### COURT OF APPEALS DECISION DATED AND FILED December 26, 2019

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 W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2018AP2343 Cir. Ct. No. 1991CF1660 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV

S TATE OF W ISCONSIN , P LAINTIFF - R ESPONDENT ,

V . H ERMAN W HITERABBIT , D EFENDANT - A PPELLANT .

APPEAL from an order of the circuit court for Dane County:
JILL KAROFSKY , Judge. Affirmed

.

Before Fitzpatrick, P.J., Kloppenburg and Nashold, 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 W IS . S TAT . R ULE 809.23(3).No. 2018AP2343

2 ¶ 1 PER CURIAM. Herman Whiterabbit appeals an order denying his
W IS

. S TAT

. § 974.06 ( 2015

- 16 ) 1 postconviction motion. Whiterabbit contends that
his trial counsel , James Ewers, was pe r se ineffective because following Whiterabbit’s trial Ewers was disbarred for illegal conduct that occurred prior to
the trial . Whiterabbit also contends that the circuit court erred by denying his
ineffective assistance of counsel claim on the ground that it was procedurally
barred under State v. Escalona

- Naranjo , 185 Wis. 2d 168, 517 N.W.2d 157 (1994). We reject Whiterabbit’s claim that his tri al counsel was per se ineffective,
and we affirm on that basis. See State v. Trecroci , 2001 WI App 126, ¶ 45, 246
Wis. 2d 261, 630 N.W.2d 555 (we may affirm the circuit court’s decision on other grounds than relied on by the court)

. Accordingly, we need not address whether the procedural bar applies.

¶ 2 In November 1991, Whiterabbit was charged with three counts of
second

- degree sexual assault, as a repeater. Attorney Ewers represented
Whiterabbit at trial

. A jur y found Wh iterabbit guilty of all counts. He was convicted on April 30, 1992 and sentenced to thirty

- six years in prison.

¶ 3 Whiterabbit appealed, and this court affirmed the conviction in April 1995. State v. Whiterabbit , No. 1993AP2347

- CR, unpublished slip op. ( WI App April 20, 1995). In 2001, Whiterabbit moved for a new trial based on newly discovered evidence. The circuit court denied the motion, and this court affirmed the circuit court order in May 2002. State v. Whiterabbit , No. 2001AP2232, unpublished slip op. ( WI App May 16, 2002).

1 All references to the Wisconsin Statutes are to the 2015

- 16 version

.No. 2018AP2343

3 ¶ 4 In September 2017, Whiterabbit filed the W IS

. S TAT

. § 974.06 motion underlying this appeal. He argued that Ewers was per se ineffective because, in 1995, Ewers’ license to pr actice law was revoked for his having used, purchased, and distributed cocaine at his law office from 1985 through 1989. Whiterabbit argued that if Ewers was unfit to practice law in 1995, he was equally unfit at the time of Whiterabbit’s trial in 1992. Whiterabbit argued that , under United States v. Cronic , 466 U.S. 648 (1984), he was not required to show actual prejudice to establish that he was denied the effective a ssistance of counsel at trial.

¶ 5 The circuit court held two evidentia ry hearings on Whiterabbit’s motion. Whiterabbit and his prior postconviction counsel testified at the hearings. The court found that Whiterabbit’s claim of ineffective assistance of counsel was procedurally barred under Escalona

- Naranjo because Whiterab bit had not established a sufficient reason for failing to raise it previously . Whiterabbit appeals.

¶ 6 A claim of ineffective assistance of counsel generally requires a showing that counsel’s performance was deficient and that the defici ent performance prejudiced the defense. See Strickland v. Washington , 466 U.S. 668, 687 (1984). “Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated.”
Cronic , 466 U.S. at 658

. In some instances, however, prejudice from counsel’s deficient conduct is presumed without a required showing of the effect of the
conduct on the trial

. Id. at 658

- 59. For example, prejudice is presumed when counsel entirely fails to subject the State’s case to adversarial testing or when the facts dictate that even a competent lawyer could not have provided effective
assistance. Id. at 659

- 60 . We independently review whether undisputed factsNo. 2018AP2343

4 establish ineffective assistance of couns el. See State v. Manuel , 2005 WI 75, ¶ 26, 281 Wis. 2d 554, 697 N.W.2d 811.

¶ 7 Whiterabbit argues that Ewers was per se ineffective under Cronic
beca use the facts supporting Ewers’ eventual disbarment had already occurred at
the time of Wh iterabbit’s trial. He contends that the finding that Ewers was unfit to practice law in 1995 based on his conduct in the 1980s established that Ewers was unfit to practice law at the time of Whiterabbit’s trial in 1992. In support,
Whiterabbit cites Soli na v. United States , 709 F.2d 160 (2 d Cir. 1983), which found per se ineffective assistance of counsel when the person who represented the defendant at trial had never been admitted to practice law in any state. Whiterabbit points out that the Solina cour t reasoned that a person falsely purporting to be a licensed lawyer “ cannot be wholly free from fear of what might happen if a vigorous defense should lead the prosecutor or the trial judge to inquire into his background and discover his lack of credential s. Yet a criminal defendant is entitled to be represented by someone free from such constraints. ” Id. at 164. He also points out that the Solina court explained that its finding of per se ineffective assistance was limited to “ situations where, unbeknown to the defendant, his representative was not authorized to practice law in any state, and
the lack of such authorization stemmed from failure to seek it or from its denial for a reason going to legal ability, such as

... want of m oral character .” Id. at 167.

¶ 8 Whiterabbit also cites United States v. Novak , 903 F.2d 883 (2 d Cir. 1990), which found per se ineffective assistance when defense counsel had obtained admission to the bar by fraud and was disbarred after the defendant’s trial. Whiterabbit points out that the Novak court reasoned that Novak’s defense
counsel would not have been admitted to the bar absent his fraud

. Id. at 890. Whiterabbit also points to the Novak court’s reasoning that, as in Solina , the reNo. 2018AP2343

5 was a danger that defense counsel would have been concerned that “ a vigorous legal defense that irritated the prosecutor ” would trigger an investigation into his
licensure. Id.

¶ 9 Whiterabbit also cites Commonwealth v. Allen , 48 A.3d 1 283, 1287 ( Pa. Super. Ct. 2012 ) (quoted source omitted) , for the proposition that “[c] ourts have consistently distinguished between technical licensing defects and serious violations of bar regulations reflecting an inc ompetence to practice law.” He point s to the Allen court’s statement that “[w]here the attorney’ s license has been suspended or he/she has been disbarred for substantive violations, constitutional rights are violated and harm is presumed. ” Id. (quoted source omitted).

¶ 10 Whiterabbit contends that, as in Solina and Novak , Ewers was not free from the fear that a vigorous defense would lead the prosecutor or trial judge to inquire into his background. Whiterabbit points out that, at the time of Whiterabbit’s trial in 1992, Ewers knew that he had committed felonies throughout the 1980s that were not yet discovered by the authorities. Whiterabbit also argues that, had Ewers ’ conduct been discovered prior to Whiterabbit’s trial,
Ewers would have been disbarred at that time. W hiterabbit argues that the disbarment would not have been for a technical defect, but for a lack of moral character. Whiterabbit contends that even an experienced advocate could not haveNo. 2018AP2343

6 been expected to provide Whiterabbit with effective assistance under these
circumstances. 2

¶ 11 In response, the State argues that Whiterabbit has failed to cite any case holding that counsel is per se ineffective under the facts of this case. The
State contends that, instead, courts have refused to find pe r se prejudice in similar circumstances. In support, it cites United States v. Williams , 934 F.2d 847, 851

- 52 (7 th Cir. 1991), which held that prejudice was not presumed when defense counsel’s license was suspended after the defendant’s trial for professi onal
misconduct that had occurred prior to trial. The State points out that the Williams court refused to find per se prejudice because defense counsel had a valid law
license at the time of trial. Id. at 852. The State also cites Bellamy v. Cogdell , 97 4 F.2d 302, 303

- 0 7 (2 d Cir. 1992), which held that defense counsel was not per se ineffective when counsel was subject to disciplinary proceedings stemming from counsel’s ill health prior to and during the defendant’s trial, and counsel’s license was suspe nded after the trial. The State points out that the Bellamy court distinguished Novak and Solina on grounds that, in Bellamy , counsel had validly obtained a license to practice law and then committed misconduct that led to the
eventual loss of his law lic ense after the defendant’s trial. Id. at 307. The State
contends that the same is true here: Ewers validly obtained a law license, but lost
his license after Whiterabbit’s trial based on prior misconduct. The State also

2 In his reply brief, Whiterabbit asserts that the per se ineffective assistance of counsel claim was not fully developed in the circuit court because the circuit court applied the procedural bar rather than reaching the merits of the claim. He argues that, if this court does not rely on the procedural bar, we s hould remand for further proceedings on the ineffective assistance of counsel claim or order additional briefing on that issue. We are not persuaded that remand or further briefing is necessary for us to decide the merits of Whiterabbit’s per se ineffecti ve assistance of counsel claim.No. 2018AP2343

7 argues that nothing in Allen or Cronic supports Whiterabbit’s claim of per se prejudice under the facts of this case.

¶ 12 We conclude that Whiterabbit has not established that his trial
counsel was per se ineffective. Ewers’ criminal conduct in the 1980s, which had apparently concluded and was undetected at the time of his representation of Whiterabbit in 1992, does not establish that Ewers would not have been able to provide a vigorous defense out of fear of an investigation into his licensure. Unlike the purported counsel in Solina and Novak , Ewers validly obtained a law license and still had a valid law license at the time of Whiterabbit’s trial. Here, as
in Williams and Bellamy , the fact that Ewers engaged in misconduct prior to his representation of Whiterabbit, which caused Ewers to lose his license after trial, does not establish that counsel was not functioning as the counsel guaranteed by
the Sixth Amendment at Whiterabbit’s trial . Because trial counsel was not per se ineffective, and Whiterabbit made no allegation and developed no argument in his postconviction motion that he was actually prejudiced by any deficient performance by counsel at trial, his claim of ineffective assistance of counsel fails
on the merits. The circuit court therefore properly denied the postconviction
motion.

By the Court.

— Order affirmed

.

This opinion will not be published. See W IS

. S TAT

. R ULE 809.23(1)(b)5.