COURT OF APPEALS

DECISION

DATED AND FILED

November 23, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2020AP1214-CR Cir. Ct. No. 2018CF320

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

EMANUAL SANTANA,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for 

Milwaukee County: MARK A. SANDERS and STEPHANIE ROTHSTEIN, 

Judges. Affirmed. 

Before Brash, C.J., Donald, P.J., and Dugan, J.

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 
No. 2020AP1214-CR

2

¶1 PER CURIAM. Emanual Santana appeals from a judgment of 

conviction for one count of first-degree sexual assault and an order denying his 

postconviction motion, without a hearing. On appeal, Santana argues that his trial 

counsel was ineffective for failing to bring a proper motion to dismiss the criminal 

charges filed against him on the basis that the time period alleged in the criminal

complaint was too broad and indefinite to allow Santana to prepare a defense.

Santana also argues that the plain error doctrine requires that the charges against 

him be dismissed. For the reasons set forth below, we affirm.

BACKGROUND

¶2 Santana was charged with three counts of first-degree sexual assault 

of a child on January 24, 2018. The criminal complaint alleged that Santana had 

engaged in sexual intercourse with his niece, Ashley,1 on several occasions 

between July 24, 2010, and July 23, 2011. Count one pertained to assaults that 

occurred on the “short couch” in the living room, while Ashley was watching 

Sesame Street; count two pertained to assaults that occurred when Santana had 

Ashley stand in the middle of the living room; and count three pertained to an 

assault that occurred in the attic, where Ashley slept. Each count alleged that 

Santana had penis-to-anus intercourse with Ashley on the occasions when she was

at the house where Santana lived.

2

 The assaults began when Ashley was eight 

 

1

 We use a pseudonym to refer to the victim in this case for ease of reference and to 

protect the victim’s identity.

2

 The assaults were alleged to have occurred at Ashley’s grandmother’s house. 

However, Santana, who was married to Ashley’s aunt and the sister of Ashley’s father, lived there 

as well. As Ashley’s mother testified at trial, she would drop Ashley off to spend the night, while 

she went to work on the night shift. When Ashley was approximately nine years old, she told her 

mother that she did not feel comfortable staying with “Uncle Emanual” anymore, but did not 

elaborate on why. 
No. 2020AP1214-CR

3

years old and ended when Ashley was nine. She was fifteen years old at the time 

she reported them. 

¶3 Following a jury trial, Santana was convicted of count one related to 

the assaults that were alleged to have occurred on the “short couch” in the living 

room, not guilty on the remaining two counts, and was sentenced to thirty-nine

years of imprisonment.3 

¶4 Santana filed a postconviction motion alleging that his trial counsel 

was ineffective for failing to move to dismiss the criminal complaint on the basis 

that the time period alleged in the criminal complaint was too broad and indefinite 

to allow him to prepare a defense. He also alleged that the deficiencies in the 

criminal complaint must be addressed under the plain error doctrine. As described 

in his motion, his trial counsel had sought to dismiss the criminal charges by way 

of a motion in limine prior to trial, but the trial court denied trial counsel’s motion 

on the basis that trial counsel failed to bring the motion in the proper form and at 

the appropriate time and, alternatively, because the State alleged the dates with as 

much specificity as possible. The postconviction court denied Santana’s motion, 

without a hearing, and Santana appeals. 

DISCUSSION

¶5 “Under the Sixth and Fourteenth Amendments to the United States 

Constitution, a criminal defendant is guaranteed the right to effective assistance of 

 

3

 The Honorable Mark A. Sanders presided over Santana’s trial and sentencing, and 

entered the judgment of conviction. The Honorable Stephanie Rothstein denied Santana’s 

postconviction motion. We refer to Judge Sanders as the trial court and Judge Rothstein as the 

postconviction court.
No. 2020AP1214-CR

4

counsel.” State v. Balliette, 2011 WI 79, ¶21, 336 Wis. 2d 358, 805 N.W.2d 334. 

A defendant must show two elements to establish that his or her counsel’s 

assistance was constitutionally ineffective: (1) counsel’s performance was 

deficient; and (2) the deficient performance resulted in prejudice to the defense. 

Id. “To demonstrate deficient performance, the defendant must show that his

counsel’s representation ‘fell below an objective standard of reasonableness’ 

considering all the circumstances.” State v. Carter, 2010 WI 40, ¶22, 324 Wis. 2d 

640, 782 N.W.2d 695 (citation omitted).

¶6 “An ineffective assistance of counsel claim presents a mixed 

question of fact and law.” State v. Pico, 2018 WI 66, ¶13, 382 Wis. 2d 273, 914 

N.W.2d 95. “We will not reverse the circuit court’s findings of fact unless they 

are clearly erroneous.” Id. “We independently review, as a matter of law, 

whether those facts demonstrate ineffective assistance of counsel.” Id.

¶7 In this case, Santana argues that his trial counsel was ineffective for 

failing to file a proper motion to dismiss the criminal charges filed against him on 

the basis that the time frame alleged in the criminal complaint was too broad and 

indefinite to allow him to prepare a defense. As Santana argues, the charges were 

deficient because they covered a one-year time frame, without more detail on the

exact dates of the assaults, and the charges were filed six years after the assaults 

were alleged to have occurred. Whether the time period alleged in the criminal 

complaint is so broad and indefinite that it violates Santana’s right to present a 

defense is “an issue of constitutional fact which we decide independently of the 

trial court’s determination.” State v. Fawcett, 145 Wis. 2d 244, 249, 426 N.W.2d 

91 (Ct. App. 1988). 
No. 2020AP1214-CR

5

¶8 “A criminal charge must be sufficiently stated to allow the defendant 

to plead and prepare a defense.” Id. at 250. However, “[t]ime is not of the 

essence in sexual assault cases” and “proof of an exact date” is not required such 

that the date of the commission of the crime “need not be precisely alleged.” Id. 

Moreover, in a case involving a child victim, “a more flexible application of notice 

requirements is required and permitted.” Id. at 254. 

¶9 To determine whether the charges are sufficiently stated, we 

examine several of the factors discussed in Fawcett:

(1) the age and intelligence of the victim and other 

witnesses; (2) the surrounding circumstances; (3) the nature 

of the offense, including whether it is likely to occur at a 

specific time or is likely to have been discovered 

immediately; (4) the length of the alleged period of time in 

relation to the number of individual criminal acts alleged; 

(5) the passage of time between the alleged period for the 

crime and the defendant’s arrest; (6) the duration between 

the date of the indictment and the alleged offense; and 

(7) the ability of the victim or complaining witness to 

particularize the date and time of the alleged transaction or 

offense.

Id. at 253. Applying these factors to this case, we conclude that Santana has been 

provided with sufficient notice to satisfy his due process right to plead and prepare 

a defense. Thus, his trial counsel cannot be considered deficient, and thus

ineffective, for failing to bring a meritless motion. See State v. Hurley, 2015 WI 

35, ¶53, 361 Wis. 2d 529, 861 N.W.2d 174. 

¶10 Initially, citing State v. R.A.R., 148 Wis. 2d 408, 435 N.W.2d 315 

(Ct. App. 1988), Santana argues that the first three Fawcett factors do not apply in 

his case because he makes no claim that the State could have obtained a more 

specific time period through greater diligence. However, his argument is not a 

correct statement of the law—we are not prohibited from examining the first three 
No. 2020AP1214-CR

6

Fawcett factors because of how Santana chose to present his argument. See 

State v. Kempainen, 2015 WI 32, ¶¶18, 25-29, 361 Wis. 2d 450, 862 N.W.2d 587 

(overruling that portion of R.A.R. that limited the analysis of the Fawcett factors). 

Accordingly, we decline to limit our analysis to the last four Fawcett factors, and 

we examine each factor in turn. We then conclude that the Fawcett factors 

indicate that the criminal complaint in this case is sufficient.

¶11 Under the first factor, we note that Ashley was eight and nine years 

old at the time of the alleged assaults, and we consider that her young age rendered 

her incapable of reporting the assaults or recalling back to the exact date. “Young 

children cannot be held to an adult’s ability to comprehend and recall dates and 

other specifics.” Fawcett, 145 Wis. 2d at 249. Moreover, due to the nature of 

child sexual assaults that often occur over a period of time and with a pattern of 

conduct, “a singular event or date is not likely to stand out in the child’s mind.” 

Id. at 254. Thus, this factor indicates that the one-year time frame for multiple 

assaults alleged in the criminal complaint is sufficient because “[a]t this young age 

it is highly unlikely that she could particularize the dates or the sequences in which 

the assaults occurred.” See Hurley, 361 Wis. 2d 529, ¶42.

¶12 Turning to the second factor, the surrounding circumstances of being 

assaulted by her uncle while she is left at his house make it especially unlikely that 

Ashley would report the assaults immediately. As has been repeatedly recognized, 

the circumstances of a child being assaulted by a “trusted relative or friend” often 

times “serve[s] to deter a child from coming forth immediately.” Fawcett, 145 

Wis. 2d at 249; see also Kempainen, 361 Wis. 2d 450, ¶33 (addressing sexual 

assaults of a child by her stepfather saying, “A young girl in this situation would 

understandably be reluctant to tell anyone about the assaults at the time they 

occurred[.]”). Santana was a trusted relative in this situation and “held a position 
No. 2020AP1214-CR

7

of authority.” See Kempainen, 361 Wis. 2d 450, ¶33. Therefore, with the

circumstances here involving a young child being assaulted by her uncle at the 

very place and with the very people with whom her mother entrusted her care, it is 

understandable that Ashley did not immediately come forward and was unable to 

provide more exact dates of the assaults at the time she came forward. See 

Hurley, 361 Wis. 2d 529, ¶¶43-46. Thus, this factor indicates that the one-year 

time frame alleged in the complaint is sufficient.

¶13 Under the third factor, we recognize that the nature of this type of 

offense is not likely to be discovered immediately. “Sexual abuse and sexual 

assaults of children are difficult crimes to detect and prosecute. Often there are no 

witnesses except the victim.” Fawcett, 145 Wis. 2d at 249. Here, Santana’s case 

is no different—his young niece was the only witness to the alleged assaults, and 

the discovery of this type of crime depended on her willingness to come forward

and report her uncle. See id. at 254. Thus, the delay in bringing the criminal 

charges, and in turn her ability to recall exact dates, is understandable, and this 

factor also weighs in favor of the complaint being sufficient.

¶14 Considering the fourth factor, the length of time alleged in the 

complaint is one year, and there were multiple alleged acts of assault contained in 

the complaint. “It is [] unlikely that the assaults would have occurred at a specific 

time” and the circumstances of the assaults as part of Ashley’s everyday life “do 

not indicate that they occurred in conjunction with a specific date that would have 

stood out in a child’s mind.” See Kempainen, 361 Wis. 2d 450, ¶33. The assaults 

took place when Ashley was left in the care of family members. There is no 

reason to believe that the assaults would have been connected to anything that 

would have otherwise stood out in Ashley’s mind to be able to provide more 

definite dates. Moreover, time is not a material element for the offenses charged 
No. 2020AP1214-CR

8

in the criminal complaint, and thus, it need not be more precisely alleged than it is. 

See Fawcett, 145 Wis. 2d at 250.

¶15 We next turn to the fifth and sixth factors. As Santana contends, 

there was a significant amount of time that passed from the time of the alleged 

assaults in 2010 and 2011 until the criminal complaint was filed in 2018. 

However, given the nature of this case, i.e., a child sexual assault, a gap between 

the time of the assaults and the time of the filing of the criminal complaint is a 

regular occurrence. Indeed, greater gaps of time have been deemed acceptable due 

to the nature of child sexual assault cases. See Kempainen, 361 Wis. 2d 450, ¶¶5, 

35 (approving gaps of twelve and fifteen years). Thus, “we must consider why the 

delay occurred and how it impacts [Santana]’s ability to prepare his defense.” See 

id., ¶36. However, Santana provides nothing more than “a strictly mechanical and 

mathematical approach” by stating that the complaint alleges a one-year time

frame and was brought six years after the alleged assaults occurred, and he does 

not articulate how his ability to present a defense has been impaired by the delay

or the one-year time frame provided in the complaint. See Hurley, 361 Wis. 2d 

529, ¶¶50-51 (“[A] purely mathematical approach is impracticable when 

determining the overall reasonableness of the charging period.”). Thus, the time

frame alleged in the complaint is sufficient under these two factors.

¶16 Finally, under the seventh factor, we consider the ability of Ashley

to particularize the dates and times of the alleged assaults. Here, she was able to 

allege where she was, what happened immediately prior to the assaults, and the 

order of events during the assaults. For example, she articulated that she was 

watching Sesame Street just prior to the assault that occurred on the “short couch” 

and that Santana told her to bend over, he pulled her pants down instead of taking 

them off, and he bent her over the couch. She also articulated that she was 
No. 2020AP1214-CR

9

sleeping in the attic and Santana woke her up to assault her. The details that she 

was able to provide regarding the specific acts done to her “indicates that [she] 

was able to identify the time of day and the nature of the alleged assaults with 

reasonable certainty.” See Kempainen, 361 Wis. 2d 450, ¶40. This factor, thus, 

indicates that the criminal complaint is sufficient.

CONCLUSION

¶17 We conclude that overall, the Fawcett factors demonstrate that the 

criminal complaint in Santana’s case provided sufficient notice of when the 

alleged crimes occurred, and thus, was sufficient to allow Santana to prepare and 

present a defense. Consequently, trial counsel’s performance cannot be 

considered deficient for failing to bring what would have been a meritless motion, 

and we reject Santana’s argument to the contrary. See State v. Wheat, 2002 WI 

App 153, ¶14, 256 Wis. 2d 270, 647 N.W.2d 441 (“Failure to raise an issue of law 

is not deficient performance if the legal issue is later determined to be without 

merit.”); see also State v. Ziebart, 2003 WI App 258, ¶14, 268 Wis. 2d 468, 673 

N.W.2d 369 (stating that “a claim predicated on a failure to challenge a correct

trial court ruling cannot establish either” deficiency or prejudice). Without being 

able to prove deficient performance on the part of his trial counsel, Santana’s 

claim of ineffective assistance of counsel fails, and the postconviction court did 

not err by denying Santana’s motion. See State v. Johnson, 2004 WI 94, ¶11, 273 

Wis. 2d 626, 681 N.W.2d 901.4 

 

4

 We similarly reject Santana’s argument that the plain error doctrine requires reversal 

because no error, plain or otherwise, occurred, and we do not address Santana’s argument on the 

plain error doctrine further. See State v. Jorgensen, 2008 WI 60, ¶¶20-23, 310 Wis. 2d 138, 754 

N.W.2d 77.
No. 2020AP1214-CR

10

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.