State v. Gudgeon

• Decision Date: 14 June 2006
• Docket Number: No. 2005AP1528.,2005AP1528.
• Citation: 720 N.W.2d 114,2006 WI App 143
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Justin D. GUDGEON, Defendant-Appellant.<SMALL><SUP>†</SUP></SMALL>
• Court: Wisconsin Court of Appeals

720 N.W.2d 114

2006 WI App 143

STATE of Wisconsin, Plaintiff-Respondent, v. Justin D. GUDGEON, Defendant-Appellant.^†

No. 2005AP1528.

Court of Appeals of Wisconsin.

Oral Argument April 13, 2006.

Opinion Filed June 14, 2006.

On behalf of the defendant-appellant, the cause was submitted on the briefs of and oral argument by Jefren E. Olsen, Assistant State Public Defender of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, Attorney General, and James M. Freimuth, Assistant Attorney General. There was oral argument by James M. Freimuth.

Before BROWN, NETTESHEIM and ANDERSON, JJ.

¶ 1 BROWN, J

In this case, the circuit court made known in writing that it wanted Justin D. Gudgeon's probation extended before the extension hearing even took place. Gudgeon claims that the court was therefore biased in favor of a particular result before listening to the evidence. The State counters that Gudgeon's claim is a collateral attack since he never appealed the extension order and did not even appeal a subsequent probation revocation. We agree, but one exception to the prohibition on collateral attack is if the tardy petition was due to newly discovered evidence. This may be the case here, and we remand with directions that the circuit court hear whether the evidence was newly discovered. If the circuit court so holds, then we direct the circuit court to vacate the extension order on grounds of judicial bias and order a new extension hearing. We further offer to our supreme court the thought that judicial bias is the type of structural error that should afford relief by collateral attack in the same manner as claims alleging lack of counsel.

¶ 2 On August 24, 2000, Gudgeon was convicted for operating a vehicle without the owner's consent. This judgment of conviction arose from an incident in which Gudgeon took off with another individual's motorcycle and attempted to flee from police. After Gudgeon abandoned the motorcycle in a ditch, one of the officers in pursuit accidentally ran into it. The bike was destroyed. Accordingly, the judgment of conviction called for restitution of $8425 to the owner as a condition of Gudgeon's probation.

¶ 3 On May 15, 2002, Gudgeon's probation agent sent a letter to the court. The agent noted that Gudgeon's condition time was about to expire and that because of other charges, he was in custody and did not have the option of work release. She indicated that Gudgeon might not be available for supervision if convicted on pending charges from out of state and noted that he still owed $7834.53 in restitution. She proposed the following:

Rather than simply extend Mr. Gudgeon's supervision, I am respectfully asking that the court convert the court obligations to a civil judgement [sic]. Such a judgement [sic] would generate interest for the victim while simply extending supervision would not. In addition, as previously noted, Mr. Gudgeon may not be available to earn money in the community if convicted in Illinois.

In reply, Judge Michael S. Gibbs handwrote at the bottom of the letter, "No—I want his probation extended" and sent copies to the probation agent, the district attorney, and Gudgeon's last attorney of record.¹

¶ 4 An extension hearing took place on August 21. The State pointed out that Gudgeon had outstanding restitution, and the court, Judge Gibbs presiding, asked Gudgeon how much he had paid. Gudgeon could not remember, but his agent stated that he had paid a total of $620, after which the court inquired whether Gudgeon had been working. Gudgeon replied that he had not because he had been in custody. The court responded by asking, "And why is it that you don't think you should have to pay this restitution?" Gudgeon stated that he did think he should have to pay and that he intended to do so but that the amount was "not pocket change." The following colloquy ensued:

THE COURT: All right. That's right. It's not pocket change to the victim either. The only way I can see where we can make sure you are going to pay is to keep the hammer over your head, give you an incentive to pay it; otherwise, I don't believe you will. You said that you want to pay it. You said you intend to pay it. I'm going to make sure you pay it.

Your probation is going to be extended for two years. If you pay that off, you get off supervision. The sooner you pay it off, the sooner you get off probation.

THE DEFENDANT: What happens if I go to jail? Then I get revoked and have to go through the whole process again.

THE COURT: We'll see what happens. That's then. You got to pay your restitution. And you had a six-month stayed sentence, so you did something to get yourself locked up. You could have been working.

THE DEFENDANT: I was working at the time.

THE COURT: You could have been working, but instead you were doing something to get this alternative to revocation as an additional six months or had to do your stayed time. So I don't feel sorry for you. You have to take this real seriously. Get on it and get it done. If you want to get off probation, pay that. I'd do it fast if I were you.

¶ 5 Gudgeon did not appeal the extension. In May 2003, his probation was revoked because of violations, and the court sentenced him. He did not appeal that revocation and sentence either. Instead, he brought a motion for postconviction relief, pursuant to WIS. STAT. § 974.06 (2003-04).² He alleged that his due process rights had been violated during the extension proceedings because the presiding judge was not a neutral magistrate. Gudgeon read the court's handwritten notation on the letter from his probation agent as prejudging his case with respect to whether to extend probation. He also viewed some of the court's language at the hearing as evidence that the court was actually influenced by this bias. The postconviction court denied relief, and Gudgeon appeals.

¶ 6 We first determine whether we can even reach the merits of Gudgeon's challenge. As the State points out, Gudgeon never appealed from the extension order. We recognize that courts generally disfavor collateral challenges because they disrupt the finality of prior judgments and thereby "`tend to undermine confidence in the integrity of our procedures' and inevitably delay and impair the orderly administration of justice." See Custis v. United States, 511 U.S. 485, 497, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994) (citation omitted) (refusing to allow collateral attack on a conviction at a sentence enhancement proceeding); State v. Hahn, 2000 WI 118, ¶¶ 26-28, 238 Wis.2d 889, 618 N.W.2d 528 (following Custis), modified on other grounds, 2001 WI 6, 241 Wis.2d 85, 621 N.W.2d 902; Boots v. Boots, 73 Wis.2d 207, 216, 243 N.W.2d 225 (1976) (general rule precludes attacking a judgment in a collateral proceeding unless judgment was procured by fraud). Moreover, this disruption occurs in independent proceedings intended for different purposes. Custis, 511 U.S. at 497, 114 S.Ct. 1732; Hahn, 238 Wis.2d 889, ¶¶ 26-27, 618 N.W.2d 528.

¶ 7 Despite this general bar on collateral attacks, the law does recognize exceptions. In Hahn, our supreme court followed the United States Supreme Court's holding in Custis, which established that the federal constitution does not require the courts to permit collateral attacks on a judgment of conviction used for sentence enhancement purposes unless the defendant's challenge is based on a lack of counsel in the prior proceeding. See Custis, 511 U.S. at 496, 114 S.Ct. 1732; Hahn, 238 Wis.2d 889, ¶¶ 23-29, 618 N.W.2d 528. Custis observed that a court's failure to appoint counsel for an indigent defendant was a "unique constitutional defect," Custis, 511 U.S. at 496, 114 S.Ct. 1732, reasoning that "[t]he right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel," id. at 494-95, 114 S.Ct. 1732 (alteration in original; citation omitted). In limiting collateral attacks to those challenges raising the right to appointed counsel, Custis and Hahn invoked the policy of finality discussed above. See Custis, 511 U.S. at 497, 114 S.Ct. 1732; Hahn, 238 Wis.2d 889, ¶¶ 26-27, 618 N.W.2d 528. They also invoked administrative concerns relating to fact finding, noting that resolving many constitutional challenges would require the court in a pending proceeding to rely on records from other courts, which the court may not have. See Custis, 511 U.S. at 496, 114 S.Ct. 1732; Hahn, 238 Wis.2d 889, ¶¶ 24-25, 618 N.W.2d 528. Presumably, figuring out whether an individual was represented by counsel in a prior proceeding would not require extensive fact finding.

¶ 8 We cannot use Hahn to decide whether to absolve Gudgeon of his collateral attack problem for the simple reason that we are an error-correcting court and it is for our supreme court, as our judicial administration policymaking body, to make that decision. See Cook v. Cook, 208 Wis.2d 166, 188-89, 560 N.W.2d 246 (1997). Nonetheless, in the following paragraphs, we will explain why we believe it would be a wise decision for the supreme court to expand Hahn to the situation at bar.³

¶ 9 We are persuaded that the deprivation of an impartial and unbiased tribunal warrants an exception to the general prohibition of collateral attacks just as does the situation where a person allegedly was not afforded counsel. First, we examine what makes the deprivation of a right to counsel "unique." Although Custis never used the term, we note that the Court has recognized the total deprivation of counsel as a "structural error." See Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). A "structural error" is one so fundamental that the courts consider it per se prejudicial and do not apply a harmless error analysis. Id. They differ in magnitude from other constitutional errors because they are "defect[s] affecting the framework within which the trial proceeds, rather than...