COURT OF APPEALS

DECISION

DATED AND FILED

January 25, 2022

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. 2019AP430 Cir. Ct. No. 2004JV7A

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

IN THE INTEREST OF S. C. M., A PERSON UNDER THE AGE OF 18:

STATE OF WISCONSIN,

 PETITIONER-RESPONDENT,

 V.

S. C. M.,

 RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Trempealeau County: 

RIAN RADTKE, Judge. Affirmed. 

¶1 HRUZ, J.1 Seth,

2 pro se, appeals an order denying his petition for

writ of coram nobis.

3

 Seth argues that several errors of fact existed when the 

 

1

 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2019-20). All 

references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2019AP430

2

circuit court accepted his pleas and issued a dispositional order. He contends that 

the court would not have accepted his pleas had it known that he made the 

incriminating statements giving rise to the delinquency petition during treatment,

or that he was not aware that he could seek to suppress such statements under 

“doctor-patient confidentiality.” He also argues that the delinquency petition and 

the dispositional order contained errors. We affirm.

BACKGROUND

¶2 In 2004, Seth was adjudicated delinquent in a prior juvenile case for 

first-degree sexual assault of a child, and he was placed at Lincoln Hills School in 

the serious juvenile offender program. In January 2006, a treatment specialist at 

Lincoln Hills School filed a “Report of Suspected Child Abuse” with Trempealeau 

County (“the County”), stating that Seth wrote a statement that he had “sexually 

assaulted a boy” and “offended on 7 additional victims.” The State later filed a 

delinquency petition in November 2006, alleging ten counts of sexual assault of a 

child under thirteen years of age, pursuant to WIS. STAT. § 948.02(1). The petition 

alleged that the County “received a report from Lincoln Hills School staff that 

[Seth] admitted to sexual abuse of eleven children in addition to the victim for 

which he is incarcerated at Lincoln Hills.”

¶3 Pursuant to a plea agreement, Seth admitted to four counts of sexual 

assault of a child under thirteen years of age. Seth subsequently signed a plea 

 

2

 For ease of reading, we refer to the appellant in this confidential appeal using a 

pseudonym, rather than his initials.

3

 The Honorable John A. Damon presided over Seth’s delinquency adjudications in 2004

and in 2007. The Honorable Rian W. Radtke presided over Seth’s petition for writ of coram 

nobis. 
No. 2019AP430

3

questionnaire and waiver of rights form. Before the circuit court issued a 

dispositional order, the County filed a dispositional report, which described, 

among other things, Seth’s prior delinquency adjudication, his treatment at 

Lincoln Hills School, and the circumstances under which Seth admitted to 

additional offenses and victims. In March 2007, the court found Seth delinquent, 

and it again placed him at Lincoln Hills School in the serious juvenile offender 

program.4

¶4 In October 2018, Seth filed a pro se “Notice of Motion and Motion 

for Writ of Error Coram Nobis.”

5 Seth alleged that during his court-ordered 

sex offender treatment, his therapist “insisted that I must admit to any other crimes 

[that] I committed in order to complete treatment and [to] be eligible for release. 

At her request, I completed detailed written statements.” Seth further alleged that 

after submitting his statements to his therapist, his therapist said that she had a 

duty to report the additional offenses, and she subsequently sent the statements to 

law enforcement. Seth argued that his therapist did not have a duty to report the 

offenses, and that his statements were subject to “doctor-patient privilege.” He 

 

4

 The record does not contain a transcript from Seth’s plea hearing or the subsequent 

disposition hearing. The scope of our review is confined to the record made available to us. See

State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (1992).

5

 Although labeled as a “motion,” we liberally construe Seth’s pro se filing as a petition 

for writ of coram nobis. See Amek Bin-Rilla v. Israel, 113 Wis. 2d 514, 520-21, 335 N.W.2d 

384 (1983) (recognizing that “pro se prisoner complaints, whether offered in petition or any other 

form, ... must be construed liberally to determine if the complaint states any facts giving rise to a 

cause of action”). The averments in a petition for writ of coram nobis are to be taken as true. 

State v. Hadaway, 2018 WI App 59, ¶18, 384 Wis. 2d 185, 918 N.W.2d 85. Seth appears to 

make additional allegations in his briefing to this court, but we need not address those allegations 

because the circuit court never had an opportunity to consider them. See State v. Raye, 2005 WI 

68, ¶24, 281 Wis. 2d 339, 697 N.W.2d 407 (issues not preserved at the circuit court will generally 

not be considered on appeal). Our analysis is therefore limited to the averments in Seth’s

petition.
No. 2019AP430

4

also alleged that he thought his written statements were part of the treatment 

process, and that he did not know that he could seek to prevent the disclosure of 

those statements in his related delinquency proceedings. Seth contended that the 

circuit court would not have found that he knowingly, intelligently and voluntarily 

entered his pleas had it known that Seth admitted to the offenses during treatment.

¶5 In addition, Seth argued that the delinquency petition was defective 

for failing to “cite the appropriate law.” He also argued that the dispositional 

order improperly placed him in the serious juvenile offender program for more 

time than is permitted by statute. In particular, he alleged that he was held in a 

Type 1 juvenile correctional institution for an additional 715 days beyond the 

purported three-year limit.

¶6 In a written order, the circuit court denied Seth’s petition, 

concluding that Seth’s arguments did not involve factual errors but, rather,

involved legal conclusions that could not be “addressed under a writ of error 

coram nobis.” Seth now appeals.

DISCUSSION

¶7 The writ of coram nobis “is of very limited scope,” and it gives “the

trial court an opportunity to correct its own record of an error of fact not appearing 

on the record and which error would not have been committed by the court if the 

matter had been brought to the attention of the trial court.” Jessen v. State, 95 

Wis. 2d 207, 213-14, 290 N.W.2d 685 (1980). To obtain a writ of coram nobis, a 

petitioner must establish: (1) that “no other remedy is available”; and (2) that 

there was “an error of fact which was unknown at the time of [the plea] and which 

is of such a nature that knowledge of its existence at the time ... would have 

prevented the entry of judgment.” See State ex rel. Patel v. State, 2012 WI App 
No. 2019AP430

5

117, ¶13, 344 Wis. 2d 405, 824 N.W.2d 862 (alterations in original; citation 

omitted). “The writ does not ‘correct errors of law and of fact appearing on the 

record since such errors are traditionally corrected by appeals and writs of error.’” 

Id. (citation omitted).

¶8 “Unless it clearly appears that an error of fact existed before 

judgment and but for such error the judgment would not have been entered, the 

writ of coram nobis should not be granted.” State v. Kanieski, 30 Wis. 2d 573, 

576, 141 N.W.2d 196 (1966) (citation omitted). Although a circuit court has 

discretion to grant a writ of coram nobis, we may independently review the 

petition to determine whether, as a matter of law, there is any legal basis for the 

court’s exercise of discretion. State v. Heimermann, 205 Wis. 2d 376, 386-87, 

556 N.W.2d 756 (Ct. App. 1996).

¶9 It is undisputed that no other remedy is available to Seth because he 

is no longer in custody under the dispositional order, which expired in 

March 2012. See Patel, 344 Wis. 2d 405, ¶13. Seth has therefore met the first 

requirement for a writ of coram nobis.

¶10 As to the second requirement, Seth argues that several potential 

errors of fact existed. He first argues that two factual errors involving the 

“doctor-patient privilege” existed at the time the circuit court accepted his 

pleas: (1) the court did not know that he made incriminating statements during the 

course of his sex offender treatment; and (2) the court did not know that he was 

never informed that he could seek to suppress those statements by claiming the 

“doctor-patient privilege.”

6

 Seth contends that if the court had known these facts, 

 

6

 WISCONSIN STAT. § 905.04(2) provides:

(continued)
No. 2019AP430

6

it would not have found that he knowingly, intelligently and voluntarily entered

his pleas. We address each of these alleged factual errors in turn.

¶11 As an initial matter, it seems highly questionable whether any error 

of fact existed regarding what the circuit court knew about Seth’s statements 

during treatment. In fact, the court may have known that Seth admitted to the 

offenses during treatment before accepting his pleas. As the State correctly points 

out, the delinquency petition stated that the offenses were reported by a Lincoln 

Hills School staff member. The same circuit court judge presided over Seth’s 

delinquency adjudication in 2004; therefore, the court would have likely known 

that Seth was at Lincoln Hill School for sex offender treatment. Moreover, 

although the dispositional report was filed after Seth entered his pleas, it was filed 

before the court issued the dispositional order, and the report contained numerous 

references to the circumstances in which Seth admitted to the offenses. 

Specifically, the report noted that “[Seth] admitted to these offenses in therapy.” 

Under these facts, it seems questionable whether any error of fact existed

regarding what the court knew about Seth’s statements. Given the time that has 

passed since the applicable delinquency petitions, as well as the absence of 

relevant documents from those proceedings in the current record, see supra, ¶3 & 

n.4, we are unable to further ascertain the specifics of these events.

 

A patient has a privilege to refuse to disclose and to prevent any 

other person from disclosing confidential communications made 

or information obtained or disseminated for purposes of 

diagnosis or treatment of the patient’s physical, mental or 

emotional condition, among the patient, ... the patient’s 

psychologist, the patient’s social worker, ... the patient’s 

professional counselor or persons, including members of the 

patient’s family, who are participating in the diagnosis or 

treatment under the direction of the ... psychologist, social 

worker, ... or professional counselor.
No. 2019AP430

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¶12 Even if the circuit court did not know that Seth admitted to the 

additional offenses during treatment, that fact, if known, would not have prevented 

the court from accepting Seth’s pleas and issuing a dispositional order. To 

comport with the Due Process Clause of the United States Constitution, a guilty or 

no-contest plea must be knowing, intelligent and voluntary. State v. Pegeese, 

2019 WI 60, ¶21, 387 Wis. 2d 119, 928 N.W.2d 590. To ensure that a plea is 

knowing, intelligent and voluntary, a circuit court must fulfill several statutory and 

common law duties. Id.

¶13 The fact that Seth admitted to additional offenses during treatment, 

however, does not undercut any of the circuit court’s required inquiries into 

whether Seth knowingly, intelligently and voluntarily entered his pleas. See id.,

¶23. For example, a factual basis still existed to support the pleas because Seth 

admitted on his plea questionnaire that he “intentionally had sexual contact or 

intercourse with a child under the age of 13 and [he] had the sexual contact for the 

purpose of sexual arousal or gratification.” See WIS. STAT. §§ 948.02(1), 

948.01(5) (2005-06). Furthermore, the court had no independent duty to identify 

potential legal issues with Seth’s statements during treatment or to inform Seth 

that his statements could potentially be suppressed as privileged communications. 

See State v. Pohlhammer, 82 Wis. 2d 1, 3, 260 N.W.2d 678 (1978), on reh’g from 

78 Wis. 2d 516, 254 N.W.2d 478 (1977); see also Pegeese, 387 Wis. 2d 119, ¶23.

¶14 Likewise, had the circuit court known that Seth was not aware that 

he could seek to suppress his statements, such knowledge would not have 

prevented the court from accepting his pleas. Again, the court had no independent

duty to inform Seth that his statements during treatment could potentially be 

suppressed. See Pohlhammer, 82 Wis. 2d at 3; see also Pegeese, 387 Wis. 2d 

119, ¶23. At most, the court may have informed Seth regarding the possibility of 
No. 2019AP430

8

his statements being suppressed or asked that Seth’s attorney discuss the issue

with Seth. But Seth has not identified any legal authority that would have required

the court to do so, or that would have prevented the court from accepting his pleas

despite his lack of knowledge regarding a potential suppression motion.7

¶15 Seth next argues that an error of fact existed at the time he entered

his pleas because the delinquency petition did not cite the appropriate law of the 

alleged crime, contrary to WIS. STAT. § 938.255(1)(d). Assuming, without 

deciding, that the petition did not comply with § 938.255(1)(d), Seth’s argument 

fails for two reasons. First, the alleged error would not be an error of fact but a 

legal error because it involves the sufficiency of a delinquency petition and the 

interpretation and application of § 938.255(1)(d). See State v. A.S., 2001 WI 48, 

¶26, 243 Wis. 2d 173, 626 N.W.2d 712 (the sufficiency of a delinquency petition 

is a question of law); State v. Carter, 2010 WI 77, ¶12, 327 Wis. 2d 1, 785 

N.W.2d 516 (the interpretation and application of a statute to undisputed facts are 

questions of law). Second, the alleged error—i.e., a defective delinquency 

petition—appeared on the record and could have been corrected by an appeal or a 

writ of error. See Patel, 344 Wis. 2d 405, ¶13.

¶16 Seth next argues that an error of fact existed at the time the circuit

court issued the dispositional order because the court placed him in a Type 1 

 

7

 As a practical matter, without any duty to identify this potential legal issue and address 

it in a plea colloquy, it is unclear how—without Seth’s attorney first raising the issue—the circuit

court would have learned that Seth did not know that he could potentially seek to suppress 

statements made during treatment. Seth does not argue that his attorney provided ineffective 

assistance by failing to file a motion to suppress Seth’s statements during treatment. Even if Seth

had, we have previously concluded that the writ of coram nobis under Wisconsin common law 

does not extend “to legal errors of fundamental and constitutional dimension.” State ex rel. Patel 

v. State, 2012 WI App 117, ¶¶14-15, 344 Wis. 2d 405, 824 N.W.2d 862; see also State v. 

Kanieski, 30 Wis. 2d 573, 579, 141 N.W.2d 196 (1966).
No. 2019AP430

9

juvenile correctional facility for 715 days beyond the three-year limit set forth in

WIS. STAT. § 938.538(3)(a)1. (2007-08). In reaching that conclusion, Seth counts 

the time that he spent at Lincoln Hills School as a result of both the 2004 and 2007 

delinquency adjudications.

¶17 Assuming, without deciding, that the circuit court violated WIS.

STAT. § 938.538(3)(a)1. (2007-08), Seth’s argument again fails for two reasons. 

First, the alleged error would not be an error of fact because it involves the 

interpretation and application of § 938.538(3)(a)1. (2007-08), which are questions 

of law. See Carter, 327 Wis. 2d 1, ¶12. Second, because the dispositional report 

acknowledged that Seth was placed at Lincoln Hills School in December 2004,

and because the dispositional order explicitly expired in March 2012, the alleged 

error appeared on the record and could have been addressed by an appeal or a writ 

of error. See Patel, 344 Wis. 2d 405, ¶13.

¶18 Finally, Seth requests, without further argument, that we invoke our 

discretionary reversal power under WIS. STAT. § 752.35. Seth has not shown that 

any factual errors would have prevented the circuit court from accepting his pleas

or from issuing a dispositional order. Accordingly, Seth has not demonstrated that 

the real controversy has not been fully tried or that a probable miscarriage of 

justice has occurred. See § 752.35. This case is not an “exceptional” one

warranting our discretionary reversal. See State v. McKellips, 2016 WI 51, ¶52, 

369 Wis. 2d 437, 881 N.W.2d 258.
No. 2019AP430

10

¶19 In sum, the circuit court did not erroneously exercise its discretion 

by refusing to issue a writ of coram nobis.

8

 The alleged factual errors regarding 

Seth’s statements during treatment and his lack of knowledge that such statements 

might be suppressed would not have prevented the court from accepting Seth’s 

pleas and issuing a dispositional order. In addition, the alleged defects in the 

delinquency petition and the dispositional order appeared on the record, and they 

are not errors of fact.9

By the Court.—Order affirmed.

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

809.23(1)(b)4.

 

8

 Seth also argues that the doctrine of laches does not preclude him from seeking a writ 

of coram nobis. We need not address that additional argument, however, because the State never 

raised a laches argument with the circuit court. See Raye, 281 Wis. 2d 339, ¶24. Moreover, we 

have already concluded, on the merits, that the court did not err by refusing to issue a writ of 

coram nobis. See Turner v. Taylor, 2003 WI App 256, ¶1 n.1, 268 Wis. 2d 628, 673 N.W.2d 716 

(we need not address all issues raised by the parties if one is dispositive).

9

 We have thoroughly examined Seth’s brief-in-chief and reply brief in an attempt to 

discern all of his arguments. To the extent we do not address an argument, we conclude it is not 

sufficiently developed to merit discussion. See State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 

555, 564, 261 N.W.2d 147 (1978) (“[I]ssues raised and not discussed ... can be deemed to lack 

sufficient merit or importance to warrant individual attention.”).