witnesses. He exercised his right of allocution. His attorney made an argument on Stenseths behalf. At the end of the presentations, the court made detailed findings and extensive observations, explaining the reasons for its sentence. Stenseth does not indicate any additional witnesses he would have called at a resentencing hearing, any new information he would have provided the court or any further arguments he would have presented.

¶ 20. Further, we note that when the court recognized the original sentence had been illegal, the court stated that did not change the fact that it had intended that [Stenseth] should be supervised for the full ten years. Further, the court added, I wanted the public protected in one way or another for a total of ten years. Stenseth does not indicate anything he would have done to effect a different outcome. In short, Stenseth does not suggest any contribution he would have made at the resentencing or any way in which he was prejudiced. The error was harmless.

By the Court. — Judgment and order affirmed.

       Stenseth also argues other errors he contends support a finding that the State breached the plea agreement. These include: the sentence was illegal, the court failed to give Stenseth an oral explanation of the sentence and to give Stenseth sentence credit, and the court included the repeat offender provision in the sentence. However, these issues have no bearing on whether the State breached the plea agreement and we do not address them.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.