COURT OF APPEALS

DECISION

DATED AND FILED

January 12, 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. 2020AP322-CR Cir. Ct. No. 2017CF327

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

SERGHEI KUNDILOVSKI,

 DEFENDANT-APPELLANT.

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

County: JAMES M. PETERSON, Judge. Affirmed. 

Before Stark, P.J., Hruz and Seidl, JJ.

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). 

¶1 PER CURIAM. Serghei Kundilovski appeals a judgment convicting 

him of three counts of homicide by intoxicated use of a vehicle while having a prior 
No. 2020AP322-CR

2

intoxicant-related conviction or revocation, contrary to WIS. STAT. § 940.09(1)(a) 

and (1c)(b) (2017-18). He also appeals an order denying his postconviction motion 

to withdraw his guilty pleas.

¶2 Kundilovski argues his pleas were not knowing, intelligent, and 

voluntary based on a combination of three factors: (1) his “substantial 

comprehension issues” due to a traumatic brain injury (TBI); (2) his trial attorney’s 

failure to use an interpreter when discussing the plea agreement with Kundilovski 

outside of court; and (3) his trial attorney’s “misleading” advice that Kundilovski 

was likely to receive aggregate sentences totaling only three to seven years, despite 

the fact that the maximum sentences for the offenses to which Kundilovski pled 

totaled 120 years. In the alternative, Kundilovski argues he is entitled to plea 

withdrawal because his trial attorney was ineffective by failing to use an interpreter 

when meeting with Kundilovski outside of court, by failing to “retain an expert to 

establish ... Kundilovski’s language limitations,” and by incorrectly advising 

Kundilovski regarding the likely length of his sentences. We reject these arguments 

and affirm.

BACKGROUND

¶3 In July 2017, Kundilovski drove his car in the wrong direction on 

Interstate 94 in Dunn County. He collided nearly head-on with an oncoming 

vehicle, killing all three of its occupants. Kundilovski spent approximately one 

month in the hospital following the crash. His injuries included two brain 

hemorrhages, which constituted a TBI.

¶4 As a result of the accident, the State charged Kundilovski with nine 

counts, three related to each victim: three counts of first-degree reckless homicide; 

three counts of operating a motor vehicle while revoked, causing the death of 
No. 2020AP322-CR

3

another; and three counts of homicide by intoxicated use of a vehicle while having 

a prior intoxicant-related conviction or revocation. Kundilovski was born in 

Moldova but has been in the United States since approximately 2010. He is fluent 

in Russian but has limited English proficiency. An interpreter was therefore used 

during all court proceedings at which Kundilovski was present. However, 

Kundilovski’s trial attorney, Scott Schlough, did not use an interpreter when 

meeting with Kundilovski outside of court.

¶5 Approximately four and one-half months after the accident, 

Kundilovski entered guilty pleas to the three homicide by intoxicated use of a 

vehicle counts pursuant to a plea agreement. In exchange for Kundilovski’s pleas, 

the State agreed to recommend that the remaining six charges and a traffic case be 

dismissed and read in for purposes of sentencing and restitution. The parties further 

agreed that a presentence investigation report (PSI) would be prepared and that both 

sides would be free to argue at sentencing.

¶6 As with all other court proceedings at which Kundilovski was present,

an interpreter was used during the plea hearing. At the beginning of the hearing, 

Kundilovski confirmed that he understood the interpreter. The circuit court then 

conducted a plea colloquy, during which it confirmed that Kundilovski understood 

the elements of the crimes to which he was pleading guilty. The court also explained 

that the maximum penalty for each of the three charges was a forty-year sentence or 

a $100,000 fine, or both. Kundilovski responded that he understood the maximum 

penalties. The court further explained that the sentences could be imposed 

consecutively, and Kundilovski stated that he understood.

¶7 Kundilovski confirmed that he had enough time to speak to Schlough

about his pleas and ask any questions that he wanted to ask. He also confirmed that 
No. 2020AP322-CR

4

he had reviewed the plea questionnaire and waiver of rights form with Schlough and 

had signed that form. The form lists the maximum penalty for the offenses as 

“$100,000 or 40 years imprisonment or both x 3 = $300,000 or 120 years 

imprisonment or both (maximum term of confinement of 75 total years).” The form 

also states, “I understand that the judge is not bound by any plea agreement or 

recommendations and may impose the maximum penalty.” By signing the form, 

Kundilovski confirmed that he had read it, understood its contents, had reviewed it 

with Schlough, and had answered its questions truthfully.

¶8 The circuit court inquired during the plea colloquy about 

Kundilovski’s ability to understand English, and Kundilovski responded that his 

understanding was “very limited.” He stated, however, that he had been employed 

as a truck driver in the United States and was therefore able to follow road signs. 

The court then acknowledged the interpreter’s presence and inquired whether there 

was “anything so far that has been said that you do not understand.” Kundilovski 

responded, “No, I understand everything.”

¶9 The circuit court later stated:

And do you understand that the Court is not bound by any 

recommendations? The only bounds the Court has are the 

maximum possible penalties that we spoke about. The Court 

can’t go beyond that. But my understanding is that your

agreement is both parties would be free to argue what the 

sentence may be. Do you understand that?

Kundilovski responded, “Yes.” The court then accepted Kundilovski’s pleas and 

found him guilty.

¶10 At Kundilovski’s sentencing hearing, the State asked the circuit court 

to impose consecutive sentences totaling seventy-five years’ initial confinement and 

fifteen years’ extended supervision. Schlough did not make a specific sentence
No. 2020AP322-CR

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recommendation, although he argued the court should not impose the maximum 

penalties. The court ultimately imposed consecutive sentences totaling seventy-five 

years’ initial confinement and thirty years’ extended supervision.

¶11 Kundilovski subsequently filed a postconviction motion to withdraw 

his guilty pleas. He argued his pleas were not knowing, intelligent, and voluntary 

based on his language comprehension issues, Schlough’s failure to use an interpreter 

during their out-of-court discussions about the plea agreement, and Schlough’s 

advice that Kundilovski would likely receive aggregate sentences of three to seven 

years if he pled guilty. Based on those factors, Kundilovski asserted he “understood 

and believed that by pleading guilty, he was guaranteed a 3-7 year sentence.” 

Kundilovski also argued Schlough was ineffective “by not using an interpreter to 

ensure that ... Kundilovski understood basic legal concepts and by failing to retain 

an expert to establish ... Kundilovski’s language limitations.”

¶12 In support of his motion, Kundilovski attached a report authored by 

psychologist Brenda Leske regarding his “ability to understand language, both 

auditory-receptive language and written information.” Leske had evaluated 

Kundilovski in June and July 2019, over one and one-half years after he entered his 

pleas.

¶13 The circuit court held a hearing on Kundilovski’s postconviction 

motion. At the hearing, Leske explained that the main areas of language she 

assessed during her evaluation of Kundilovski were comprehension, naming, and 

recognition. She summarized her findings as follows:

Mr. Kundilovski is struggling substantially with ... regard to 

his language functioning. He has demonstrated substantial 

difficulty processing meaningful language; even language

presented both in English and in Russian. The results 

indicate that his underlying reasoning capacity appears to be 
No. 2020AP322-CR

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intact but he—you know, [the interpreter] and I really tried 

to do our best to do what we could to support the process for 

him but he ... did have ... substantially weak vocabulary; 

substantially weak long-term memory; substantially weak 

comprehension.

His comprehension was like the first to the ninth percentile 

for the impaired borderline-impaired range. He had 

word-finding difficulties. His naming was at the fifth 

percentile. His, you know, language comprehension, 

processing, naming, and memory were all problematic. He 

was, however, able to repeat back very well, you know, at 

the sixty-fourth percentile. So it may look at times as though 

he’s very well able to understand when in fact he’s not 

because he—and he may himself think because he can repeat 

the words back to you that he understands but there’s no 

understanding needed simply to pair back someone’s words. 

So that’s a concern.

¶14 Leske testified Kundilovski’s language comprehension skills were 

“poor” in both English and Russian. She also testified that the brain hemorrhages 

Kundilovski had experienced as a result of the accident constituted a TBI, which

could affect his memory and language comprehension. She opined that 

Kundilovski’s TBI could have adversely affected his ability to understand his legal 

proceedings. She further opined that because of his TBI, Kundilovski would “need 

extra help to understand things” that a person without a TBI would not need.

¶15 Schlough testified at the postconviction hearing that he had discussed 

the plea agreement with Kundilovski outside of court on at least three occasions. 

No interpreter was used during those discussions, and Schlough testified he did not 

consider asking for an interpreter. He explained that he and Kundilovski used a 

speech-to-text translation program to communicate “a couple times,” and “that 

seemed to work for the most part.” In fact, Schlough testified he used that program 

to make a sentence-by-sentence translation of the plea questionnaire into Russian,

and Kundilovski “actually made corrections as we were going through saying, this 

doesn’t seem to say the same thing.”
No. 2020AP322-CR

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¶16 Schlough also testified that when he had concerns about whether 

Kundilovski understood a concept during their discussions of the plea agreement, 

he would attempt to explain that concept “in smaller words; less complicated terms”

until it appeared that Kundilovski understood. He explained:

Often we would go back and forth in that discussion. Here’s 

a statement. He would say, I don’t know. I would say some 

clarification of it. And then he would say, is that like this 

or—and we would keep working that way until I thought we 

had an understanding for the most part.

¶17 For instance, Schlough testified that he initially had concerns about 

whether Kundilovski understood the distinction between concurrent and 

consecutive sentences. Schlough therefore “broke it down to mean that it would be 

one sentence served and then you would start your next one ... and he seemed to 

understand that concept that it was one after another.” Schlough acknowledged, 

however, that he had told Kundilovski’s postconviction attorney he was not “one 

hundred percent sure whether ... Kundilovski understood what consecutive 

sentencing meant.”

¶18 Schlough also testified that he was initially concerned about 

Kundilovski’s understanding of the concept of judicial sentencing discretion. He 

testified that at first, Kundilovski appeared to believe that after the parties made 

their sentencing recommendations, the circuit court would be required to adopt one 

of those recommendations, rather than “craft[ing] whatever sentence the judge 

deemed appropriate.” Schlough testified he discussed the concept of judicial 

sentencing discretion with Kundilovski “a couple of times,” and he believed they 

had “cleared ... up” Kundilovski’s misunderstanding. He conceded, however, that 

he could not “say for sure [whether Kundilovski understood] because I’m not ... 
No. 2020AP322-CR

8

Kundilovski.” He further conceded that he never considered hiring an expert to 

evaluate Kundilovski’s language comprehension.

¶19 Schlough also testified that he told Kundilovski he would likely 

receive aggregate sentences totaling only three to seven years. Schlough explained 

that estimate was based on a conversation he had with an individual who wrote 

private PSIs and had previously prepared PSIs for the Department of Corrections

(DOC). Although Schlough told Kundilovski he believed the court would likely 

impose aggregate sentences totaling three to seven years, he testified Kundilovski 

never indicated that he believed the court could not impose sentences exceeding that 

length.

¶20 Kundilovski also testified at the postconviction hearing. He stated he 

did not tell Schlough that he wanted an interpreter during their out-of-court 

discussions because he did not think an interpreter “could help [him] in any way.” 

He testified that Schlough told him he would receive sentences totaling three, five, 

or seven years if he took the plea agreement, and that was one reason he took the 

deal. He asserted Schlough told him that without the plea agreement, “it would be 

forty” years. Kundilovski conceded, however, that Schlough also informed him that 

“the judge could pick whatever sentence he wanted to pick no matter what the plea 

deal was.”

¶21 Kundilovski also conceded that the circuit court told him during the 

plea hearing that it was not bound by any sentence recommendations and could 

impose the maximum penalties. Kundilovski acknowledged telling the court that 

he understood those concepts. Nevertheless, Kundilovski testified he still believed 

the court could not impose sentences exceeding seven years “because the plea 

agreement was that.” He also testified that he believed he had to answer “yes” to 
No. 2020AP322-CR

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all of the court’s questions during the plea colloquy, but he did not elaborate as to 

the basis for that belief. Finally, Kundilovski testified that he would not have 

entered his pleas had he known the court could impose the maximum sentences, and 

he would have instead gone to trial.

¶22 The State presented the testimony of two law enforcement officers at 

the postconviction hearing. First, state trooper Kyle DeVries testified that he had 

interviewed Kundilovski at the hospital several days after the accident using a 

Russian interpreter. That interview was video recorded, and the recording was 

played for the court during the postconviction hearing. DeVries testified that 

Kundilovski was able to answer some of his questions during the interview in 

English, without waiting for them to be translated into Russian.

¶23 Second, sergeant Douglas Ormson of the Dunn County Sheriff’s 

Office testified that Kundilovski communicated with him and with other jail staff in 

English without using an interpreter. Ormson also testified that on one occasion, 

Kundilovski asked whether Ormson “knew of anybody else that could play chess 

because he couldn’t find anybody that he could play with decently, and then he made 

a joke he was going to have to play with staff.” Kundilovski denied making that

statement and testified he had first learned how to play chess while in jail.

¶24 The circuit court made several findings of fact at the close of the 

postconviction hearing. First, the court found the testimony of Schlough, DeVries, 

and Ormson to be credible. While the court acknowledged Leske’s testimony 

regarding Kundilovski’s language comprehension difficulties, it noted Leske “was 

not here at the time of the plea.” The court stated, “[T]here’s a transcript [of the 

plea hearing], so the record is what it is as it relates to the plea when the Court made 
No. 2020AP322-CR

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findings that ... Kundilovski knowingly, voluntarily, and intelligently entered his 

plea.”

¶25 The circuit court next stated that it found Kundilovski’s testimony 

during the postconviction hearing “to be somewhat incredible,” and the court 

believed that even though Kundilovski had a “limited understanding of English, he 

was able to understand quite a bit.” The court observed that Kundilovski had been 

in the United States “for several years” and had “worked as a commercial truck 

driver.” The court also observed that the video of DeVries’ interview with 

Kundilovski showed Kundilovski “talking and understanding some basic stuff 

certainly that the trooper was talking with him about.” The court further noted that 

the jail staff “were in a position to be able to observe” Kundilovski, and he “was 

able to function in the jail without an interpreter.”

¶26 The circuit court also found that Schlough spoke to Kundilovski about 

the plea agreement on multiple occasions, and from Schlough’s perspective, “it 

appeared that his client understood these concepts.” In addition, the court discussed 

its own impression of Kundilovski’s understanding of the concepts discussed during 

the plea hearing, stating:

[W]hat I recall observing him, his responses were 

appropriate; he understood what he was being asked. And if 

he carried with him some belief that, you know, his attorney

... told him, you know, I think it might be in this range, he 

clearly was told that the Court was not bound by a 

recommendation and he was told what the maximum 

possible penalties were. And, again, these concepts were 

explained to him by ... Schlough on a number of occasions.

¶27 The circuit court therefore stated it was “not satisfied or convinced ... 

that ... Kundilovski did not understand or know what he was doing when he entered 

the plea.” Accordingly, the court saw “no reason” to disturb its determination 
No. 2020AP322-CR

11

during the plea hearing that Kundilovski’s pleas were knowing, intelligent, and 

voluntary. The court reiterated: “[F]rom the Court’s perspective it appeared that he 

understood; he said he understood; he gave ... appropriate answers to the questions 

the Court had. It was, in the Court’s opinion, not extremely complicated.” The 

court therefore concluded Kundilovski had failed to demonstrate the existence of a 

manifest injustice requiring plea withdrawal.

¶28 Turning to Kundilovski’s ineffective assistance claim, the circuit 

court concluded Schlough’s representation was neither deficient nor prejudicial. 

The court noted that Schlough had “spent quite a bit of time with [Kundilovski] 

explaining things,” including the maximum penalties, which the court had also 

explained during the plea hearing. The court also stated that Schlough was not 

ineffective merely because his estimate regarding the length of Kundilovski’s

sentences turned out to be incorrect. The court further stated the plea agreement 

was straightforward, in that both parties were free to argue at sentencing, and the 

State had not agreed to recommend any specific sentence. The court therefore 

denied Kundilovski’s postconviction motion for plea withdrawal, and this appeal 

follows.

DISCUSSION

I. Knowing, intelligent, and voluntary pleas

¶29 When a defendant seeks to withdraw a guilty plea after sentencing, he 

or she must prove, by clear and convincing evidence, that a refusal to allow plea 

withdrawal would result in manifest injustice. State v. Cajujuan Pegeese, 2019 WI 

60, ¶15, 387 Wis. 2d 119, 928 N.W.2d 590. “A manifest injustice occurs when there 

has been ‘a serious flaw in the fundamental integrity of the plea.’” State v. Cross, 

2010 WI 70, ¶42, 326 Wis. 2d 492, 786 N.W.2d 64 (citation omitted). A defendant 
No. 2020AP322-CR

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may establish a manifest injustice by proving that his or her plea was not entered 

knowingly, intelligently, and voluntarily. Cajujuan Pegeese, 387 Wis. 2d 119, ¶15.

¶30 Whether a plea was entered knowingly, intelligently, and voluntarily 

is a question of constitutional fact that we review independently. Id., ¶16. In 

making that determination, however, we accept the circuit court’s findings of 

historical or evidentiary fact unless they are clearly erroneous. Id.

¶31 As noted above, in this case, Kundilovski argues his pleas were not 

knowing, intelligent, and voluntary due to a combination of three factors: (1) his 

language comprehension difficulties; (2) the lack of an interpreter during his 

out-of-court discussions with Schlough; and (3) Schlough’s “misleading” advice 

that Kundilovski was likely to receive aggregate sentences totaling only three to 

seven years. Based on these factors, Kundilovski asserts he did not understand the 

maximum penalties he faced or the fact that the circuit court was not bound by the 

parties’ sentence recommendations, and he instead believed the court would be 

limited to imposing sentences totaling only three to seven years.

¶32 The circuit court’s findings of fact defeat Kundilovski’s claim that his 

pleas were not knowing, intelligent, and voluntary. Notably, Kundilovski does not 

argue that any of the court’s findings are clearly erroneous. In particular, he does 

not challenge any of the court’s credibility findings. When the circuit court acts as 

the finder of fact, it is the ultimate arbiter of the witnesses’ credibility and of the 

weight to be given to their testimony. State v. Peppertree Resort Villas, Inc., 2002 

WI App 207, ¶19, 257 Wis. 2d 421, 651 N.W.2d 345.

¶33 The circuit court rejected Kundilovski’s claim that his language 

comprehension difficulties prevented him from validly entering his pleas. Although 

Kundilovski testified he did not understand that the court could impose sentences 
No. 2020AP322-CR

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exceeding seven years, the court rejected his testimony as incredible. Based on its 

own observations of Kundilovski during the plea hearing, the court found that 

Kundilovski understood the information the court had provided during the plea 

hearing, which included the maximum possible penalties and an admonition that the 

court was not bound by the parties’ sentencing recommendations. We will not 

disturb the court’s finding regarding Kundilovski’s credibility, as the court had the 

opportunity to observe Kundilovski’s demeanor during both the plea and 

postconviction hearings. See State v. Triplett, 2005 WI App 255, ¶9, 288 Wis. 2d 

515, 707 N.W.2d 881.

¶34 The circuit court acknowledged Leske’s testimony regarding

Kundilovski’s poor language comprehension. The court gave that testimony little 

weight, however, because Leske was not present during the plea hearing. The court 

instead relied on its own observations of Kundilovski’s conduct during that hearing. 

A fact finder is not required to accept an expert witness’s opinion, even if it is 

uncontradicted. See State v. Fleming, 181 Wis. 2d 546, 561, 510 N.W.2d 837 

(Ct. App. 1993). Further, Leske testified that Kundilovski’s impairments meant that 

he needed extra help to understand things. However, the court found credible 

Schlough’s testimony that he took extra time to explain the plea agreement and 

questionnaire to Kundilovski.

¶35 Other evidence in the record further supports the circuit court’s 

finding that Kundilovski’s language comprehension was not so limited as to prevent 

him from knowingly, intelligently, and voluntarily entering his pleas. See State v. 

Young, 2009 WI App 22, ¶17, 316 Wis. 2d 114, 762 N.W.2d 736 (2008) (stating 

we search the record for evidence that supports the circuit court’s factual findings). 

The court found Ormson’s testimony credible. Ormson testified that Kundilovski 

made a comment while in jail about not being able to find a decent chess opponent.
No. 2020AP322-CR

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That testimony suggests Kundilovski’s mental faculties were not significantly 

impaired after the accident. In addition, Kundilovski himself testified that he 

learned to play chess while in jail, which further suggests that his mental functioning 

was sufficient to allow him to knowingly, intelligently, and voluntarily enter his 

guilty pleas.

¶36 The circuit court also rejected the evidence Kundilovski presented to

support his claim that his pleas were not knowing, intelligent, and voluntary due to 

the lack of an interpreter during his out-of-court meetings with Schlough. Instead, 

the court expressly found Schlough’s testimony credible. Schlough testified that 

although Kundilovski initially struggled to understand certain legal concepts, 

Schlough was ultimately able to explain those concepts in a way that Kundilovski 

could understand by breaking them down into simpler terms and by using translation 

software when necessary. Schlough’s testimony supports the court’s finding that 

Kundilovski was able to understand the information Schlough presented during their 

out-of-court discussions, even without an interpreter.

¶37 Other evidence further supports the court’s finding in that regard. The 

court credited DeVries’ testimony that during his postaccident interview with 

Kundilovski in the hospital, Kundilovski was able to answer some of his questions 

without waiting for the interpreter to translate them into Russian. The court also 

relied on the video recording of that interview. In addition, the court credited 

Ormson’s testimony that Kundilovski was able to communicate with jail staff 

without an interpreter.

¶38 Furthermore, Kundilovski’s own testimony did not support his claim 

that he needed an interpreter during his out-of-court discussions with Schlough. 

Kundilovski conceded that Schlough told him “the judge could pick whatever 
No. 2020AP322-CR

15

sentence he wanted to pick no matter what the plea deal was.” In addition, 

Kundilovski did not testify that he could not understand Schlough’s advice, nor did 

he testify that was unaware of the maximum penalties. Kundilovski’s testimony 

therefore supports the court’s finding that Schlough was able to communicate 

adequately with Kundilovski, even without an interpreter.

¶39 Finally, the circuit court rejected Kundilovski’s claim that Schlough’s 

“misleading” advice regarding the likely length of Kundilovski’s sentences 

rendered his pleas invalid. The court found that Schlough had explained the 

maximum penalties to Kundilovski, as well as the fact that the court was not bound 

by the parties’ recommendations, and that Kundilovski understood that information. 

The court further found, based on Schlough’s testimony, that Schlough merely 

provided Kundilovski with an estimate of the likely length of his sentences. Thus, 

the court implicitly found that Schlough never promised or guaranteed that 

Kundilovski would receive aggregate sentences totaling only three to seven years if 

he pled guilty. While Kundilovski testified he believed the court was limited to 

imposing sentences of three to seven years, the court did not find his testimony 

credible.

¶40 Again, Kundilovski does not argue that any of the circuit court’s 

factual findings are clearly erroneous. The court’s findings establish that 

Kundilovski was told—and understood—that the court could impose the maximum 

penalties and was not limited by any sentence recommendations. On this record, 

the court properly rejected Kundilovski’s claim that his pleas were not knowing, 

intelligent, and voluntary because he erroneously believed that the court was limited 

to imposing sentences totaling three to seven years.
No. 2020AP322-CR

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II. Ineffective assistance of counsel

¶41 In the alternative, Kundilovski argues he is entitled to plea withdrawal 

because Schlough was constitutionally ineffective. A defendant may demonstrate 

the manifest injustice necessary for plea withdrawal after sentencing by showing 

that he or she received ineffective assistance of trial counsel. State v. Dillard, 2014 

WI 123, ¶84, 358 Wis. 2d 543, 859 N.W.2d 44.

¶42 To establish ineffective assistance, a defendant must prove: (1) that 

trial counsel’s performance was deficient; and (2) that the deficiency prejudiced the 

defense. Id., ¶85. To prove deficient performance, a defendant must show that trial 

counsel’s performance fell outside the wide range of professionally competent 

assistance. Id., ¶88. To establish prejudice, a defendant must show there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different. Id., ¶95. In the plea withdrawal context, 

this requires a defendant to show that absent counsel’s errors, he or she would not 

have pled guilty and would have insisted on going to trial. State v. Cooper, 2019 

WI 73, ¶29, 387 Wis. 2d 439, 929 N.W.2d 192.

¶43 An ineffective assistance of counsel claim presents a mixed question 

of fact and law. Id., ¶14. We will uphold the circuit court’s factual findings unless 

they are clearly erroneous. Id. However, whether the facts demonstrate that 

counsel’s performance was deficient and prejudicial are questions of law that we 

review independently. Id.

¶44 Here, Kundilovski argues Schlough was ineffective by failing to use 

an interpreter when meeting with him outside of court, by failing to “retain an expert 

to establish ... Kundilovski’s language limitations,” and by incorrectly informing 

Kundilovski that he was likely to receive sentences totaling only three to seven 
No. 2020AP322-CR

17

years. Based on the circuit court’s factual findings, we conclude Kundilovski has 

failed to establish that Schlough performed deficiently in any of these respects.

¶45 As discussed above, the circuit court found that during Schlough and 

Kundilovski’s out-of-court discussions, Schlough was able to ensure that 

Kundilovski understood the maximum penalties for his offenses and that the court 

was not bound by any sentence recommendations. Schlough testified he did so by 

explaining those concepts as simply as possible in English and by using translation 

software when necessary. Schlough also testified that he believed Kundilovski 

understood him, and the court accepted his testimony in that regard. Schlough 

further testified that he explained the concept of consecutive sentences to 

Kundilovski, and Kundilovski seemed to understand it.1 Kundilovski himself 

testified that he did not ask for an interpreter when speaking with Schlough as he 

did not think an interpreter “could help [him] in any way.” Under these 

circumstances, Schlough could reasonably conclude it not was necessary to retain 

either an interpreter or an expert to assess Kundilovski’s language comprehension. 

Schlough’s failure to take those actions thus did not fall outside the wide range of 

professionally competent assistance and, as such, did not constitute deficient 

performance.

¶46 Nor did Schlough deficiently mislead Kundilovski into believing he 

would receive sentences totaling only three to seven years. The circuit court found 

 

1

 Although Schlough acknowledged he had told postconviction counsel that he was not 

“one hundred percent sure whether ... Kundilovski understood what consecutive sentencing 

meant,” it is clear the circuit court implicitly found that Kundilovski understood that concept. 

Moreover, Schlough later testified that although he had explained the concept of judicial sentencing 

discretion to Kundilovski and believed Kundilovski understood that concept, he could not “say for 

sure [whether Kundilovski understood] because I’m not ... Kundilovski.” It appears likely that 

when Schlough told postconviction counsel he was not one hundred percent sure whether 

Kundilovski understood the concept of consecutive sentencing, he similarly meant that he could 

not say for certain whether Kundilovski understood that concept because he is not Kundilovski.
No. 2020AP322-CR

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that Schlough merely provided Kundilovski with an estimate of the likely length of 

his sentences. The court thus implicitly found that Schlough did not guarantee or 

promise that Kundilovski’s sentences would not exceed three to seven years. While 

Schlough’s prediction turned out to be incorrect, Schlough testified it was based on 

his consultation with an individual who wrote private PSIs and had previously 

prepared PSIs for the DOC. Kundilovski does not develop any argument on appeal 

that Schlough’s reliance on that individual’s opinion was unreasonable.

¶47 Kundilovski has also failed to establish that he suffered prejudice as a 

result of Schlough’s allegedly deficient performance. While Kundilovski testified 

he would not have entered his pleas had he known that the circuit court could impose 

the maximum sentences, the court did not find his testimony to be credible. The 

court instead found that Kundilovski was informed—and understood—both the 

maximum penalties for his offenses and that the court was not bound by the parties’ 

sentence recommendations. The court also implicitly found that Schlough never 

promised Kundilovski that his sentences would not exceed three to seven years.

¶48 On these facts, Kundilovski has failed to establish that absent 

Schlough’s allegedly deficient performance, he would not have pled guilty and 

would have insisted on going to trial. The facts instead show that Kundilovski was 

informed and understood that the court could impose the maximum penalties, and 

he nevertheless accepted the State’s plea offer. The court therefore properly rejected 

Kundilovski’s ineffective assistance claim.

By the Court.—Judgment and order affirmed.

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

RULE 809.23(1)(b)5. (2017-18).