State v. Silva

• Decision Date: 05 August 2003
• Docket Number: No. 02-1502-CR, No. 02-2050-CR.
• Citation: 670 N.W.2d 385,266 Wis.2d 906,2003 WI App 191
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. William A. SILVA, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

266 Wis.2d 906

2003 WI App 191

670 N.W.2d 385

STATE of Wisconsin, Plaintiff-Respondent, v. William A. SILVA, Defendant-Appellant.¹

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

Court of Appeals of Wisconsin.

Submitted on briefs March 4, 2003.

Decided August 5, 2003.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Martin E. Kohler and Brian Kinstler of Kohler & Hart, LLP, of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, Attorney General, and Gregory M. Weber, assistant attorney general.

Before Fine, Schudson and Curley, JJ.

¶ 1. CURLEY, J.

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

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

I. BACKGROUND.

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

¶ 4. After the State filed its motion in limine, but before the trial court ruled on the "other acts" evidence, Silva waived his right to a jury trial on the advice of his trial attorney. At the Machner hearing, the trial attorney admitted that when he advised Silva to waive his jury, he was unaware of the possibility of entering a Wallerman stipulation, which might have prevented the State from admitting the "other acts" evidence to show intent.³

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

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

¶ 7. At the conclusion of the trial, Silva's attorney gave a brief closing argument. During the closing argument, Silva's attorney admitted that the victim was "being truthful, to some extent," and that Silva had "technically" committed the crime. Silva was found guilty. At the urging of the State, the trial court proclaimed that it had not relied on the WIS. STAT. § 904.04(2) "other acts" evidence in reaching its verdict. Silva was sentenced to twenty-five years of confinement and twenty years of extended supervision; however, the trial court failed to give the advisories mandated by the new truth-in-sentencing law.⁴ ¶ 8. Silva filed a postconviction motion and, as noted, the trial court held a Machner hearing. The postconviction court determined that Silva decided to waive his right to a jury before the State filed its motion seeking the admission of "other acts" evidence, even though the State's motion was filed on August 2, 2000, and Silva did not actually sign the jury waiver until August 23, 2000. The postconviction court also determined that while his attorney's performance was deficient for his lack of knowledge of the Wallerman holding, Silva suffered no prejudice since the trial court found him guilty without considering the "other acts" evidence. Additionally, the postconviction court found that Silva's attorney did object to the admission of the "other acts" evidence and that his attorney's closing argument, concentrating on the de minimis nature of the offense, constituted an appropriate strategy. Finally, the postconviction court provided Silva with the missing truth-in-sentencing mandates.

II. ANALYSIS.

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

[1, 2]

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

[3-7]

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

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

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

[A] Wallerman stipulation in a child sexual assault case

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