author: BROWN, J.

text:
    In the Matter of the Refusal of Richard L. Verkler: State of Wisconsin, Plaintiff-Respondent, v. Richard L. Verkler, Defendant-Appellant.

    Court of Appeals

      No. 02-1545.

      Submitted on briefs November 18, 2002.
    Decided January 29, 2003.

    2003 WI App 37
    (Also reported in 659 N.W.2d 137.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Christopher A. Mutschler of Anderegg & Mutschler, LLP of Fond du Lac.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of Thomas L. Storm, district attorney.
    On behalf of the plaintiff-respondent, there was a supplemental brief filed by Peggy A. Lautenschlager, attorney general, and Susan M. Crawford, assistant attorney general.
    Before Brown, Anderson and Snyder, JJ.

       Petition to review denied 6-12-03.

   BROWN, J.

¶ 1. In State v. Reitter, 227 Wis. 2d 213, 217-18, 595 N.W.2d 646 (1999), our supreme court held that law officers are under no affirmative duty to advise custodial defendants that the right to counsel does not apply to the implied consent setting. However, the court also appears to have held that, as a matter of due process, if an officer either explicitly assures or implicitly suggests that a custodial defendant has a right to counsel, then the officer may not thereafter mark down a refusal if the defendant acts upon that assurance or suggestion. See id. at 240-42. The defendant in this case, Richard L. Verkler claims that the officer, by his actions, at least implicitly suggested that Verkler had the right to consult with an attorney before deciding whether to submit to a breath test. Verkler further contends that the officer then marked him down as having refused because he insisted on consulting with his attorney first. We do not agree that the officer implicitly suggested a right to counsel before taking the test. In fact, the facts show that just the opposite occurred. We affirm.

¶ 2. On January 20, 2002, Verkler was stopped for speeding. During the stop, the officer noted that Verkler smelled of intoxicants, had bloodshot eyes and also slurred his speech. The officer then requested that Verkler perform field sobriety tests but Verkler declined, citing a medical condition similar to multiple sclerosis. Verkler's two passengers confirmed this condition: his wife and his law partner. Having no reason to doubt the existence of the medical condition, the officer dropped his request. The officer then requested that Verkler submit to a preliminary breath test. Verk-ler declined to submit to this test, saying he did not believe in it. He was arrested for OWI and placed in the back seat of the squad car. He requested that he be able to consult with his law partner and the officer allowed that. Verkler and his law partner then sat in the back of the squad car and conversed privately. Eventually, the officer called a halt to the conversation, saying that he had to transport Verkler to the police station. Verkler's wife and his law partner followed the squad to the police department.

¶ 3. At the police department garage, Verkler asked the officer if his law partner was going to join them and the officer replied that "she can't." Verkler told the officer that he wanted to consult with her, but was told, "[w]ell, she can't come in here." Once in the intoxilizer room, Verkler again asked to speak to his law partner, but his request was denied. The officer pointed to a newspaper clipping that hung on the wall. Verkler testified that the clipping seemed to say that a person is not entitled to have the advice of counsel as to the decision of whether to take the breath test. Verkler was then read the Informing the Accused form and was asked to submit to the breath test. Without hesitation, he replied, "No." The officer again asked Verkler if he would submit, this time informing Verkler that there was a penalty for refusing to submit, and again Verkler replied, "No." The trial court found that Verkler had unreasonably refused to take the test. Upon a motion for reconsideration, specifically requesting that the trial court review its findings in light of Reitter, the court made, in pertinent part, the following written answer: "The officer did not have to allow the defendant's law partner to converse with him about the situation. It was a courtesy extended to the defendant and not a right as a matter of law." Verkler then appealed both the original order that the refusal was unreasonable and the order denying reconsideration.

¶ 4. This court is very familiar with Reitter since it was this district which certified the case to the Wisconsin supreme court. See State v. Reitter, 1998 WL 731234 (No. 98-0915) (Oct. 21, 1998). As pointed out by Verkler in his brief, this court observed that Miranda is now a household word in the United States. We further observed that the Informing the Accused form is so similar in procedural design to a Miranda warning that a reasonable person might be confused about whether he or she is entitled to the assistance of counsel. We noted that a minority of states requires officers to explain to custodial defendants that there is no right to consult with an attorney on the question of whether to submit to a blood alcohol test and asked the supreme court whether a similar duty should be imposed in this state. The supreme court accepted our certification and wrote a thoroughly reasoned opinion, holding that there was no such duty on the part of law officers according to statute and that due process did not require that such a duty be imposed. Reitter, 227 Wis. 2d at 242-43. That part of the Reitter decision is not at issue in this case.

¶ 5. But the supreme court went further than the question raised in our certification. Reitter had not only asserted a constitutional right (which the court found he did not have), he also contended that the deputy in his case "actively misled" him into believing that the right to counsel existed. Id. at 240. Reitter relied upon Raley v. Ohio, 360 U.S. 423 (1959), for his proposition. Reitter, 227 Wis. 2d at 241. Our supreme court then explained the Raley case as follows:

In Raley, the State of Ohio had assured the defendants that they could invoke the privilege against self-incrimination when they testified before the Ohio Un-American Activities Commission. State officials, however, neglected to inform the defendants about an Ohio immunity statute that expressly deprived them of that privilege. After the defendants relied on the assurances about the privilege at the hearing and refused to answer questions, Ohio prosecuted them for criminal contempt. In pursuing the convictions, the state relied upon the immunity statute, suggesting the defendants were presumed to know about the statute. The Supreme Court held that due process rights had been violated because the express assurances were "actively misleading," causing the defendants to believe they had a right where none existed.

Reitter, 227 Wis. 2d at 241 (citations omitted).

¶ 6. Reitter wanted our supreme court to do two things. First, he wanted the court to acknowledge that the Raley rationale applies to cases where an officer tells a custodial defendant that he or she has a right to consult with an attorney before deciding whether to take a breath test, the custodial defendant relies on that right and wishes to consult with an attorney before deciding whether to submit to the test, and the officer marks down a refusal as a result of that reliance. Reitter, 227 Wis. 2d at 240-41. Second, Reitter wanted the court to agree with him that he fit the factual predicate. Id. at 241-42.

¶ 7. In our reading of Reitter, the court went halfway. While not specifically adopting the Raley rationale as applied to refusal situations, the supreme court's discussion of the issue convinces us that the court did adopt Raley in the implied consent context. We are also convinced that the court rejected Reitter's claim that he could avail himself of Raley. Our understanding is based on the following passage, which we quote in part:

In this case, Reitter was not led to believe he had a right where none existed. Deputy Sipher neither expressly assured nor implicitly suggested that Reitter had a right to counsel. Unlike Raley, the State did not encourage Reitter to exercise a particular right, and the State did not neglect to inform Reitter about the statute....
This is not a case where the State chose to convict "a citizen for exercising a privilege which the State clearly told him was available to him."

Reitter, 227 Wis. 2d at 241-42 (citation omitted).

¶ 8. Our understanding from this passage in Re-itter, therefore, is that there now exists a narrow exception to the rule announced by the supreme court in State v. Neitzel, 95 Wis. 2d 191, 204, 289 N.W.2d 828 (1980). The Neitzel rule is that wanting to first consult with counsel before deciding whether to submit to a breath test is not a valid reason to refuse and an officer is on solid grounds in marking a refusal if the custodial defendant relies on this explanation for not immediately agreeing to take the breath test. See id. at 205. The narrow exception is the Reitter rule: If the officer explicitly assures or implicitly suggests that a custodial defendant has a right to consult counsel, that officer may not thereafter pull the rug out from under the defendant if he or she thereafter reasonably relies on this assurance or suggestion. See Reitter, 227 Wis. 2d at 240-42.

¶ 9. We read Verkler to contend that his situation is the kind foreshadowed by the court in Reitter and that he should be successful where Reitter was not. But we are convinced that, upon the facts of his case, he has no better luck using the Raley rationale than Reitter had. The officer in this case did allow Verkler to privately consult with his law partner at the scene; there is no question about that. But we fail to see how this translates into a suggestion by the officer that Verkler would have the right to consult with a lawyer prior to deciding whether to submit to a blood alcohol test. In Verkler's own words, the consultation at the scene was not even about the te.st. Rather, it was about how to resolve his obligations under the law given his medical condition.

¶ 10. At no time out in the field did the officer expressly assure Verkler that he had . a right to consult his law partner about whether he should take the upcoming breath test. At no time at the scene did the officer give any indication that Verkler had a right to consult with his law partner throughout the arrest and evidence gathering process. In fact, the undisputed testimony is that while the officer did allow a private chat to take place in the back of the squad car, he abruptly ended the chat moments later and announced that he was taking Verkler to the station. A reasonable person would come to the same conclusion that the trial court did. The officer allowed a short private conversation to take place between Verkler and his law partner as a matter of courtesy and exercised control by ending it at his command. The officer's action in ending the conversation is at odds with Verkler's view that the officer was honoring an attorney-client relationship.

¶ 11. What happened afterwards is also inconsistent with any suggestion on the part of the officer that there was some right to consult throughout the process. The officer transported Verkler to the station. There is no testimony that he invited the law partner to come to the station or implied that she would be able to talk with Verkler there. There is no testimony promising any future consultation to make up for the aborted get-together in the squad car.

¶ 12. At the station, while still in the garage area, Verkler asked to meet with his law partner and this request was refused. A reasonable person in Verkler's position would think, based on the officer's action at the station, that what happened at the scene was an anomaly, something that started and ended at the scene. Verkler persisted and again asked to see his law partner once ensconced in the intoxilizer room. Again, he was denied. A reasonable person in Verkler's position would come to the conclusion that he or she was being told there was no right to consult with a lawyer at this point in time.

¶ 13. But there is more. There was a newspaper clipping on the wall of the intoxilizer room that the officer pointed out to Verkler. Verkler read the clipping. He understood the clipping to say that there was no right to consult with an attorney about whether to take the test. That he disregarded its authenticity because a lawyer did not write it is beside the point. He knew, if for some reason he did not know before, that the officer was telling him there was no consultation right. Far from being actively misled by the officer, the officer was, in no uncertain terms, informing Verkler that he was not going to have a right to consult about taking the test. He may have been allowed to talk to his law partner at the scene, but this does not translate into a suggestion that he could talk to his law partner at the police station about taking the breath test.

¶ 14. Verkler argues that the action of the officer in pointing to the newspaper article on the wall does not qualify as an explanation by the officer that there is no right to counsel. He seems to suggest that the explanation had to come from the officer's own words. We reject his argument. The action by the officer in pointing to the newspaper article on the wall in response to Verkler's request is just as powerful of a statement as one coming from his own words. The old axiom, "actions speak louder than words," plays well here. A reasonable person in Verkler's position would have no doubt about the message the officer was conveying.

¶ 15. Verkler cites Goss v., Illinois, 650 N.E.2d 1078 (1995), to support his position and asserts that the facts there present a fact pattern "eerily similar" to his situation. Goss was arrested for OWI and was transported to the police station for testing. Id. at 1078. The Informing the Accused form was read to him and he was then asked to take the test. Id. at 1078-79. Goss responded by asking for time to consult with his attorney. Id. at 1079. After initially refusing his request, the officer did an about face and let Goss call the attorney. Id. But shortly thereafter, the officer interrupted the conversation and told Goss "that his minute was up." Id. Thereafter, the officer renewed his question regarding the breath test and Goss refused to submit to the test because he could not obtain further advice from counsel. The Illinois Court of Appeals held in Goss's favor saying, "[o]nce a person is accorded rights not required by law, the revocation of those rights will vitiate the effect of ally purported refusal to submit to a breathalyzer test." Id. Verkler argues that, like Goss, he was permitted to speak to his attorney after arrest. He argues that, while the consultation was interrupted, the conduct nonetheless firmly planted in Verkler's mind that attorney consultation was not only allowed, it was encouraged.

¶ 16. We disagree with Verkler. In our view, the facts in Goss are not only inapposite to the facts in the case at bar, but Goss actually supports our position. Goss was at the police station and the form had just been read to him. The big question, whether he would submit to the test, was being asked of Goss in real time. Id. At this point in time, Goss asked to speak with an attorney, a request that was allowed. Id. The clear import of Goss is that if the officer expressly assures a right to consult about whether to take a breath test, then the officer must honor that allowance. Here, however, Verkler was never told that he had a right to consult about whether to submit or refuse to submit to a breath test. The consultation which did occur was out in the field, far away from the real-time request to take the breath test. The real-time occurrences that Verkler had with the officer about whether he could have counsel during the intoxilizer process were met with refusals by the officer to allow attorney-client consultation. Goss is not helpful to Verkler.

¶ 17. Finally, while Verkler steadfastly maintains that he is not raising a "confusion defense," his brief launches into a long, winding discussion which ends in what can only be termed as a variant of the confusion defense. He reads into Reitter an adoption of this variant form. He reasons that if the officer implicitly suggests a right to counsel, then — even though there is no subjective confusion defense allowed in Wisconsin — if the custodial defendant's confusion is the result of some act on the part of the police, and the defendant can show that he was thereby confused about whether he had such a right, then the court must conclude that the refusal was reasonable. He lifts eight instances from the text of the Reitter opinion where the word "confusion" appears, and based on the multiple use of this word, comes to the conclusion that the court was coming very close to adopting the variant of the confusion defense that we have described above. He suggests that his case was "foreshadowed" by the Reitter court.

¶ 18. We determine that it is unnecessary for us to discuss each and every one of the eight instances where the supreme court mentioned the word "confusion." We will note the eight instances in the footnote and leave them be. We think it is sufficient for us to say only that the Reitter court never adopted this variant of the confusion defense. In fact, the court reiterated that there is no confusion defense in Wisconsin. Reitter, 227 Wis. 2d at 229. To the extent that the court discussed the confusion test in particular and the word "confusion" in general, it was in relation to matters not material to the question of whether the officer expressly assured or implicitly suggested that Reitter had a right to counsel. In fact, it related to a hypothetical situation where an officer gave Miranda warnings to the operator. We are convinced that the confusion language related only to the first issue the Reitter court undertook — whether officers must advise custodial defendants that there is no right to consult with counsel before deciding whether to submit to a test — an issue that is not before this court. Id. at 227-31.

¶ 19. As to the issue that is before this court, we are satisfied that the Reitter court looked not to whether the custodial defendant was "confused" about the officer's actions, but whether the officer either expressly assured or implicitly suggested a right to counsel. If the officer did one or the other and the evidence is that the custodial defendant relied on the offering, and the officer nonetheless marked a refusal despite the defendant's reliance, then the refusal was reasonably made. That law can be easily understood and placed into operation without reference to any confusion defense. We reject Verkler's assertions to the contrary. We affirm the order finding the refusal to be unreasonable and the order denying the motion to reconsider.

By the Court. — Orders affirmed.

       We refer to Verifier's refusal as "unreasonable" because this is the term the trial court used. We acknowledge that while at one time the test for the propriety of a refusal was "reasonableness," the legislature eliminated the test many years ago. The implied consent law no longer uses reasonableness as the test for a proper refusal. Now the test is whether the defendant has the physical inability to submit to the test as a result of physical disability or disease. See Village of Elkhart Lake v. Borzyskowski, 123 Wis. 2d 185, 191, 366 N.W.2d 506 (Ct. App. 1985). We note that we will continue to refer to Verifier's refusal in terms of its "reasonableness" throughout this opinion in order to avoid confusion.

        Miranda v. Arizona, 384 U.S. 436 (1966).

       While Verkler tries hard to devalue the significance of the posted news article; we note that the supreme court in Reitter
        suggested this very thing as a means by which officers, while under no obligation to do so, could as a matter of courtesy notify custodial defendants that the right to counsel does not attach to the implied consent setting. State v. Reitter, 227 Wis. 2d 213, 232 n.14, 595 N.W.2d 646 (1999). The court wrote:
      We recognize officers might hesitate to even state this simple advisement, given the danger that a defendant may launch an "oversupply of information" attack on an officer's statutory compliance. There are, however, other alternatives for achieving the same result, such as posting a sign on the wall above the chemical testing equipment....

        Id. (emphasis added).
      We think that the Fond du Lac sheriffs department was following the advice of the court by placing the news article in a conspicuous place in the intoxilizer room. While the Reitter court clearly told law enforcement officials that they were under no duty to advise custodial defendants that there was no right to counsel in the implied consent setting, it commented that it was the court's preference that it be done. A sign on the wall is one such method. A copy of a news article is another such method. To say that the department's act of putting the article on the wall and the officer's act in pointing to the article have no significance to the question of whether that officer had misled Verkler into believing that he had a right to consult with his attorney is contrary to reason.

       'We observe that where a defendant expresses no confusion about his or her understanding of the statute, a defendant constructively refuses . ..." Reitter, 227 Wis. 2d at 218.
      "The record does not suggest Reitter was confused by Deputy Sipher's reading of the 'Informing the Accused Form.'" Id. at 221.
      "Even if we were to apply the reasoning of Heles, the facts of that case, like those of O'Connell, pivot on one key distinction. In Heles and O'Connell, both courts addressed the possibility that the reading of Miranda warnings had 'confused' the defendants about general rights to counsel and the absence of that right under the implied consent laws. Fears that confused defendants be misled 'into making uninformed and unknowing decisions to take the test' prompted creation of the 'O'Connell warning.'" Reitter, 227 Wis. 2d at 227. (Citations omitted).
      'Wisconsin has not adopted the 'confusion doctrine.' In part, its application is unnecessary because Miranda warnings are not required in the implied consent setting." Reitter, 227 Wis. 2d at 229 (citations omitted).
      "In this case, Reitter does not rely on a confusion theory. Reitter advances neither of the two premises other states require for the defense: reading of Miranda rights and a showing of actual confusion. Even if we were to extend the 'confusion doctrine' to Wisconsin, this is not the case in which to do so." Reitter, 227 Wis. 2d at 229-30.
      "Had Reitter claimed his insistence for a lawyer fell under the shadow of a Miranda warning, he might have made an argument for obligating the State to clarify any resulting right to counsel confusion." Reitter, 227 Wis. 2d at 230.
      "We therefore hold that where a defendant exhibits no confusion, the officer is under no affirmative duty to advise the defendant that the right to counsel does not attach to the implied consent statute." Id. at 231.
      "Here, it is not clear whether Reitter was given Miranda warnings. We do not decide whether this case would have come out differently had Reitter been given those warnings." Reitter, 227 Wis. 2d at 230 n.13.


source: Caselaw Access Project

author: LUNDSTEN, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Guy W. Colstad, Defendant-Appellant.

    Court of Appeals

      No. 01-2988-CR.

      Oral argument June 13, 2002.

    Decided January 30, 2003.

    2003 WI App 25
    (Also reported in 659 N.W.2d 394.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of and oral argument by T. Christopher Kelly oí Kelly & Habermehl, S.C., Madison.
    On behalf of the plaintiff-respondent, the causé was submitted on the briefs oí William C. Wolford, assistant attorney general, and James E. Doyle, attorney general. There was oral argument by William C. Wolford.

    Before Vergeront, PJ., Roggensack and Lundsten, JJ.

       Petition to review denied 4-22-03.

   LUNDSTEN, J.

¶ 1. Guy W. Colstad appeals a judgment of the circuit court convicting him of homicide by use of a vehicle while having a prohibited alcohol concentration, contrary to Wis. Stat. § 940.09(1)(b) (1997-98). Colstad argues that the results of his blood test should have been suppressed because (1) neither probable cause of a civil traffic violation, nor reasonable suspicion of a crime, supported the initial investigative detention of Colstad; (2) the initial detention was not temporary, but was instead an illegal de facto arrest; (3) the facts known to the investigating officer did not provide reasonable suspicion of intoxication and, therefore, Colstad should not have been subjected to field sobriety tests; and (4) the results of the preliminary breath test should not have been considered by the trial court when assessing whether probable cause supported both Colstad's arrest and the subsequent blood draw. We disagree with each of Colstad's arguments and affirm.

Background

¶ 2. On April 21, 2000, the pickup truck Colstad was driving collided with a child, causing severe injuries to the child, who later died. The responding officer testified that the collision occurred at about sunset, that there were no cars or trees obscuring the view alongside the road, that the road was straight, and that the view was "[absolutely clear." The speed limit where the collision occurred was twenty-five miles per hour. The seriously injured child lay "to the front" of Colstad's pickup truck. The child's injuries appeared so severe that the officer believed the child would die.

¶ 3. After briefly observing the scene, the officer made contact with Colstad at approximately 8:17 p.m. Colstad reported that the child darted out into the road and ran into the side of his truck. Colstad told the officer he had been driving approximately fifteen to twenty miles per hour because he noticed several children were present on one side of the street, and he was used to seeing lots of children in that area.

¶ 4. After speaking with Colstad for one or two minutes, the officer directed Colstad to wait at a location away from the accident scene. During this contact, the officer did not notice Colstad exhibiting signs of intoxication. The officer then proceeded to assist with providing CPR to the child. He also photographed and marked the scene. The officer described the scene as chaotic, with ambulances, fire trucks, and onlookers present.

¶ 5. Sometime later, the officer contacted Colstad a second time. During this second encounter, the officer detected a mild odor of intoxicants on Colstad, and Colstad admitted having had two beers that evening. At 9:02 p.m., the officer directed Colstad to perform field sobriety tests and then administered a preliminary breath test. It is undisputed that the results of these tests, combined with other information, supplied probable cause to arrest Colstad for operating a vehicle while intoxicated. A subsequent test revealed that Colstad's blood alcohol content was .117%.

¶ 6. Colstad was charged with homicide by operation of a vehicle while under the influence of an intoxicant, homicide by operation of a vehicle with a prohibited alcohol concentration, and homicide by negligent operation of a vehicle. Colstad moved to suppress the test results from breath and blood samples taken from him, as well as the results of the field sobriety tests. The trial court denied the motion, and Colstad pled guilty to homicide by operation of a vehicle while having a prohibited alcohol concentration.

Discussion

A. Whether Colstad's Initial Detention was Justified by Reasonable Suspicion of a Civil Traffic Violation

¶ 7. The State does not dispute that the officer seized Colstad when he directed Colstad to move to a location away from the accident scene and wait. We will assume a seizure occurred at this point in time. The State also appears to concede that evidence subsequently obtained, including the results of the field sobriety tests and the blood draw, should be suppressed if this initial temporary seizure was illegal. Thus, we must decide whether the initial investigative seizure violated Colstad's Fourth Amendment protection against unreasonable seizures.

¶ 8. In order to justify an investigatory seizure, "[t]he police must have a reasonable suspicion, grounded in specific articulable facts and reasonable inferences from those facts, that an individual is [or was] violating the law." State v. Gammons, 2001 WI App 36, ¶ 6, 241 Wis. 2d 296, 625 N.W.2d 623. "The question of what constitutes reasonable suspicion is a common sense test: under all the facts and circumstances present, what would a reasonable police officer reasonably suspect in light of his or her training and experience." State v. Young, 212 Wis. 2d 417, 424, 569 N.W.2d 84 (Ct. App. 1997). Before initiating a brief stop, an officer is not required to rule out the possibility of innocent behavior. State v. Anderson, 155 Wis. 2d 77, 84, 454 N.W.2d 763 (1990). "A trial court's determination of whether undisputed facts establish reasonable suspicion justifying police to perform an investigative stop presents a question of constitutional fact, subject to de novo review." State v. Sisk, 2001 WI App 182, ¶ 7, 247 Wis. 2d 443, 634 N.W.2d 877.

¶ 9. The State argues there was reasonable suspicion to believe Colstad had committed a criminal violation, such as causing great bodily harm by negligent operation of a vehicle under Wis. Stat. § 346.62. We question whether the facts known to police amounted to probable cause to believe Colstad was criminally negligent, but we need not resolve the issue. Rather, we agree with the State's contention that a temporary investigative stop was justified by reasonable suspicion that Colstad violated a traffic ordinance.

¶ 10. The State argues that the facts known to police justified an investigative stop because the facts supplied reasonable suspicion to believe Colstad violated a traffic ordinance prohibiting inattentive driving. Colstad responds that an officer must possess probable cause before detaining a citizen based on suspicion of any civil infraction; that mere reasonable suspicion only justifies an investigatory stop if the suspected offense is a crime.

¶ 11. This court addressed the applicability of the reasonable suspicion standard to a non-criminal traffic violation in State v. Griffin, 183 Wis. 2d 327, 515 N.W.2d 535 (Ct. App. 1994). In Griffin, we held that an officer may perform an investigatory stop of a vehicle based on a reasonable suspicion of a non-criminal traffic violation. See id. at 331-34. This holding was followed and aptly described in Gammons, 2001 WI App 36 at ¶¶ 7-9.

In [Griffin], we held that "the absence of a registration plate, and reasonable inferences that can be drawn from that fact, constitute[] reasonable suspicion sufficient to justify an investigatory stop of a motor vehicle." In Griffin, the defendant's vehicle bore a "license applied for" sign. We reasoned that, without stopping the vehicle, the officers in Griffin had no way of knowing whether the defendant was in violation of vehicle registration laws.

Id. at ¶ 7 (citations omitted). The state supreme court also relied on Griffin when it explained: "[A]n officer may make an investigative stop if the officer 'reasonably suspects' that a person has committed or is about to commit a crime, or reasonably suspects that a person is violating the non-criminal traffic laws ... County of Jefferson v. Renz, 231 Wis. 2d 293, 310, 603 N.W.2d 541 (1999) (footnote and citations omitted).

¶ 12. We acknowledge that some United States Supreme Court cases seemingly assume that probable cause is needed to support a stop for civil infractions. See, e.g., City of Indianapolis v. Edmond, 531 U.S. 32, 51 (2000) ("The reasonableness of an officer's discretionary decision to stop an automobile .. . turns on whether there is probable cause to believe that a traffic violation has occurred."); Whren v. United States, 517 U.S. 806, 810 (1996) ("[T]he decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred."). However, we have not found any United States Supreme Court decision squarely addressing this topic. Taking the Whren decision as an example, the Tenth Circuit explains:

In Whren, the [United States Supreme] Court stated that, "[a]s a general matter, the decision to stop an automobile is reasonable where police have probable cause to believe that a traffic violation has occurred." .. .
While [Whren and similar cases] indicate that probable cause is a sufficient ground for a stop, none of them indicates that it is necessary for a stop. Other Supreme Court and Tenth Circuit cases have held that reasonable articulable suspicion is also sufficient grounds to justify a stop.

United States v. Callarman, 273 F.3d 1284, 1286 (10th Cir. 2001) (citations omitted).

¶ 13. Accordingly, we are bound to follow the rule set out in Griffin. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997). Because Colstad's temporary detention was proper if supported by reasonable suspicion that Colstad violated a civil traffic ordinance, we proceed to address whether the facts known to police constituted reasonable suspicion.

¶ 14. The undisputed testimony demonstrates that the collision occurred on a straight road with "absolutely clear" conditions and no trees, obstructions, or parked cars on the side of the road. Colstad explained that, although he was driving slowly because he knew children were in the area, a child ran into the road and into the side of his pickup truck. One possible explanation is that provided by Colstad: Colstad was exercising due care and the child darted into his path. However, another reasonable explanation is that Col-stad hit the child because Colstad was not exercising proper attentiveness. The officer was not required to believe Colstad's explanation. Therefore, we conclude that the officer possessed a reasonable suspicion that Colstad was guilty of inattentive driving, contrary to Wis. Stat. § 346.89(1).

B. Whether Colstad's Detention was an Illegal De Facto Arrest

¶ 15. Colstad next argues that his detention was not "temporary," but was instead a de facto arrest because of its extended duration. He further argues that his de facto arrest was illegal because it was not supported by probable cause.

¶ 16. A brief investigatory stop is permitted when the length and scope of a detention is reasonable:

For the stop of a person to pass constitutional muster as investigatory, the detention must be temporary and last no longer than is necessary to effect the purpose of the stop. "Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time." A hard and fast time limit rule has been rejected. In assessing a detention for purposes of determining whether it was too long in duration, a court must consider "whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it is necessary to detain" the suspect. In making this assessment, courts "should not indulge in unrealistic second-guessing." In assessing a detention's validity, courts must consider the " 'totality of the circumstances — the whole picture,'" because the concept of reasonable suspicion is not" 'readily, or even usefully, reduced to a neat set of legal rules.'"

State v. Wilkens, 159 Wis. 2d 618, 625-26, 465 N.W.2d 206 (Ct. App. 1990) (internal footnoted citations omitted).

¶ 17. Colstad argues that the duration of his detention was unreasonable because the officer directed him to wait, instead of questioning Colstad sufficiently to dispel or confirm the officer's suspicions, and because Colstad was made to wait approximately thirty to forty-five minutes before the officer resumed questioning. The State responds that the duration of the detention was reasonable given the chaotic accident scene and need for the officer to attend to the victim and process the scene. We agree with the State.

¶ 18. Between the first and second contacts with Colstad, the officer was providing medical assistance to the injured child, investigating the scene, taking photographs, and marking the scene. It was reasonable for the officer to direct Colstad to wait while the officer performed these tasks. Furthermore, to the extent the officer made observations about the victim and the scene during this time, the officer was acting to dispel or confirm his suspicions, consistent with the purpose of a temporary investigative stop. Accordingly, we reject Colstad's contention that his temporary detention became a de facto arrest at some point prior to the time the officer resumed speaking with him.

C. Propriety of Continued Detention to Administer Field Sobriety Tests

¶ 19. Colstad next argues that the officer's second contact with him elicited no new information that would justify continuing Colstad's detention to administer field sobriety tests. We disagree.

If, during a valid traffic stop, the officer becomes aware of additional suspicious factors which are sufficient to give rise to an articulable suspicion that the person has committed or is committing an offense or offenses separate and distinct from the acts that prompted the officer's intervention in the first place, the stop may be extended and a new investigation begun. The validity of the extension is tested in the same manner, and under the same criteria, as the initial stop.

State v. Betow, 226 Wis. 2d 90, 94-95, 593 N.W.2d 499 (Ct. App. 1999). Thus, we must determine whether the officer discovered information subsequent to the initial stop which, when combined with information already acquired, provided reasonable suspicion that Colstad was driving while under the influence of an intoxicant.

¶ 20. Colstad acknowledges that the officer smelled a mild odor of alcohol during the second contact, but argues that a mild odor of alcohol alone does not provide reasonable suspicion because it is not illegal in Wisconsin to drive after consuming alcohol. Colstad further points out that the officer did not observe any other indication of intoxication, such as balance problems, slurred speech, or bloodshot eyes. Finally, Colstad asserts that accidents caused by a child darting into the path of a vehicle are typically not the fault of the driver, and thus the accident did not provide evidence of intoxicated driving, citing State v. Caibaiosai, 122 Wis. 2d 587, 603-04, 363 N.W.2d 574 (1985) (Abrahamson, J., dissenting) (suggesting that "a child who darts into the path of the car. . . from between parked cars" is a situation where the driver is not typically at fault).

¶ 21. We disagree that the only indication of Colstad's intoxication was the mild odor of alcohol, and repeat that the officer was not obliged to accept as true Colstad's assertion that the child suddenly darted into the path of his truck. The officer did not know what caused the collision, but he did know it was not caused by a child darting out from behind an obstruction, such as a parked car. Even assuming the child ran quickly toward Colstad's truck, typically a person driving slowly and watchful of nearby children can respond quickly if a child unexpectedly runs toward his or her car. A prudent driver would not pass so close to the children that he or she could not respond to a sudden move. Thus, one reasonable possibility was that Colstad struck the child with his pickup truck because his judgment and driving skills were impaired by alcohol. The officer properly extended the stop to conduct field sobriety tests.

D. Whether the Result of the Preliminary Breath Test was Properly Considered When Assessing Probable Cause to Arrest

¶ 22. Colstad argues that the officer lacked authority to administer a preliminary breath test (PBT) and that, without the result of that test, Colstad's subsequent arrest and blood draw were not supported by probable cause. In Colstad's view, this means the results of his subsequent blood test should have been suppressed.

¶ 23. Wisconsin Stat. § 343.303 authorizes an officer to administer a preliminary breath test when the officer has "probable cause to believe" the person is violating or has violated a drunk driving law. In this context," 'probable cause to believe' refers to a quantum of proof greater than the reasonable suspicion necessary to justify an investigative stop,. . . but less than the level of proof required to establish probable cause for arrest." Renz, 231 Wis. 2d at 316.

¶ 24. Colstad points to several undisputed facts and argues that they show the officer did not possess "probable cause to believe" Colstad had been driving while intoxicated. Colstad points out that during the balance-and-count test, he exhibited no problem with his balance; that during the walk-and-turn test, he only stepped off the imaginary line twice and there was no testimony that his mild "upper body sway" was significant; that during the alphabet test, he slurred only the letters L, M, N, and O, which he contends frequently sound slurred because people often accelerate through these letters in tune to the "ABC" song; and that at no other time did the officer observe Colstad slur his speech or exhibit a lack of proper balance. According to Colstad, if field sobriety tests are to serve any function, "persons who perform well on the tests should not be further detained."

¶ 25. Colstad's argument is based on a selective view of the evidence. It is true the officer testified that Colstad performed "better than most" on the field sobriety tests, but the officer's testimony nonetheless demonstrates that Colstad erred on each of the sobriety tests. Colstad began the balance-and-count test prematurely, indicating divided attention — a sign of intoxication. During the balance-and-count test, Colstad was directed to count from one thousand one to one thousand thirty, but stopped including "one thousand" in his count upon reaching one thousand sixteen. He continued counting from seventeen to thirty without saying "one thousand." On the walk-and-turn test, Colstad twice failed to walk toe-to-heel in a straight line. Regarding the alphabet test, the officer rejected the characterization that Colstad simply accelerated during the letters L, M, N, and O. Rather, the officer asserted that Colstad slurred his speech during these letters. When Colstad's performance of the field sobriety tests is combined with the mild odor of intoxicants and the suspicious circumstance of Colstad's truck colliding with a child on an unobstructed street where Colstad was allegedly watching for children, the totality of the facts supports "probable cause to believe" Colstad was driving while intoxicated.

¶ 26. Accordingly, the officer possessed "probable cause to believe," within the meaning of Wis. Stat. § 343.303, and was authorized to administer the PBT.

¶ 27. Colstad contends the PBT result should not have been considered for two additional reasons: (1) the State failed to demonstrate at the suppression hearing, as required by Wis. Stat. § 343.303, that the PBT used was "approved by the department" for preliminary breath testing, and (2) the PBT evidence was inadmissible at the suppression hearing under State v. Doerr, 229 Wis. 2d 616, 599 N.W.2d 897 (Ct. App. 1999), because it was not accompanied by expert testimony. We reject both arguments.

¶ 28. Colstad's statutory "approved by the department" argument has been waived. Before the circuit court, Colstad argued only that the PBT evidence was inadmissible under Doerr because it was not supported by expert testimony. Colstad did not apprise the circuit court that he was objecting under the "approved by the department" provision of Wis. Stat. § 343.303. See State v. Caban, 210 Wis. 2d 597, 604, 563 N.W.2d 501 (1997) (issues not presented to trial court will not be considered for the first time on appeal).

¶ 29. Colstad's contention that expert testimony is a prerequisite for admission of a PBT result at a suppression hearing is not supported by Doerr. In Doerr, we concluded that, in a trial on a charge other than a motor vehicle violation, admission of a PBT result requires expert testimony to establish "the device's scientific accuracy and reliability and [to] prove compliance with accepted scientific methods as a foundation for the admission of the test results." Doerr, 229 Wis. 2d at 625. Doerr does not require that expert testimony accompany PBT results in cases involving motor vehicle violations. See id. at 622-25.

Conclusion

¶ 30. For the above reasons, we sustain the trial court's decision to deny Colstad's suppression motion. We affirm Colstad's conviction.

By the Court. — Judgment affirmed.

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

      " '[C]riminal negligence' means ordinary negligence to a high degree, consisting of conduct that the actor should realize creates a substantial and unreasonable risk of death or great bodily harm to another . ..." Wis. Stat. § 939.25(1). At the time Colstad was initially detained, the officer had neither smelled an odor of intoxicants nor observed Colstad exhibit any other sign of intoxication. There was no indication that Colstad was speeding, driving erratically, or deviating from his lane of traffic. At the same time, the unexplained nature of the collision, especially in fight of Colstad's assertion that he was driving slowly and looking out for children, was cause for some suspicion.

       We note that courts in other jurisdictions permit an investigatory stop for civil infractions. See United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (holding that "a traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring"); Berge v. Comm'r of Pub. Safety, 374 N.W.2d 730, 732-33 (Minn. 1985) (reasonable suspicion of failing to stop at a stop sign); State v. Farabee, 22 P.3d 175, 178-79 (Mont. 2000) (reasonable suspicion of driving with inoperable headlight); State v. Henderson, 966 P.2d 137, 140-41 (Mont. 1998) (reasonable suspicion of operating without required license plates); State v. Ova, 539 N.W.2d 857, 858-60 (N.D. 1995) (reasonable suspicion of careless driving).

       The evidence does not specify exactly where the child lay in relation to Colstad's truck. We only know that the child lay "to the front" of Colstad's truck. This might mean in front of his truck or to the side of his truck near the front, but behind the front.

       WISCONSIN Stat. § 346.89(1) reads: "No person while driving a motor vehicle shall be so engaged or occupied as to interfere with the safe driving of such vehicle." The punishment for violating § 346.89(1) is a fine of not less than $20 nor more than $400. See Wis. Stat. § 346.95(2).

       Wisconsin Stat. § 343.303 reads, in relevant part:
      If a law enforcement officer has probable cause to believe that the person is violating or has violated s. 346.63(1) or (2m) or a local ordinance in conformity therewith, or s. 346.63(2) or (6) or 940.25 or s. 940.09 where the offense involved the use of a vehicle,. .. the officer, prior to an arrest, may request the person to provide a sample of his or her breath for a preliminary breath screening test using a device approved by the department for this purpose. The result of this preliminary breath screening test may be used by the law enforcement officer for the purpose of deciding whether or not the person shall be arrested for a violation of s. 346.63(1), (2m), (5)... or a local ordinance in conformity therewith, or s. 346.63(2) or (6), 940.09(1) or 940.25 and whether or not to require or request chemical tests as authorized under s. 343.305(3). The result of the preliminary breath screening test shall not be admissible in any action or proceeding except to show probable cause for an arrest, if the arrest is challenged, or to prove that a chemical test was properly required or requested of a person under s. 343.305(3).

       The Doerr decision states that "[t]he PBT device has not been approved by the DOT." State v. Doerr, 229 Wis. 2d 616, 624, 599 N.W.2d 897 (Ct. App. 1999). We assume this statement is directed at the particular PBT device used in Doerr. A current listing of approved PBTs is available from the Chemical Test Section of the Wisconsin State Patrol. See Note to Wis. Admin. Code § TRANS 311.04.


author: DEININGER, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Harold C. Pote, III, Defendant-Appellant.
    Court of Appeals

      No. 02-0670-CR.

      Submitted on briefs September 10, 2002.

      Decided January 30, 2003.

    2003 WI App 31
    (Also reported in 659 N.W.2d 82.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of John A. Pray of Legal Assistance Program, U.W. Law School, Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Sally L. Wellman, assistant attorney general, and James E. Doyle, attorney general.
    Before Dykman, Deininger and Lundsten, JJ.
   DEININGER, J.

¶ 1. Harold Pote appeals a judgment sentencing him to prison for failure to pay child support. The circuit court imposed the sentence after it determined that Pote had rejected the probation the court originally ordered. Pote also appeals an order denying postconviction relief from the appealed judgment and an order denying relief under Wis. Stat. § 974.06 (1999-2000) from the earlier judgment convicting him of the offense. With respect to the conviction itself, Pote claims his trial counsel was ineffective for failing to investigate a possible defense to the charge and for failing to properly advise him regarding his no-contest plea. As to the judgment sentencing him to prison for two years, Pote claims that (1) the trial court erred in concluding that he had rejected probation; (2) his trial counsel was ineffective for failing to make a sentencing argument; and (3) the trial court erroneously exercised its discretion in imposing the maximum sentence.

¶ 2. We conclude that Pote's trial counsel was not ineffective in his representation prior to the entry of Pote's plea to the offense. Accordingly, we affirm the order denying Pote relief from the conviction under Wis. Stat. § 974.06. We also conclude that the trial court did not err in determining that Pote had rejected the probation originally imposed. We conclude, however, that Pote's counsel was ineffective for failing to make a sentencing argument, or in the alternative, for failing to request that he be permitted to withdraw. Because we reverse the appealed judgment and remand for a new sentencing hearing, we do not address whether the court erroneously exercised its discretion in imposing the maximum term of confinement and extended supervision.

BACKGROUND

¶ 3. The State charged Pote under Wis. Stat. § 948.22(2) (1997-1998) with intentionally failing to pay court-ordered child support for two periods of 120 days or more. The first felony charge covered the period May 4 through December 31, 1999, and carried a maximum potential indeterminate sentence of two years imprisonment. See Wis. Stat. § 939.50(3)(e) (1997-1998). The second count charged that Pote intentionally failed to pay support for the period January 1 through September 26, 2000, and this offense carried a maximum five-year sentence, bifurcated into a term of up to two years of confinement and up to three years of supervised release. See id.; Wis. Stat. § 973.01(1) and (2)(b)5 (1997-1998).

¶ 4. Pote and the State entered into a plea agreement whereby Pote pleaded no contest to the second count, the first count was dismissed, and the parties jointly recommended probation with conditions not including jail time. The court accepted Pote's plea and imposed a four-year term of probation in accordance with the parties' agreement. At the time of the plea and sentencing, Pote was serving a 180-day jail commitment as a civil contempt sanction for his failure to pay child support as ordered in the relevant paternity judgment.

¶ 5. The parties returned to court two months later at the request of Pote's probation officer, who requested the court to conduct a "status review" of Pote's probation. The probation officer reported to the court the following:

Mr. Pote has refused to cooperate with the department regarding intake proceedings and has refused to sign any departmental documentation [i.e., probation rules], Mr. Pote is adamant that he "did not" agree to a plea bargain for probation and has stated he "will not" do anything until a DNA test is performed to prove he "is not" the father of the child.

The agent stated in her letter to the court that she did not believe the Department of Corrections could revoke Pote's probation for his refusal to sign the probation rules. She requested, however, that the court review the circumstances and recommended "that the probation order be vacated and a jail sentence ... be granted."

¶ 6. At the review hearing, the State asked the court to vacate Pote's conviction and the order for probation, declare his plea withdrawn, reinstate the dismissed count and set both counts for trial. The following then transpired:

THE COURT: Then, [defense counsel] is he rejecting probation?
[DEFENSE COUNSEL]: No.
THE COURT: Then have him sign the rules right now.
[DEFENSE COUNSEL]: What he has indicated is that he had been asking for a DNA test.... [Explains that mother of the child would cooperate and Red Cross would do testing if court so ordered.]
THE COURT: ...[T]his court is not about to order that. I have nothing before me in which to do so.
[DEFENSE COUNSEL]: Well, Mr. Pote's position is that he would gladly sign the orders if he has a DNA test result showing that he is the father.
THE COURT: There's no bargaining. He either accepts probation or he doesn't.
THE COURT: ...So is he rejecting probation or not? If he isn't rejecting it, he signs the papers now. If he does not, I'm treating it as a rejection and will proceed to sentence him....
(Defendant conferring with counsel off the record)
THE DEFENDANT: Then I guess I sit in jail.
THE COURT: Then he has rejected probation. Do you know of any reason why this Court should not proceed to sentence you at this time?
THE DEFENDANT: I want a DNA test.
THE COURT: I'm not going to order that.
THE COURT: [Prosecutor], your recommendation for sentence?
[PROSECUTOR]: Your Honor, it's clear that this defendant is flaunting the law, has absolutely no intent to ever comply with his legal obligations.
The State recommends that the Court impose the maximum two years initial term of confinement that the Court can impose, plus three years consecutive extended term of supervision.
THE COURT: Okay, [defense counsel]?
[DEFENSE COUNSEL]: Your honor, I discussed this with Mr. Pote and his wife and am authorized to request a sentence of time served.
THE COURT: Okay. Mr. Pote, anything further before I proceed to sentence you? ...
(Defendant conferring with counsel off the record)
THE DEFENDANT: I'm getting screwed either way....
I ain't got no problem signing papers. Like I told the young lady, I'll sign the papers as long as I know the child was mine....
THE COURT: Anything further?
THE DEFENDANT: ...That's all I got to say.
THE COURT: Then the Court will consider in sentencing the defendant his age. First of all he was born on October 21st, 1957. The Court will consider as well — I don't know of any adult record that he has previously. Do you, [prosecutor]?
[PROSECUTOR]: He spent a great deal of his time in Michigan. I'm not sure of what his record may be in Michigan. I'm not aware of any other — let's see.
[PROSECUTOR]: No, I don't have anything on any prior Wisconsin record, I guess.
THE COURT: The Court will also find and consider his lack of cooperation in this matter, consider the seriousness of this crime. The crime is not supporting a child for more than 120 days, which is a serious matter and a problem throughout the United States and one that must be combated.
Considering the statements of the District Attorney, as well as defense counsel. I'm going to consider the rights of the public and the need to protect the public in this matter. I'm going to... consider the deterrent effect of this sentence and the need to deter the defendant and others from committing the same or similar crimes.
I'm going to consider his rehabilitation needs, and certainly does need rehabilitation in this matter. I'm going to consider the moral need for punishment in not supporting one's child in this matter.
In taking into consideration those sentencing guidelines, or not guidelines but considerations in this matter and the extended period of time in which this matter took place, that the child is 17 years of age at this point in time, the Court will sentence the defendant to two years in the Wisconsin State Prisons and will order an extended term of supervision in this matter of three years.
[DEFENSE COUNSEL]: Your Honor, Mr. Pote has now indicated that he would sign the probation rules and their papers.
THE COURT: I think he's a little late.

¶ 7. Pote's counsel timely filed a notice of Pote's intent to pursue postconviction relief from the judgment sentencing him to prison. Counsel subsequently moved to withdraw, however, averring that "[d]ue to the Defendant's recent conduct, representation ... of the Defendant has been rendered unreasonably difficult." The court granted the withdrawal request, but the State Public Defender declined to appoint successor counsel, having found Pote ineligible for continued representation, apparently because of his wife's earnings. Pote subsequently obtained postconviction counsel from the Frank J. Remington Center at the University of Wisconsin Law School. His new counsel moved for relief under Wis. Stat. § 974.06 from the conviction on the grounds that Pote was denied effective assistance of counsel and his plea was not voluntarily, knowingly and intelligently made. Pote also moved under Wis. Stat. §§ 809.30 and 974.02 for relief from the judgment sentencing him to prison on the grounds that he had not rejected probation and that his counsel had been ineffective at the review/sentencing hearing.

¶ 8. At the postconviction hearing, Pote presented testimony from an orthopedic surgeon who had treated Pote for a shoulder injury during most of the year 2000. The doctor testified that Pote underwent two separate surgeries during that time and that he was essentially unable to "work at any job" from February through November of that year. The doctor also stated that he had no recollection or record of any contact from Pote's trial counsel. Pote's wife and Pote also testified to his inability to work during most of the year 2000.

¶ 9. Pote testified that he informed his trial counsel about the shoulder injury and surgeries. He also said that his counsel advised him to accept the State's plea offer and that he did not know that his inability to work in 2000 would have constituted a defense to count two. Regarding his refusal to sign the probation rules, he claimed that no one had ever explained "what probation was" to him and that he was unaware when he returned to court for the review hearing that his probation might be terminated. Pote explained that when he told the court "I guess I'll sit in jail," he was referring to his civil contempt sanction which he was then still serving. Finally, he testified that he never instructed his counsel not to make a sentencing argument on his behalf and he did not threaten his counsel.

¶ 10. Pote's trial counsel testified that he was aware of Pote's shoulder problems, but that the only information he was able to obtain was "a two-sentence letter" that Pote was under the doctor's care and "should be seen in follow up by an orthopedic surgeon." Counsel said that he made several attempts "to schedule a time" to speak with the doctor on the phone, but the doctor's "office never responded with such a time." Counsel explained that he was aware of the possibility of a medical disability defense to the "[s]lightly more serious" second count, but that Pote had no defense to count 1, and that Pote's "instruction was to get him a deal which would result in no moré jail time. I did that, and then his instructions were to stop negotiating further, and I did that." He also testified that he did not advise Pote to take the State's offer — "He . . . accepted it. It was his choice."

¶ 11. Regarding the events at the status review cum sentencing hearing, counsel claimed that Pote "forbade me to try to do anything about" the court's finding that he was rejecting probation, and that the "only thing I could have done would have been to knock him unconscious because he was going to express his rage to the Court that day." Counsel further testified that Pote "became violent and angry and threatened me," and that counsel "probably could have made some" sentencing arguments but felt "duty bound" to follow Pote's instructions, which "included not making a sentencing argument."

¶ 12. The trial court denied relief from the conviction, concluding that Pote's trial counsel had not rendered ineffective assistance of counsel with respect to Pote's plea to count two in exchange for the dismissal of count one and a recommendation for probation with no jail time. As to Pote's rejection of probation, the court reaffirmed its earlier conclusion that, by his words and actions at the review hearing, Pote had in fact rejected the probation originally ordered. As to counsel's performance with respect to the sentencing that immediately followed, the court found credible counsel's testimony that Pote threatened him and instructed him to do nothing, and that under the circumstances, counsel "had to follow what his client is telling him to do." Accordingly, the court entered orders denying Pote's motions for relief from either the conviction or the sentence.

ANALYSIS

¶ 13. To prevail on a claim of ineffective assistance of counsel, a defendant must establish that his trial counsel's performance was deficient and that this performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Whether trial counsel's actions constitute ineffective assistance presents a mixed question of law and fact. See State v. Pitsch, 124 Wis. 2d 628, 633-34, 369 N.W.2d 711 (1985). We will not reverse the trial court's factual findings regarding counsel's actions at trial unless those findings are clearly erroneous. See id. at 634.

¶ 14. Whether trial counsel's performance was deficient and whether that behavior prejudiced the defense, however, are questions of law which we review de novo. See id. In analyzing an ineffective assistance claim, this court may choose to address either the "deficient performance" component or the "prejudice" component first. See Strickland, 466 U.S. at 697. If we determine that the defendant has made an inadequate showing on either component, we need not address the other. See id.

¶ 15. In order to establish deficient performance, Pote must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. However, "every effort is made to avoid determinations of ineffectiveness based on hindsight.. . and the burden is placed on the defendant to overcome a strong presumption that counsel acted reasonably within professional norms." State v. Johnson, 153 Wis. 2d 121, 127, 449 N.W.2d 845 (1990). In reviewing counsel's performance, we judge the reasonableness of counsel's conduct based on the facts of the particular case as they existed at the time of the conduct and determine whether, in light of all the circumstances, the omissions fell outside the wide range of professionally competent representation. Strickland, 466 U.S. at 690.

¶ 16. To prove prejudice, Pote must show that trial counsel's errors had an actual, adverse effect on the defense. See id. at 693. He must establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Specifically, in order to prevail, Pote must convince us that, but for his counsel's improper actions or omissions, it is reasonably probable that he would not have pleaded no contest to count two, or that he would not have received the maximum sentence for the offense.

I.

¶ 17. We first consider Pote's claim that his counsel performed deficiently by not fully investigating his possible medical disability defense to count 2 and by not properly advising him regarding his plea to that count. As we have noted, we are bound by the trial court's factual findings regarding what Pote's counsel did or did not do, unless they are clearly erroneous. We accept the trial court's findings in this case inasmuch as they are largely based on its credibility determinations. See State v. Hampton, 217 Wis. 2d 614, 623, 579 N.W.2d 260 (Ct. App. 1998) ("We are not empowered to substitute our own credibility determinations for those made by the trial court.").

¶ 18. The trial court explicitly found Pote's counsel's testimony regarding what he did and did not do, and his reasons therefor, to be credible, and it found Pote's testimony incredible in several regards. In a nutshell, the court found that counsel attempted to contact Pote's doctor about the shoulder injury; that he discussed the charged offenses and "the defense on count 2" with Pote; that Pote sought a disposition that would not require him to serve additional jail time; and that counsel procured the offer of such a disposition from the State, which Pote freely accepted. The court concluded that counsel obtained "a very successful result for his client that he wasn't going to jail." We do not disagree.

¶ 19. Pote is correct that to provide effective representation to a person charged with a crime, an attorney is obligated to adequately investigate any potential defenses and discuss them with his or her client. See Pitsch, 124 Wis. 2d at 638. Defense counsel should also thoroughly discuss any proposed plea agreement and its advantages and disadvantages with the client. See State v. Rock, 92 Wis. 2d 554, 563-64, 285 N.W.2d 739 (1979). The trial court found that counsel did precisely these things in this case. We disagree with Pote's suggestion that his counsel was obligated to recommend to him that he reject the offer because of the possibly meritorious defense to one of the two counts with which he was charged, or that counsel should have ignored Pote's instruction to obtain an overall disposition involving no jail time. Even though Pote established at the postconviction hearing that the medical defense to count two may have been stronger than Pote or his counsel believed prior to Pote's plea, as the trial court noted, this would not have diminished Pote's exposure to a felony conviction on count one.

¶ 20. We conclude that, in light of the trial court's factual findings based on its assessment of Pote's and his counsel's credibility, counsel's pre-plea performance fell within the wide range of professionally competent representation. Strickland, 466 U.S. at 690. Having so concluded, it is not necessary for us to address whether counsel's performance prejudiced Pote with respect to the tender and acceptance of his plea. See id. at 697.

II.

¶ 21. We next address whether the trial court erred in determining at the "status review" hearing that Pote rejected the probation the court originally ordered.

¶ 22. In Wisconsin, the power to revoke a judicially imposed term of probation is statutorily vested with the executive branch. Wis. Stat. § 973.10(2); see State v. Horn, 226 Wis. 2d 637, 653, 594 N.W.2d 772 (1999). The sentencing court may, however, modify the conditions of or extend a term of probation. Wis. Stat. § 973.09(3)(a). The supreme court has determined that when a defendant refuses to accept probation and requests instead that a sentence be imposed, a court must honor the request. State v. Migliorino, 150 Wis. 2d 513, 540-42, 442 N.W.2d 36 (1989). This court concluded in State v. McCready, 2000 WI App 68, 234 Wis. 2d 110, 608 N.W.2d 762, that Migliorino and not Horn governs when a defendant who has already served a portion of his or her probation requests the court to terminate the probation and impose a sentence. Id. at ¶¶ 4-6.

¶ 23. In order to address Pote's claim that the trial court erred in determining that he had rejected the probation originally ordered, we must answer two distinct questions. The first is whether the trial court's determination that Pote rejected probation is a factual question not to be disturbed on appeal unless clearly erroneous, or one of law subject to our de novo review. Not surprisingly, the State contends it is the former while Pote argues it is the latter. We agree with the State.

¶ 24. In support of his assertion that our review should be de novo, Pote cites State v. Hansen, 168 Wis. 2d 749, 755, 485 N.W.2d 74 (Ct. App. 1992). Our opinion in Hansen, however, had nothing to do with a defendant's rejection of probation. On the page Pote cites, we stated only the well-established principle that our review of whether a defendant has made a prima facie showing that a plea was accepted without the procedures required under State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), is "a question of law which we review without deference to the trial court's determination." Hansen, 168 Wis. 2d at 755. As we explain below, we conclude that Bangert-like procedures are not required when a defendant opts to forego probation in favor of an imposed sentence. We thus conclude that Hansen is of no assistance on the question of whether the determination that a defendant has rejected probation is one of fact or of law.

¶ 25. At bottom, the question is one of determining Pote's intent when he appeared before the trial court for a review of the status of his probation. Determining what a person intends by evaluating his or her words and actions under the facts and circumstances at hand is generally viewed as a factual determination. See State v. Lettice, 221 Wis. 2d 69, 77, 585 N.W.2d 171 (Ct. App. 1998) ("Whether a prosecutor intended to provoke a mistrial... is a question of fact. . . ."). Thus, we may set aside the trial court's determination that Pote, by his words and actions in its presence, communicated a refusal to accept the. probation originally ordered only if we conclude that the determination was clearly erroneous. We conclude it was not.

¶ 26. Pote points out that his counsel replied in the negative when the court inquired "is he rejecting probation?" We conclude the relevant inquiry, however, is not what Pote's counsel told the court, but what Pote himself communicated to the court regarding his intent. When the court specifically informed Pote that it would deem it a rejection of probation if he refused to then and there sign the rules of probation, Pote, after conferring with counsel, responded, "[t]hen I guess I sit in jail." Although Pote argues that this response was ambiguous and could have been a reference to the service of his civil contempt sanction, it was the trial court's role and not ours to interpret Pote's response. It did so ("Then he has rejected probation."), and we cannot conclude that the court's finding was clearly erroneous.

¶ 27. Pote plainly communicated to his probation officer and the court that he did not intend to comply with the condition of his probation that he pay past and current child support absent proof that he had fathered the child, notwithstanding the paternity judgment so finding and the fact that he had apparently been current in support payments as of May 1, 1999. His counsel, whom the court found credible, testified at the postconviction hearing that "Mr. Pote's position was that he was never going to pay child support, and he didn't care what the consequences were." In short, the record taken as a whole, satisfies us that the trial court's determination that Pote's response indicated his intent to reject probation was not clearly erroneous. Our conclusion is fortified by the deference we must accord the trial court's opportunity to observe and evaluate Pote's demeanor, tone and body language at the probation review hearing.

¶ 28. Pote contends, however, that we should require a defendant's rejection of probation to be clear and unequivocal. That is, Pote would have us reverse because Pote never said "I reject probation" or "I refuse to be on probation." We decline to impose such a requirement. We conclude that a court's focus should be on whether a defendant communicates the intent to refuse probation rather than on the defendant's choice of words. As we have discussed, the question is one of fact for the trial court to determine in the first instance, and for us to review on the clearly erroneous standard.

¶ 29. Even though we conclude the court did not err in its factual determination of Pote's intent, our inquiry into the propriety of the court's determination that Pote rejected probation is not at an end. The second question we must address is what procedural safeguards, if any, should the trial court have employed to ensure that Pote's decision to reject probation was knowing and voluntary? That is, even if the trial court did not err in finding that Pote rejected probation, did it nonetheless err by failing to conduct a colloquy to determine Pote's understanding of the potential consequences of rejecting probation? Pote urges us to adopt a requirement for a probation-rejection colloquy similar to those for the acceptance of a plea, waiver of jury trial or waiver of counsel. The State responds that there is "no logical or legal reason why the doctrines and body of law governing a defendant's waiver of constitutional rights should be layered onto the question of whether a defendant intended to reject probation." Again, we agree with the State.

¶ 30. We do not dispute Pote's assertion that probationers possess a "conditional liberty interest" in the continuation of probation, and that probation cannot be involuntarily terminated without a revocation hearing affording certain procedural protections. See Gagnon v. Scarpelli, 411 U.S. 778 (1973). But this is not a case where the State sought to revoke Pote's probation, and thus the issue before us is not whether Pote knowingly and voluntarily waived his constitutional right to a due process hearing on the State's grounds for revocation. Rather, the question is whether Pote rejected probation in favor of having a sentence imposed for the offense of which he was convicted. We have previously concluded that a "tardy" rejection of probation is nonetheless a rejection, and does not become a revocation or modification simply because the probation term has commenced. See MeCready, 2000 WI App 68 at ¶ 6 ("[T]he right to reject probation lasts throughout the probationary period."). Quite simply, the conditional liberty Pote might have enjoyed on probation was not taken from him by either the State or the court — he opted not to accept the probation offered to him.

¶ 31. While we might not go so far as the State in labeling probation "a matter of grace or privilege," we do agree with it that defendants have no constitutional or statutory right to he placed on probation in lieu of receiving a sentence for an offense. Unlike a defendant who is denied counsel or trial by jury, a defendant cannot claim constitutional error stemming solely from a court's failure to place him or her on probation. We thus reject Pote's suggestion that requirements similar to those in place for waiving a jury trial or representation by counsel are constitutionally required when a defendant declines the opportunity for probation.

¶ 32. We also decline to impose a rigid set of procedures as a matter of common law entitlement. It is sufficient that the record show that the defendant knew the possible consequences of refusing probation, a showing typically supplied (as in this case) by the plea colloquy. Pote was informed before entering his plea that he faced a maximum five-year sentence if convicted of the offense. The court further informed him at the plea hearing that it was not bound by the parties' agreed upon recommendation for probation, and that if the recommended probation were revoked, he could be required to "serve a time in jail or prison." We conclude no additional colloquy was required at the time Pote rejected probation.

III

¶ 33. We next consider whether Pote's counsel rendered effective assistance at the resentencing which immediately followed Pote's rejection of probation. We have described the standards applicable to this inquiry at the beginning of the Analysis section of this opinion. We conclude that counsel performed deficiently at the time of Pote's resentencing and that Pote suffered prejudice as a result of counsel's performance.

¶ 34. We acknowledge that the trial court found credible counsel's testimony that Pote threatened him and instructed him to "do nothing" when the court proceeded to sentence him to prison for his failure to pay child support. We conclude, however, that notwithstanding his client's arguably erratic and irrational behavior, counsel's failure to bring to the court's attention any of several mitigating circumstances relevant to sentencing, or in the alternative, to request a continuation of the sentencing proceeding and permission to withdraw from representation, constituted omissions which fall outside the range of professionally competent representation. See Strickland, 466 U.S. at 690.

¶ 35. First, we see no reason why counsel could not have informed the court that his client was upset over his present circumstances and had requested that counsel not make an argument on his behalf, but that counsel felt obligated to bring to the court's attention one or more of the following facts. Pote had no previous criminal record of any kind. He had cooperated with authorities regarding the present charges by surrendering to Michigan authorities when he became aware of the warrant for his arrest, and by waiving a preliminary hearing and pleading no contest. He was already serving a 180-day civil jail commitment for the same child support delinquency. Counsel might also have noted that Pote had suffered a shoulder injury during the year 2000 which rendered him unable to work for much of the year. And finally, counsel could have pointed out that Pote was not a danger to the community or argued that society, as well as his son and the boy's mother, would be best served by imposing a sentence that would permit Pote to obtain gainful employment in order to meet his support and other obligations.

¶ 36. Because Pote was then serving a civil jail commitment, it is reasonable to assume that jail-transport deputies or a bailiff were present in the courtroom during the resentencing proceeding. We find it hard to accept that counsel would have been in reasonable fear for his physical safety had he proceeded to make the favorable remarks outlined above. However, even if we underestimate the intensity of Pote's emotional state and the credibility of any threats he made toward counsel that morning, we conclude that if counsel believed he could not proceed under the circumstances to argue on Pote's behalf, it was his obligation to seek to withdraw from representation. In short, we conclude that at the time of sentencing, "counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," Strickland, 466 U.S. at 687, and that he should have, at a minimum, taken steps to attempt to protect his client's interests.

¶ 37. The State contends, however, that Pote's counsel cannot be deemed deficient for following his client's instruction to "do nothing" at the resentencing, citing State v. Divanovic, 200 Wis. 2d 210, 546 N.W.2d 501 (Ct. App. 1996). We agree that counsel cannot be faulted for following the informed and well-considered instructions of his or her client. See id. at 225 ("A defendant who. insists on making a decision which is his or hers alone to make contrary to the advice given by the attorney cannot subsequently complain that the attorney was ineffective . . . ."). It is largely because, on the facts found by the trial court, Pote made an informed choice regarding his plea that we decline to deem counsel's pre-plea performance deficient.

¶ 38. There are two flaws in the State's present argument, however. The first is that there is no finding or indication in the record that Pote's counsel informed him of the advisability of counsel's making a sentencing argument or of seeking to continue the sentencing to allow for the substitution of counsel. Thus, to the extent counsel was following his client's instructions at the resentencing hearing, those instructions were not shown to have been given only after Pote had received and considered counsel's advice regarding what actions might be in his best interest. See id. at 224 ("[L]imits on the objectives of representation must follow consultation between the lawyer and the client." (citing SCR 20:1.2 cmt)).

¶ 39. A second reason that our analysis in Divanovic does not apply on the present facts stems from the court's finding that Pote threatened his counsel at the hearing. As we have discussed, our conclusion that counsel did not adequately represent Pote at the sentencing hearing does not rest solely on counsel's failure to make a sentencing argument, but on counsel's failure to recognize that if he felt he could not do so because of his client's threat, he was obligated to seek withdrawal from representation. Counsel did inform the court soon after the sentencing that he felt compelled to withdraw from representing Pote because Pote's conduct had rendered continued representation "unreasonably difficult." We conclude that the belatedly acknowledged rupture in the attorney-client relationship occurred when Pote intimidated his counsel into "doing nothing" at sentencing, and our analysis in Divanovic simply does not speak to such a circumstance.

¶ 40. We next turn to the issue of prejudice. One cannot read the transcript of the resentencing (see ¶ 6 above) without sensing that the prosecutor and defense counsel (and perhaps even the court) were losing patience with Pote's stubbornness. Given the circumstances and the State's request for a sentence to the maximum terms of confinement and supervision, reasonably competent counsel would have realized that a failure to counter the prosecutor's recommendation (or to request a continuance) would not bode well for the client's interests. Counsel, however, did nothing to stop or slow the momentum toward the court's imposition of the requested maximum sentence.

¶ 41. We conclude that Pote suffered prejudice on account of his counsel's failure to adequately represent him at the resentencing. Had counsel made the relevant mitigating arguments legitimately available to Pote on this record, or had he taken steps that would have permitted another attorney to do so on another day, it is "reasonably probable" Pote would have received something less than the maximum sentence. See McCleary v. State, 49 Wis. 2d 263, 275, 182 N.W.2d 512 (1971) ("[T]he legislature intended that maximum sentences were to be reserved for a more aggravated breach of the statutes, and probation or lighter sentences were to be used in cases where the protection of society and the rehabilitation of the criminal did not require a maximum or near-maximum sentence."). In short, Pote could not have fared any worse than he did, and our "confidence in the outcome" of the sentencing proceeding is "undermine[d]." See Strickland, 466 U.S. at 694.

¶ 42. Because we reverse the judgment imposing sentence on the grounds of ineffective assistance of counsel, and we thus remand for resentencing, we do not reach Pote's argument that the court erroneously exercised its discretion by imposing an excessive sentence. We note as well that Pote did not challenge his sentence in the postconviction motions he filed in the trial court, nor did he request the court to modify its sentence. See State v. Chambers, 173 Wis. 2d 237, 261, 496 N.W.2d 191 (Ct. App. 1992) (noting that we will generally decline to address a sentencing challenge not raised in the trial court by appropriate motion).

CONCLUSION

¶ 43. For the reasons discussed above, we order the following disposition: The order entered February 19, 2002, denying postconviction relief under Wis. Stat. § 974.06 from the judgment of March 12, 2001, convicting Pote of felony failure to pay child support, is affirmed. The order of February 19, 2002, denying relief under Wis. Stat. §§ 809.30 and 974.02 from the judgment of June 22, 2001, is affirmed in part and reversed in part. Specifically, the trial court's finding that Pote rejected probation is affirmed, but we reverse with respect to the sentence imposed. Accordingly, the judgment entered June 22, 2001, is also reversed and the case is remanded for resentencing.

By the Court. — Judgment reversed; orders affirmed in part, reversed in part and cause remanded.

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

       The court granted Pote a stay of the remainder of his sentence pending this appeal, releasing him on a signature bond with conditions. At the time of the stay, Pote had served some seven to eight months of the two-year term of confinement to which he was sentenced. He apparently remains free on bond, there being no indication in the record or in the trial court record entries posted on the Consolidated Court Automation Programs (CCAP) Wisconsin Circuit Court Access web site to the contrary.

       In his reply brief, however, without expressly conceding that the question is purely a factual one, Pote asks us to conclude that the trial court's "finding that Mr. Pote intended to reject probation was clearly erroneous."

       Pote argues that his counsel's "one-word response could not have heen any clearer, and this should have ended the matter." We note, however, that if Pote's counsel had instead replied "yes," but Pote's own words and conduct before the court indicated a contrary intent, we would be hard pressed to conclude that Pote had intended to reject probation.

        See State v. Bangert, 131 Wis. 2d 246, 267-72, 389 N.W.2d 12 (1986).

        See State v. Anderson, 2002 WI 7, ¶ 24, 249 Wis. 2d 586, 638 N.W.2d 301.

        See State v. Klessig, 211 Wis. 2d 194, 206, 564 N.W.2d 716 (1997).

       Both the supreme court and this court have noted that the legislature may wish to address the issue of a defendant's right or privilege to reject probation. See State v. Migliorino, 150 Wis. 2d 513, 542, 442 N.W.2d 36 (1989); State v. McCready, 2000 WI App 68, ¶ 6, 234 Wis. 2d 110, 608 N.W.2d 762. If it does so and chooses to retain that option, it may wish to specify the timing and manner for a defendant's exercise of it.

       We recognize that a request to withdraw, if granted, would have required the sentencing to be set over to allow Pote to obtain new counsel, but we conclude that, under the circumstances, a continuance of the sentencing for a reasonable time would have not have prejudiced Pote.