State v. Love

• Citation: 227 Wis.2d 60,594 N.W.2d 806
• Decision Date: 23 June 1999
• Docket Number: No. 97-2336-CR,97-2336-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Michael LOVE, Defendant-Appellant.
• Court: United States State Supreme Court of Wisconsin

Page 806

594 N.W.2d 806

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Michael LOVE, Defendant-Appellant.

No. 97-2336-CR.

Supreme Court of Wisconsin.

Argued Feb. 23, 1999.

Decided June 23, 1999.

For the plaintiff-respondent-petitioner the cause was argued by Maureen McGlynn Flanagan, assistant attorney general with whom on the brief was James E. Doyle, attorney general.

For the defendant-appellant there was a brief and oral argument by Philip J. Brehm, Janesville.

¶1 DAVID T. PROSSER, J

The State of Wisconsin (State) seeks review of a published decision of the court of appeals reversing a judgment of the Rock County Circuit Court, Edwin C. Dahlberg, Judge. ¹ In 1994, the defendant, Michael Love (Love), was convicted of burglary. The court withheld sentence and placed him on three years of probation. In 1995, Love was charged with new offenses leading to the revocation of his probation. When he was returned to court for sentencing on the original conviction, he was represented by a public defender who, while working as an assistant district attorney 20 months earlier, had represented the State at Love's original sentencing. The circuit court sentenced Love to ten years in prison.

¶2 Love filed a motion for post-conviction relief, claiming he was denied the effective assistance of counsel at the second sentencing because his defense attorney had previously represented the State in the same case. The circuit court denied the motion, finding that Love's attorney had done nothing improper. The court of appeals reversed, holding that the potential conflict of interest that exists when an attorney switches sides during a case requires resentencing without the defendant having to demonstrate either an actual conflict or prejudice. State v. Love, 218 Wis.2d 1, 11, 579 N.W.2d 277 (Ct.App.1998).

¶3 The issue presented is whether a defendant, who is represented at a sentencing hearing by an attorney previously involved in the prosecution of the same case, may raise a successful ineffective assistance of counsel claim in a post-conviction motion based on an alleged conflict of interest without any showing of actual conflict or prejudice. Because we believe this case is governed by the principles set out in Cuyler v. Sullivan, 446 U.S. 335, 346, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), and State v. Kaye, 106 Wis.2d 1, 8-16, 315 N.W.2d 337 (1982), we reverse the decision of the court of appeals.

FACTS

¶4 The central facts of this case are not in dispute. In January of 1994, Michael Love was charged with one count of burglary and one count of misdemeanor theft. In September of 1994, a plea agreement was negotiated by Love's public defender, Jane Wagner, and Rock County Assistant District Attorney Gerald Urbik. Under the terms of the agreement, Love pled guilty to the burglary charge, the theft charge was dismissed, and the attorneys agreed jointly to recommend that Love be placed on three years of probation. Despite a presentence report which recommended that Love receive a five-year sentence to the Intensive Sanctions Program, the court accepted the attorneys' joint recommendation, withheld sentence, and placed Love on probation for three years.

¶5 From January 1994 to December 1994, several Rock County assistant district attorneys participated in the court ¶6 In 1995, while still on probation for the burglary conviction, Love was arrested for new charges of armed burglary and armed sexual assault. Because Love's sentence on the burglary conviction had been withheld, the new charges led to the revocation of his probation and then his reappearance before Judge Edwin C. Dahlberg, the original sentencing court. Ironically, Lisowski, who had left the district attorney's office in March of 1995 to become an assistant public defender, was appointed to represent Love. At the second sentencing hearing, Love's probation agent and the assistant district attorney recommended a prison sentence of ten years. Lisowski urged the court to disregard the pending charges and impose a sentence of only five years. Based on Love's extensive criminal record, ² the circuit court imposed the maximum sentence of ten years in prison, noting that Love had been given a break when he was originally given probation.

proceedings involving Love's case. Brenna Lisowski (Lisowski), an assistant district attorney in the Rock County District Attorney's Office from June 1990 until March 1995, represented the State in two of these proceedings, after Love's guilty plea. On November 1, 1994, Lisowski made a brief appearance at a continuance hearing to allow a presentence report to be completed. On December 13, 1994, Lisowski appeared at the defendant's sentencing hearing and argued to implement the plea agreement. She said on the record at the time that she "was handed the file by the secretary about 15 minutes ago...."

PROCEDURAL HISTORY

¶7 Claiming ineffective assistance of counsel, Love later filed a motion for post-conviction relief requesting re-sentencing in the circuit court. Although he had never raised the issue at the time of his sentencing, Love now claimed he was denied the effective assistance of counsel because his defense attorney, Lisowski, had represented the State at his first sentencing hearing and then switched sides at his second sentencing hearing on the same charge. This, he claimed, was a violation of Supreme Court Rule 20:1.9.

¶8 The court held a post-conviction hearing on July 19, 1997. Lisowski testified that she had no independent recollection of ever having appeared on behalf of the State at the defendant's original sentencing in December of 1994. With the observation that several assistant district attorneys had appeared on behalf of the State at the various proceedings in the case, ³ the court accepted as true Lisowski's testimony that she did not recall her appearances on behalf of the State. The court concluded that Lisowski had done nothing improper and that there was no reason for resentencing.

¶9 The court of appeals reversed and remanded in a published decision filed March 19, 1998. Love, 218 Wis.2d 1, 579 N.W.2d 277. The court acknowledged that both federal and state courts have required that a defendant asserting a Sixth Amendment conflict of interest claim from multiple representation who did not raise the issue in a timely manner must prove that both an actual conflict of interest existed and that the attorney's performance was adversely affected by the conflict. Id. ¶10 However, the court distinguished Cuyler, Kaye, and their progeny as cases which involved simultaneous or earlier representation of a person related to the crimes with which the respective defendants were charged--i.e., a co-defendant, a witness, or an investigator--whereas the present case involved an attorney who had switched sides from prosecution to defense in the same case. See Love, 218 Wis.2d at 5, 579 N.W.2d 277. The court of appeals relied on cases from other jurisdictions which adopted a per se conflict of interest rule when an attorney switches sides in a case. People v. Kester, 66 Ill.2d 162, 5 Ill.Dec. 246, 361 N.E.2d 569, 571-72 (1977); State v. Sparkman, 443 So.2d 700 (La.Ct.App.1983); Skelton v. State, 672 P.2d 671 (Okla.Crim.App.1983). The court fashioned a "bright line rule" for these limited circumstances, stating that when a defense attorney has appeared for and represented the State as a prosecutor in prior proceedings in the same case in which he or she is now representing the defendant, a conflict of interest exists which warrants reversal--even in the absence of actual conflict or prejudice to the defendant. Love, 218 Wis.2d at 11, 579 N.W.2d 277.

at 4-5, 579 N.W.2d 277 (citing Cuyler, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333; Kaye, 106 Wis.2d 1, 315 N.W.2d 337; State v. Street, 202 Wis.2d 533, 551 N.W.2d 830 (Ct.App.1996); State v. Foster, 152 Wis.2d 386, 448 N.W.2d 298 (Ct.App.1989)).

¶11 Perceiving this case to be an important matter of first impression in Wisconsin, we accepted review.

STANDARD OF REVIEW

¶12 We begin by looking to the standards of review. On a claim of ineffective assistance of counsel, "An appellate court will not overturn a trial court's findings of fact concerning the circumstances of the case and the counsel's conduct and strategy unless the findings are clearly erroneous." State v. Knight, 168 Wis.2d 509, 514 n. 2, 484 N.W.2d 540 (1992). "However, whether counsel's performance was deficient and whether the deficient performance prejudiced the defense are questions of law which this court decides without deference to the court of appeals or the circuit court." State v. Sanchez, 201 Wis.2d 219, 236-37, 548 N.W.2d 69 (1996). When the pertinent facts are not in dispute, whether the facts establish a constitutional violation is a question of law which an appellate court reviews de novo. State v. Cobbs, 221 Wis.2d 101, 105, 584 N.W.2d 709 (1998); Street, 202 Wis.2d at 543, 551 N.W.2d 830.

ANALYSIS

¶13 In criminal cases, conflict of interest claims involving attorneys are treated analytically as a subspecies of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 691-92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶14 In Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), the United States Supreme Court set the current standard for analyzing ineffective assistance of counsel claims based on an attorney's potential conflict of interest. Cuyler involved two attorneys' multiple representation of three defendants charged with murder. In three separate trials, Sullivan was convicted, while his co-defendants were acquitted. Id. at 338, 100 S.Ct. 1708. After his conviction, Sullivan alleged that he was denied the effective assistance of counsel because his attorneys represented conflicting interests. Id. The Court held that "the possibility of conflict is insufficient to impugn a criminal conviction. In order to demonstrate a violation of his ...