State v. Campbell, 2006 WI 99 (Wis. 7/12/2006)

Decision Date12 July 2006
Docket NumberNo. 2004AP803-CR.,2004AP803-CR.
Citation2006 WI 99
PartiesState of Wisconsin, Plaintiff-Respondent, v. John W. Campbell, Defendant-Appellant.
CourtWisconsin Supreme Court

APPEAL from a judgment and order of the Circuit Court for Walworth County, Robert J. Kennedy, Judge. Affirmed and cause remanded.

For the defendant-appellant there were briefs and oral argument by Charles Bennett Vetzner, assistant state public defender.

For the plaintiff-respondent the cause was argued by James M. Freimuth, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.

DAVID T. PROSSER, J.

¶ 1 This case is before the court on certification by the court of appeals, pursuant to Wis. Stat. § (Rule) 809.61 (2003-04).1 The appellant, John Campbell (Campbell), was convicted of felony bail jumping as well as two counts of parental interference with the custody of a child. On the bail jumping charge, Campbell was accused of committing two crimes while he was on pretrial release for other felony offenses. The two crimes were the two counts of parental interference with the custody of a child. The interference crimes involved alleged violations of an order granted to Campbell's then-wife, Denise Hladish-Campbell (Denise), for temporary custody and primary placement of their two sons.

¶ 2 On appeal, Campbell seeks to reverse one of the two interference with custody charges and the bail jumping charge. He claims that the circuit court erred when it prevented him from collaterally attacking the validity of the custody order on grounds that his wife procured that order by fraud.

¶ 3 This appeal presents two issues. First, did the circuit court err in preventing Campbell from collaterally attacking the validity of the family court's custody order in his criminal trial, even though Campbell alleged that the order was obtained by fraud? Second, under what conditions, if any, may a circuit court impose attorney fees for standby counsel as a condition of a defendant's probation?

¶ 4 We conclude that a court may permit a collateral attack on a judgment or order procured by fraud if the fraud is jurisdictional, making the judgment or order void, thereby negating an element of a crime, or if the fraud raises an affirmative defense to the crime. Because Campbell's allegations of fraud do not tend to negate any element of a crime and do not constitute an affirmative defense, the circuit court properly excluded evidence of the alleged fraud and prevented Campbell from collaterally attacking the custody order.

¶ 5 We also conclude that in exercising its discretion to appoint standby counsel, a circuit court may impose the attorney fees of standby counsel upon a defendant as a condition of probation where either (1) the defendant agrees to reimburse the county for the attorney fees; or (2) the court informs the defendant of his potential liability for the fees and the defendant uses standby counsel so extensively that he or she functions as traditional defense counsel. Under both alternatives, however, before imposing fees the court must determine the defendant's ability to pay pursuant to Wis. Stat. § 973.20(13)(a)2. to 5. Because that determination was not made in this case, we remand to the circuit court to evaluate Campbell's ability to pay.

¶ 6 Accordingly, we affirm Campbell's convictions, hold that the circuit court had the authority, under these facts, to impose the attorney fees of standby counsel as a condition of probation, but remand for the circuit court to determine whether the full amount of attorney fees should have been imposed.

I. BACKGROUND

¶ 7 The facts in this case are complex. Campbell married Denise James (formerly Denise Hladish-Campbell) in 1986. Sometime circa 1990, Vickie Prushing (Vickie), became involved with the couple, and she lived with them for substantial periods of time between 1990 and 1997.

¶ 8 On September 17, 1990, Vickie gave birth to a son, Randy, in Kansas. Campbell is listed as the biological father on Randy's birth certificate, but he may not be the biological father. In any event, Campbell and Denise adopted Randy in Kansas on August 30, 1994. This fact is not in dispute.

¶ 9 On November 11, 1995, Vickie gave birth to a second son, Cody, in Missouri. Again, Campbell is listed as the biological father on the birth certificate. Moreover, in 1996 a Missouri court issued an order recognizing Campbell's paternity.2 A few months later, on September 23, 1996, Campbell and Denise filed a petition in Missouri to adopt Cody. The petition was granted on March 14, 1997, by a Missouri circuit court. The order recognized Campbell as the natural father and declared Denise the adoptive mother of Cody.

¶ 10 Between the time that Campbell and Denise petitioned for the adoption of Cody and the Missouri court's March 14, 1997, adoption decree, the Campbells moved to Wisconsin. By November 1996 they were living in Walworth County, but they failed to share this information with the Missouri court. Campbell and Denise did return to Missouri on two occasions for court hearings. The second time, they brought Cody with them to court, at which time the Missouri court declared Denise the adoptive mother of Cody.

¶ 11 Sometime after they moved to Wisconsin, the Campbells' relationship began to deteriorate. Matters came to a head on September 10, 1997, when Campbell physically assaulted Denise. On September 12 he was charged with second-degree reckless endangering of safety and false imprisonment, both felonies, and battery and disorderly conduct, misdemeanors. Four years later, he pled guilty to battery and disorderly conduct, with the two other charges being dismissed.

¶ 12 The September 12 charges are significant because, after they were filed, Campbell was released on bond with the standard condition that he not commit any crime on release.

¶ 13 Denise petitioned for divorce on September 16, 1997. On September 22, 1997, a family court commissioner issued a temporary order giving legal custody and primary placement of Randy and Cody to Denise. The custody order gave alternate periods of placement to Campbell. On December 23, 1997, the commissioner entered an order giving Campbell placement of Randy and Cody on alternate weekends from 4:00 p.m. Friday to 6:00 p.m. Sunday.

¶ 14 Prior to entry of the temporary order, Campbell challenged the validity of Denise's adoption of Cody. Campbell told the family court commissioner that the adoption decree was void for fraud. Campbell explained that at the time the Missouri court granted the adoption, he and Denise represented to the court that they resided in Missouri, when in fact they did not. Campbell raised the issue with the family court more than once. Ultimately, the family court commissioner rejected Campbell's challenge to the validity of the adoption, ruling that Campbell had to attack the validity of the adoption in Missouri.

¶ 15 Campbell then filed a motion challenging the validity of the custody order, contending the family court lacked jurisdiction and that Denise had secured custody and primary placement by fraudulently representing to the family court commissioner that she was Cody's adoptive mother. Campbell requested and received a de novo hearing from the circuit court. At the hearing on January 22, 1998, the circuit court determined that Campbell could attack the validity of Denise's adoption of Cody but that additional briefing was necessary to decide the matter.

¶ 16 Campbell never filed a brief or appeared again in court for the divorce and custody proceedings. On January 30, 1998, he picked up Randy and Cody for his scheduled weekend with the boys. Instead of returning the children to Denise by 6:00 p.m. on February 1, he fled with Vickie to Mexico, where he planned to live indefinitely and deprive his wife of custody.

¶ 17 Hours after Campbell was supposed to return the boys, Denise called the police. On February 4, Campbell was charged with two counts of interference with child custody in violation of Wis. Stat. § 948.31(1)(b) (1997-98), and one count of felony bail jumping in violation of Wis. Stat. § 946.49(1)(b) (1997-98). Also on February 4, the circuit court found Campbell in contempt of court for failing to abide by the temporary custody order.

¶ 18 Within days of arriving in Mexico, Campbell was detained. Vickie crossed the border back to El Paso with the boys, and on February 8, 1998, Randy and Cody were reunited with Denise in Texas.

¶ 19 In due course, Campbell was released from Mexican custody, and from February 1998 until January 3, 2001, he evaded the law. He spent time in various states before settling down with Vickie in California.3 In January 2001 he was arrested. In June he was extradited to Wisconsin.

¶ 20 On June 19, 2001, the circuit court held the initial appearance in this case, and Campbell advised the court that he wished to proceed pro se. Concerned with the complexity of the case, Walworth County Circuit Judge James L. Carlson asked Campbell whether he wished assistance from standby counsel. Campbell consented and agreed to reimburse Walworth County for the attorney fees of standby counsel. Thereafter, the circuit court appointed Attorney James Martin as standby counsel.

¶ 21 Campbell's next court appearance, the preliminary hearing, occurred on June 26, 2001. The State called Denise as a witness, and both Campbell and Attorney Martin cross-examined her to try to establish the invalidity of her adoption of Cody. At this time, Circuit Judge Robert J. Kennedy ruled that Campbell could challenge the validity of the adoption at trial but that he would have to introduce independent evidence of the adoption's invalidity.

¶ 22 Following the preliminary hearing, the State filed a motion in limine requesting that Campbell not be allowed to collaterally attack the custody order by challenging the validity of Denise's adoption of Cody. On October 4, 2001, Judge Kennedy granted ...

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1 cases
  • State v. Campbell
    • United States
    • Wisconsin Supreme Court
    • July 12, 2006
    ... 718 N.W.2d 649 ... 2006 WI 99 ... STATE of Wisconsin, Plaintiff-Respondent, ... John W ... before the court on certification by the court of appeals, pursuant to Wis. Stat. § (Rule) 809.61 (2003-04). 1 The appellant, John Campbell ... ...

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