COURT OF APPEALS

DECISION

DATED AND FILED

April 14, 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. 

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Cir. Ct. Nos. 2015CF626

2015CF680

2015CF681

2015CF730

2016CF80

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

TYLER M. METZNER,

 DEFENDANT-APPELLANT.

APPEALS from an order of the circuit court for Sheboygan County: 

REBECCA L. PERSICK, Judge. Affirmed. 

Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.
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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. In this consolidated appeal, Tyler M. Metzner 

appeals from an order of the circuit court granting in part and denying in part his 

postconviction motion for plea withdrawal. Metzner sought to withdraw his guilty 

pleas and reinstate his pleas of not guilty by reason of mental disease or defect 

(NGI) on the basis of ineffective assistance of counsel. Metzner also argues that

he was improperly convicted and sentenced on felony bail jumping charges, that 

the record fails to establish a factual basis for a charge of felony escape, and that 

he was subjected to cruel and unusual punishment in violation of his Eighth 

Amendment rights. We reject Metzner’s arguments and affirm.

Background

¶2 Between May 28, 2015, and February 2, 2016, Metzner amassed 

fifty-three misdemeanor and felony charges in eleven criminal cases. At issue in 

this appeal are circuit court case Nos. 2015CF626, 2015CF680, 2015CF681, 

2015CF730, and 2016CF80.1 All involved charges for conduct that occurred 

while Metzner was in custody at the Sheboygan County Detention Center (SCDC).

 

1

 We ordered the appeals in these cases consolidated on March 12, 2020.
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¶3 In these cases,2 Metzner was charged twice for “break[ing] a fire 

suppressant sprinkler head off of the ceiling,” which, under at least one 

circumstance, caused “a large volume of water to enter the cell at a rapid rate.”3 

He also spit and threw feces at correctional officers and healthcare professionals, 

stuffed his blanket in the toilet, punched the security camera in his cell, and 

smeared his feces on the cell window and walls on multiple occasions. In a 

particularly egregious incident, Metzner attacked a correctional sergeant, striking 

him in the head repeatedly.

¶4 According to the complaints, Metzner reported that he did these 

things “because he was bored,” was “having significant issues with some of the 

guards in the facility,” and was upset about the conditions in his cell. “He stated 

that it was either damage the sprinkler heads or, in his words, receive a homicide 

charge.” Metzner reported that “all of these things, coupled with being placed in 

complete seclusion, [was] driving his anger level through the roof,” and when 

 

2

 In case No. 2015CF626, the criminal complaint charged ten counts, including 

interference with fire fighting, pursuant to WIS. STAT. § 941.12 (2019-20); two counts of felony 

bail jumping; criminal damage to property; and six counts of misdemeanor bail jumping. All 

references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted. In case 

No. 2015CF680, the complaint charged six counts, again for interference with fire fighting, 

criminal damage to property, felony bail jumping, and three counts of misdemeanor bail jumping. 

In case No. 2015CF681, the State charged battery by prisoner, pursuant to WIS. STAT.

§ 940.20(1); escape, pursuant to WIS. STAT. § 946.42(3)(a); assault by prisoner, pursuant to WIS.

STAT. § 946.43(1m)(a); and resisting an officer causing a soft tissue injury, pursuant to WIS.

STAT. § 946.41(1), (2r). In case No. 2015CF730, the charges were three counts of assault by 

prisoner, three counts of misdemeanor bail jumping, and two counts of felony bail jumping. And 

finally, in case No. 2016CF80, the State charged two counts of assault by prisoner and four 

counts of felony bail jumping.

3

 Metzner “had either successfully removed or attempted to remove the sprinkler head” 

at least five times.
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warned that if he continued to behave in this way he would receive additional 

charges, he “said that until he receives the things he wants at the detention center, 

he will rip off every sprinkler head.”

¶5 Metzner was in court on November 4, 2015, for a preliminary 

hearing, which he waived, in case Nos. 2015CF618 and 2015CF626. During that 

hearing, he informed the court that he was on medication for “[d]epression, 

schizophrenia, and anxiety disorder,” and that the “treatment” “[k]ind of” 

“interfere[s] with [his] ability to understand what’s going on here.” When the 

court investigated, Metzner responded, “I can understand what’s going on.” At 

that point, trial counsel stated that Metzner intended to enter an NGI plea and that 

there was “a question of competency based on a review of the [c]omplaints.” Trial 

counsel reported that it was her “goal to have [Metzner] transferred to an inpatient 

[mental health] facility and be evaluated as soon as possible.” The court entered 

the competency evaluation order the next day.

¶6 On December 2, 2015, Metzner was again in court for the

preliminary hearings in case Nos. 2015CF680 and 2015CF681. Again, Metzner 

entered NGI pleas, and trial counsel expressed that “[t]hese cases are frustrating” 

and “heartbreaking because Mr. Metzner is in serious need of mental health 

assistance.”4 Trial counsel explained,

 

4

 It is important to note that during Metzner’s time at SCDC, he was receiving prescribed 

medications for treatment of his mental health, and he reported that he “talk[s] to the health 

person at the jail, like, every week.”
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 I think the cases now where he has allegedly hurt an 

officer, you know, he’s consistently on suicide watch. He 

is a danger to himself. He is a danger to others. I don’t 

know why he can’t be transferred to Mendota [mental 

health facility]. I’m told it can’t be until all these cases are 

resolved. I feel we are on a vicious cycle we can’t seem to 

break.

 So I don’t know really what else to do, and I feel like 

until we get these cases resolved we’re going to keep 

coming back here. And I’m concerned for Mr. Metzner’s 

health, and I’m concerned for the safety of the Detention 

Center as well. I would like to see him transferred to 

Mendota or Winnebago [mental health facility] so he could 

receive help.

The court, the State, and counsel then discussed the situation, with the court 

indicating that “I’m not aware of any authority I have to simply transfer [Metzner 

to a mental health facility] at this point without a mental commitment order or 

some type of disposition in these cases.” The hearing concluded with the State 

and the court providing suggestions to assist counsel in obtaining a transfer for 

Metzner.

¶7 On December 11, 2015,

5 Dr. Mary Kay Luzi, Ph.D., completed her 

competency evaluation of Metzner, after which the circuit court found Metzner 

competent based on Luzi’s report and trial counsel’s stipulation to waive the 

competency hearing. Counsel then pursued plea negotiations with the goal of 

achieving a global resolution of the charges.

 

5

 That same day, Metzner picked up the charges in case No. 2015CF730. Metzner 

waived his preliminary hearing on these charges at his global plea hearing.
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¶8 Metzner ultimately resolved the cases with a global plea agreement.6 

The court ordered a presentence investigation report (PSI) and held the sentencing 

hearing on March 21, 2016. The circuit court sentenced Metzner to a total of 

seventeen years’ initial confinement and seventeen years’ extended supervision.

¶9 In October 2018, Metzner filed a postconviction motion seeking to 

withdraw his guilty pleas. The circuit court held an evidentiary hearing on the 

motion. Trial counsel and Dr. Steven Kaplan, Ph.D., testified. The court denied 

 

6

 Metzner pled to three counts of expelling bodily fluids and one count of felony bail 

jumping in case No. 2015CF730; one count of battery by prisoner, one count of escape, one count 

of assault by prisoner causing fear of death, and one count of resisting an officer causing soft 

tissue injury in case No. 2015CF681; one count of interfering with fire equipment, one count of 

criminal damage to property, and one count of felony bail jumping in case No. 2015CF680; and 

one count of interfering with fire equipment, one count of felony bail jumping, and one count of 

criminal damage to property in case No. 2015CF626. The remaining counts in those cases were 

dismissed and read in for sentencing. Case Nos. 2015CF618, 2015CM815, 2015CM768, 

2015CM557, and 2015CM499 were also dismissed in their entirety and read in.

After his plea hearing, but before sentencing, Metzner picked up case No. 2016CF80 on 

February 2, 2016. Upon further negotiations, Metzner pled to two counts of expelling bodily 

fluids at a corrections officer and one count of felony bail jumping. The remaining charges, as 

well as case No. 2016CM71, were dismissed and read in.
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Metzner’s motion for plea withdrawal, finding that Metzner had not met his 

burden.7 Metzner appeals.

NGI

¶10 We begin with Metzner’s argument that he “should be allowed to 

withdraw his guilty pleas and reinstate his NGI pleas due to prejudicial and 

ineffective assistance of counsel in addressing and handling his serious mental 

health issues.” After sentencing, a defendant is entitled to withdraw a plea only if 

he or she establishes by clear and convincing evidence that withdrawal is 

necessary to correct a “manifest injustice.” State v. Taylor, 2013 WI 34, ¶¶24, 48, 

347 Wis. 2d 30, 829 N.W.2d 482; State v. Thomas, 2000 WI 13, ¶16, 232 Wis. 2d 

714, 605 N.W.2d 836 (“If a defendant moves to withdraw the plea after 

sentencing, the defendant ‘carries the heavy burden of establishing, by clear and 

convincing evidence, that the trial court should permit the defendant to withdraw 

the plea to correct a manifest injustice.’” (citation omitted)). In other words, 

“there are ‘serious questions affecting the fundamental integrity of the plea.’” 

 

7

 Metzner’s motion also alleged that the record failed to establish an adequate basis for 

the charges of interfering with fire fighting. Metzner noted that he pled to WIS. STAT.

§ 941.12(1), which provides that “[w]hoever intentionally interferes with the proper functioning 

of a fire alarm system or the lawful efforts of fire fighters to extinguish a fire is guilty of a Class I 

felony.” Metzner claimed that he did not interfere with the “proper functioning of a fire alarm 

system” as “[t]here [we]re no allegations that any ‘alarm’ sounded or that any fire fighter was 

otherwise alerted.” The State conceded that judgment on those charges was entered in error and 

that Metzner should have been charged under § 941.12(2), which provides that “[w]hoever 

interferes with, tampers with or removes, without authorization, any fire extinguisher, fire hose or 

any other fire fighting equipment, is guilty of a Class A misdemeanor.” The court granted 

Metzner’s motion as to that issue and ordered the convictions on those counts vacated and the 

charges dismissed.
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State v. Dillard, 2014 WI 123, ¶36, 358 Wis. 2d 543, 859 N.W.2d 44 (citation 

omitted). “One way to demonstrate manifest injustice is to establish that the 

defendant received ineffective assistance of counsel.” Id., ¶84.

¶11 To establish ineffective assistance of counsel, the defendant must 

show both that trial counsel’s performance was deficient and that the deficiency 

prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). 

To find deficient performance, the defendant must establish that “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). Our review of counsel’s performance is “highly 

deferential,” and “[c]ounsel enjoys a ‘strong presumption’ that his [or her] conduct 

‘falls within the wide range of reasonable professional assistance.’” Id. (citation 

omitted).

¶12 To establish prejudice, “the defendant must show that ‘there is a 

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

the proceeding would have been different.’” Id., ¶37 (citation omitted). Where 

the defendant seeks post-sentencing plea withdrawal, he or she “must show that 

there is a reasonable probability that, but for counsel’s errors, he [or she] would 

not have pleaded 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 (quoting Hill v. 

Lockhart, 474 U.S. 52, 59 (1985)). We need not reach both prongs of the 

Strickland test if one is dispositive. Strickland, 466 U.S. at 697. Whether the 

defendant received ineffective assistance of counsel is a question of constitutional 

fact: we uphold the circuit court’s findings of fact unless they are clearly 
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erroneous, but we independently determine whether counsel provided 

constitutionally ineffective assistance. Dillard, 358 Wis. 2d 543, ¶86.

¶13 On appeal, Metzner faults trial counsel for allowing him to be “held 

in isolation for months” at SCDC where he “received no meaningful mental health 

treatment,” which led to the charges in these cases. Citing to Jones ‘El v. Berge, 

164 F. Supp. 2d 1096, 1098, 1102-1103 (W.D. Wis. 2001), Metzner argues that 

“[c]onditions of confinement in county jails are notoriously more difficult than in 

state prisons, especially for inmates with mental health problems,” as “isolation” 

and “[t]he resultant sense of doom can render inmates incapable of following the 

rules.” According to Metzner, trial counsel “did not believe [he] was truly 

mentally ill,” based on the competency report from Luzi indicating a history of 

“malingering,” and, as a result, “everyone” “turned[ed] a blind eye to how the 

isolation and absence of treatment at SCDC impacted him.”

¶14 Metzner also faults trial counsel for “abandoning his NGI defense.” 

He explains, “It was deficient to unilaterally abandon Metzner’s NGI defense 

based on a competency report and an erroneous reading of his Winnebago records, 

particularly without: (1) getting an NGI evaluation; or (2) consulting any mental

health professional; or (3) at least picking up the phone to call Dr. Kaplan [who]

had evaluated Metzner in 2010 and found he had a valid NGI defense.”

¶15 We conclude that Metzner has failed to prove that trial counsel 

performed deficiently. First, the record on appeal is clear that trial counsel took 

steps to facilitate Metzner’s removal from SCDC and transfer to a mental health 

facility. Counsel testified that she recognized early on that Metzner was having 
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difficulties. At the November 4, 2015 hearing, counsel indicated that she intended 

to get Metzner transferred out of SCDC, and she again raised the issue at the 

hearing on December 2, 2015. Although her efforts were ultimately unsuccessful, 

she testified that she attempted to assist Metzner by filing a motion to reduce his 

bail to a signature bond so he could be released to a mental health facility; calling 

mental health facilities to see if they would take him, which they refused to do 

without a court order; calling the Department of Health Services and speaking 

with corporation counsel to have an evaluator meet with him; calling SCDC, 

which “would not get involved because [it] said that [it] had mental health 

treatment there, and he was getting it, and it was a locked inpatient facility,” and 

asking the circuit court for an order releasing Metzner to a mental health facility. 

Trial counsel also arranged for a physician, who “had helped [Metzner] a lot 

through church and in the community,” to have “visitation with [Metzner].” 

Counsel indicated that “at the time the Court, the district attorney, and I were all 

under the impression that he would be transferred to Mendota” as a result of the 

competency evaluation, and she found out in early December 2015 that would not 

be the case. Based on this record, trial counsel was not constitutionally deficient 

in her efforts.

¶16 As to trial counsel’s decision not to pursue an NGI plea and to work 

toward a global resolution of Metzner’s charges, we conclude that was a 

reasonable strategic decision based on an appropriate investigation under the 

circumstances. Counsel began her representation of Metzner from a posture of an 

NGI plea until the point at which she reviewed Luzi’s competency evaluation. 

Luzi’s evaluation did not only find that Metzner was competent to proceed, but her 
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review of collateral records also indicated that he had a history of “[m]alingering 

(i.e., feigning/exaggerating psychiatric symptomatology for secondary gain 

purposes).” She reported that in 2003 Metzner was found not competent, but 

“during subsequent competency restoration at [the mental health facility], he was 

assessed as malingering along with diagnoses of unspecified depressive disorder, 

antisocial personality and substance dependence.” Then, in 2010, Metzner was 

adjudicated NGI8—for charges similar to those at issue in these cases—but when 

he was sent to the mental health facility, “he was assessed to show no evidence of 

serious mental illness, either major mood or thought disorder, despite being on no 

psychotropic medication.” Luzi noted that Metzner’s mental health contacts were 

“widely spaced and occurring in the context of legal problems with local police.” 

Specifically, she found a “lack of support for a serious mental illness—either 

major mood disorder, thought disorder or psychotic symptomatology.”

¶17 After trial counsel’s investigation, including a review of “all of 

[Metzner’s] records and then the competency evaluation,” she at that point 

determined that an NGI plea was “not viable.” She testified,

I know competency and NGI are very different situations. 

And if the competency report would have come back and 

given me something to go on, but it was so damaging. And 

then the review of the records were so damaging that to 

pursue that to keep [Metzner] at the Detention Center any 

longer, you know, what I was hearing was the only way to 

get him help was to have him plead and get the help he 

needed. I didn’t see how an NGI was going to help him 

other than dragging it out and potentially having him face 

more jail time.

 

8

 Our understanding from the record is that Metzner was adjudicated NGI based on an 

evaluation by Kaplan. Kaplan’s findings were disputed by Luzi in her evaluation.
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¶18 After the plea hearing, trial counsel also sought an expert opinion 

from Dr. Melissa Westendorf, J.D., Ph.D., as a “Hail Mary.” After a one and onehalf hour interview with Metzner and a review of his records, Westendorf reported 

that “it does not appear as though I can support his special plea of not guilty by 

reason of mental disease or defect.” Westendorf did not “want to write an 

evaluation that would be submitted to the Court that would be damaging to 

[Metzner],” so she instead wrote a short letter. In it, she opined that “[w]hile 

[Metzner] certainly experiences some drastic and significant emotional 

dysregulation,” this was “insufficient to negate his responsibility for his alleged 

offenses,” as “his acting out [wa]s more likely the result of his antisocial 

characteristics.”

¶19 At the postconviction motion hearing, Metzner called Kaplan to 

testify. Kaplan interviewed Metzner in October 2018 at the request of 

postconviction counsel, but he had also evaluated him previously for an NGI plea. 

Although we will not recount the details of Kaplan’s testimony, he opined that his 

diagnosis of Metzner with borderline personality and bipolar disorder with 

psychosis was consistent with an NGI defense and that Metzner was not 

malingering in 2015. Kaplan explained that he did not consider Luzi’s report in 

his opinion as it was a competency evaluation and not an NGI evaluation, nor did 

he consider Westendorf’s letter as there was “not a lot of meat” to it. On crossexamination, Kaplan admitted that he did not test Metzner for possible 

malingering in his evaluations, and he agreed that “just because someone has had a 

mental health diagnosis” does not mean that he or she is “necessarily NGI.”
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¶20 The circuit court made extensive findings of fact before concluding 

that Metzner failed to establish that trial counsel’s performance was deficient and 

prejudicial; we agree with the court’s conclusion.

¶21 The question before this court is whether Metzner was denied the 

effective assistance of counsel, and we conclude that he was not.9 Trial counsel’s 

decision to pursue a global resolution instead of presenting an NGI defense was 

clearly strategic, as indicated by her testimony, based on her view of the strength 

of Metzner’s NGI defense and her goal to resolve these cases quickly so as to 

transfer Metzner out of SCDC. This strategic decision was made after an 

investigation of Metzner’s competency evaluation as well as his mental health 

history and was supported by Westendorf’s independent assessment, sought by 

counsel. See Strickland, 466 U.S. at 690 (“[S]trategic choices made after 

thorough investigation of law and facts relevant to plausible options are virtually 

unchallengeable.”).

¶22 Trial counsel was under no legal requirement to contact Kaplan 

specifically, nor was she required to continue seeking an opinion from multiple

experts until she found one that would support Metzner’s NGI plea. Even if one 

could argue that counsel’s investigation was not sufficiently “thorough,” two 

experts opined that Metzner’s mental health situation could not support an NGI 

plea, and it was reasonable for her to rely on those opinions under the 

circumstances. See State v. Balliette, 2011 WI 79, ¶26, 336 Wis. 2d 358, 805 

 

9

 As Metzner recognizes, this case does not turn on whether Metzner was truly NGI or 

was malingering. We take no position on that question as it is not before this court. 
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N.W.2d 334 (“Even decisions made with less than a thorough investigation may 

be sustained if reasonable, given the strong presumption of effective assistance 

and deference to strategic decisions.”). Accordingly, we conclude that trial 

counsel did not perform deficiently, and, as a result, did not provide ineffective 

assistance. See Strickland, 466 U.S. at 697 (noting that we need not address both 

prongs of the analysis if the defendant does not make a sufficient showing on one 

of them). As Metzner did not receive ineffective assistance of counsel, there was 

no manifest injustice and he is not entitled to plea withdrawal.

10

 

10

 On appeal, Metzner suggests that his postconviction motion was both a Nelson v. 

State, 54 Wis. 2d 489, 195 N.W.2d 629 (1972)/State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 

(1996), motion and a State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), motion, which 

are applicable in different factual circumstances. “A defendant invokes Bangert when the plea 

colloquy is defective; a defendant invokes Nelson/Bentley when the defendant alleges that some 

factor extrinsic to the plea colloquy, like ineffective assistance of counsel or coercion, renders a 

plea infirm.” State v. Howell, 2007 WI 75, ¶74, 301 Wis. 2d 350, 734 N.W.2d 48. Metzner notes 

in his brief-in-chief that

 [t]he real question, however, left unaddressed, was whether 

Metzner’s abandonment of [the NGI] defense, along with his 

right to have a jury decide it, was truly voluntary and intelligent. 

On this front it is notable, even if not dispositive, that the plea 

colloquy never covered the import of withdrawing an NGI plea. 

State v. Burton, 2013 WI 61, ¶¶83-84, 349 Wis. 2d 1, 832 

N.W.2d 611 (strongly recommending that plea colloquies 

expressly address withdrawals of NGI pleas).

Aside from this paragraph, Metzner does not develop this argument, see State v. Pettit, 171 

Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992), and his focus on appeal as it relates to the 

NGI plea was clearly on his ineffective assistance of counsel claim.

(continued)
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Felony Bail Jumping

¶23 Metzner also argues that he was improperly convicted and sentenced 

on felony bail jumping charges. On appeal, Metzner advances two different 

arguments on this issue: ineffective assistance of counsel and an inadequate 

factual basis for the bail jumping convictions. We address both arguments below.

¶24 First, Metzner claims that his counsel’s failure to recognize that he 

was improperly charged with a felony was deficient performance that prejudiced 

him “because it ended with him being wrongfully charged and convicted of felony

bail jumping.” As noted in footnote seven, Metzner pled to two counts of felony 

interfering with fire fighting under WIS. STAT. § 941.12(1), which requires that a

person “intentionally interfere[] with the proper functioning of a fire alarm 

system.” The State agreed that Metzner should have been charged under 

§ 941.12(2)—a misdemeanor. The circuit court ordered that the convictions on 

those counts be vacated and the charges dismissed. While acknowledging that 

 

We do note that the circuit court engaged Metzner in a proper plea colloquy. The court 

confirmed that Metzner had gone over the plea questionnaire and waiver of rights form with his 

attorney, that he understood it, that he understood the constitutional rights he was giving up, that 

he went over the elements of the crime for each of the cases he was pleading to with his attorney 

and he understood those elements, and that no one threatened him. Metzner was, in his words, 

“emotionally distressed” at the plea hearing, but he stated, “I understand I need to own up to the 

mistakes I’ve made, and I’m sorry.” In response, the court paused the hearing twice to give 

Metzner time to speak with his attorney off the record, even leaving the courtroom at one point so 

Metzner could talk to counsel in private. Metzner then confirmed that he did not need more time 

to talk to his attorney, that he was prepared to proceed, and that he was satisfied with counsel’s 

representation. The court determined that the criminal complaints supported Metzner’s pleas and 

noted that “although [Metzner was] distressed by these proceedings, understandably, [he did] 

understand them” and that Metzner was “found to be competent.” The court concluded that 

Metzner entered his pleas “freely, voluntarily, and intelligently.”
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those convictions were vacated, Metzner argues that “counsel’s failure to 

recognize he was wrongfully charged with felonies” constituted deficient 

performance and the prejudice was “not fully rectif[ied]” by vacating those 

convictions.

¶25 We conclude that Metzner has failed to prove prejudice. See

Strickland, 466 U.S. at 697 (noting that we need not address both prongs of the 

analysis if the defendant does not make a sufficient showing on one of them). The 

focus of Metzner’s argument is that “had defense counsel done her job, the felony 

charges under [WIS. STAT. §] 941.12 could never have survived a preliminary 

hearing, and Metzner could never have been released on felony bail” and he could

not later have been charged with felony bail jumping. To prevail on an ineffective 

assistance of counsel claim sufficient to establish that plea withdrawal is necessary 

to correct a manifest injustice, Metzner must prove that: (1) he was denied the

effective assistance of counsel; (2) counsel’s error “caused him to plead guilty”

11; 

and (3) at the time of the plea, he was unaware of a potential challenge to the plea 

due to counsel’s deficient performance. See State v. Harris, 2004 WI 64, ¶11, 272 

Wis. 2d 80, 680 N.W.2d 737 (emphasis added); see also State v. Cooper, 2019 WI 

73, ¶29, 387 Wis. 2d 439, 929 N.W.2d 192 (“[T]he prejudice component 

specifically requires that ‘the defendant must show that there is a reasonable 

probability that, but for counsel’s errors, he would not have pleaded guilty and 

would have insisted on going to trial.’” (citation omitted)). 

 

11

 “We interpret the ‘cause’ element of the test ... to mean that a defendant must 

demonstrate that he would not have pled guilty but for the constitutional violation.” State v. 

Harris, 2004 WI 64, ¶11 n.7, 272 Wis. 2d 80, 680 N.W.2d 737 (emphasis added).
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¶26 Metzner has not alleged or proven that counsel’s purported deficient 

performance caused him to plead guilty. In other words, but for counsel’s error, 

he would have rejected the global plea offer and gone to trial had the interfering 

with fire fighting charges been reduced to misdemeanors and, as a result, the bail 

jumping counts been charged as misdemeanors rather than felonies. Metzner’s 

only response is that he “has proven, and the State does not dispute, that but for 

counsel’s deficient performance, the bail jumping convictions would have been 

misdemeanors, not felonies.” But that fact does not prove that he would not have 

pled guilty and, thus, does not establish prejudice under the law. Metzner 

understood his situation and why he was entering his pleas; as he explained at the 

plea hearing, “[b]asically my understanding is it would be pointless to go to jury 

trial ‘cuz I know what I’ve done, like. I’m not going to sit here like an idiot, and 

I’m not going to play the Court for a fool.” Metzner does not dispute that he 

would still have faced charges for multiple misdemeanors in addition to the other 

felony charges, and he has not claimed that he would have gone to trial on all

those charges but for counsel’s error.

¶27 In the alternative, Metzner argues that if we fail to find ineffective 

assistance of counsel, “there were inadequate factual bases for the bail jumping 

convictions” as he was never released from custody on bond. A guilty plea must 

be supported by a factual basis, and failure to establish a factual basis for a crime 

to which the defendant has pled constitutes a manifest injustice warranting plea 

withdrawal. See Thomas, 232 Wis. 2d 714, ¶17. Therefore, before accepting the 

plea, the court must confirm that the facts supporting the charge actually constitute 

the offense to which the defendant is about to plead. WIS. STAT. § 971.08(1)(b);
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State v. Bangert, 131 Wis. 2d 246, 262, 389 N.W.2d 12 (1986). “[A] factual basis 

for a plea exists if an inculpatory inference can be drawn from the complaint or 

facts admitted to by the defendant even though it may conflict with an exculpatory 

inference elsewhere in the record and the defendant later maintains that the 

exculpatory inference is the correct one.” State v. Black, 2001 WI 31, ¶16, 242 

Wis. 2d 126, 624 N.W.2d 363. “[I]n the context of a negotiated guilty plea, ... a 

court ‘need not go to the same length to determine whether the facts would sustain 

the charge as it would where there is no negotiated plea.’” State v. Smith, 202 

Wis. 2d 21, 25, 549 N.W.2d 232 (1996) (citation omitted). “The determination of 

the existence of a sufficient factual basis lies within the discretion of the trial court 

and will not be overturned unless it is clearly erroneous.” Id.

¶28 Under State v. Hansford, 219 Wis. 2d 226, 244, 580 N.W.2d 171

(1998), three elements must be met for a bail jumping conviction: “(1) the 

individual must have been arrested for, or charged with, a felony or misdemeanor; 

(2) the individual must be released from custody on bond; and (3) the individual 

must have intentionally failed to comply with the terms of his or her bond.” See 

also WIS JI—CRIMINAL 1795. Metzner argues that he was “never released from 

custody on a felony charge.”

¶29 At both plea hearings, the circuit court found that the criminal 

complaints provided a factual basis for Metzner’s pleas. While Metzner does not 

specify which bail jumping convictions he identifies as unsupported by sufficient 

evidence, we note that all the complaints alleged that Metzner was given signature 

bonds in case Nos. 2015CF618, 2015CF680, and/or 2015CF730 “with the 

standard conditions, one of which was not to engage in criminal activity while out 
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on bond.” Metzner does not point to any evidence in the record establishing that 

this was not the case. Pursuant to those signature bonds, Metzner was effectively 

released from custody, and by signing the signature bonds “he therefore 

committed himself to its conditions.” See State v. Dewitt, 2008 WI App 134, 

¶¶14, 17, 313 Wis. 2d 794, 758 N.W.2d 201 (“‘[R]elease’ refers to the defendant 

posting the bond, be it signature or cash, and need not be accompanied by the 

defendant’s physical departure from the jailhouse.”). The circuit court’s finding 

that the complaints provided a factual basis for the plea was not clearly 

erroneous.

12

 

12

 Metzner’s arguments are outlined in his briefs into an ineffective assistance of counsel 

claim and an insufficient factual basis claim based on his release from custody on bond, pursuant 

to the second element of bail jumping under State v. Hansford, 219 Wis. 2d 226, 244, 580 

N.W.2d 171 (1998). To the extent Metzner means to argue that because the felony convictions 

for interference with fire fighting were vacated on postconviction review, he could not have been 

charged with felony bail jumping, Metzner has failed to develop this argument and does not cite 

any authority to support his claim. See Pettit, 171 Wis. 2d at 646-47. The State was only 

required to establish that Metzner was arrested for or charged with a felony. See Hansford, 219 

Wis. 2d at 244; see also State v. Merryfield, 229 Wis. 2d 52, 60-64, 598 N.W.2d 251 (Ct. App. 

1999) (explaining that the purpose of requiring a factual basis “is not to resolve factual disputes 

about what did or did not happen at or before the time of the alleged offense—that is the function 

of a trial, which a defendant who pleads other than not guilty expressly waives”). Metzner also 

does not challenge the validity of the charges for the new crimes which gave rise to the bail 

jumping charges. See Hansford, 219 Wis. 2d at 245.

Likewise, Metzner makes an undeveloped argument that he had already entered pleas in

case Nos. 2015CF680 and 2015CF730 when he picked up the bail jumping charge in case 

No. 2016CF80, so “[t]o the extent that the fiction of ‘Metzner out on bail’ is deemed to have 

survived that plea hearing, such would constitute [ineffective assistance of counsel], since it was 

abundantly clear by that time that Metzner was extremely vulnerable to bail jumping charges.” 

Metzner’s argument on this issue is conclusory and is unsupported by legal authority, and we 

address it no further. See Pettit, 171 Wis. 2d at 646-47.
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Felony Escape

¶30 Metzner next argues that the record fails to establish an adequate 

factual basis for a completed felony escape, and, thus, Metzner should be allowed 

to withdraw his plea to that charge. We disagree.

¶31 Metzner pled guilty to escape pursuant to WIS. STAT. § 946.42(3)(a). 

That statute provides that “[a] person in custody who intentionally escapes from 

custody under any of the following circumstances is guilty of a Class H felony: 

(a) Pursuant to a legal arrest for, lawfully charged with or convicted of or 

sentenced for a crime.” Sec. 946.42(3)(a) (emphasis added). Metzner does not 

dispute that he was legally arrested for this crime, but he argues that the question 

is whether he “intentionally escape[d].”

¶32 The escape occurred when Metzner was “allowed to exit” the 

“isolation cell” to take a shower under the supervision of the correctional sergeant. 

Metzner assaulted the sergeant and then left the hallway where the showers were 

located via a door and entered a second hallway. According to Metzner, he “did 

not go through any locked door and thus never left a secure area. He went from 

one hallway to another, and this was not an adequate factual basis for the charge of 

‘Escape.’” At most, Metzner argues, it was an unsuccessful attempted escape. 

Metzner cites to State v. Sugden, 143 Wis. 2d 728, 422 N.W.2d 624 (1988), 

comparing Sugden’s escape to the circumstances of his own.

¶33 In Sugden, the question before the court was whether “Sugden 

escape[d] the custody of the institution” when he did not leave the confines of the

outer walls. Id. at 730. There, the defendant and other inmates overpowered 
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guards in the locked Wisconsin Cottage at the Kettle Moraine Correctional 

Institution, forced the guard to unlock the exterior door, stole a station wagon, and 

used the vehicle to “smash[] through” the main gate of the institution “but was upended in the area between the inner gate and the outer perimeter of the sally port.” 

Id. at 731-32. The court concluded that

“custody” per se of an institution is not directly related to 

its geographical outer boundaries. There may be custody 

without the walls and custody of various kinds, without 

limitation, within the walls. Hence, from the face of the 

statute as juxtaposed against the facts here, it is apparent 

that the locked cottage where Sugden was held constituted 

“custody of the institution.” When he intentionally left that 

custody without lawful authority, his crime of escape was 

complete.

Id. at 737.

¶34 Metzner suggests that his situation and that of Sugden are different 

only because Sugden went out a locked door, but we see nothing in the court’s 

decision indicating that is a requirement. In fact, the court explained that “[i]t is 

equally clear from the examples in the statute that custody of an institution may 

exist within the perimeters of an institution because of special treatment that is 

given to particular inmates.” Id. at 736-37. Metzner was being held in an 

isolation cell, and he was only allowed outside the locked isolation cell in the 

presence of the correctional sergeant to use the shower. When he assaulted the 

sergeant and left the shower and isolation area via a doorway into another hallway 

without permission, an appropriate inference is that he left the “custody of the 

institution” based on his “special treatment” in isolation. See id. at 737; see also

Black, 242 Wis. 2d 126, ¶16 (“[A] factual basis for a plea exists if an inculpatory 

inference can be drawn from the complaint or facts admitted to by the defendant 
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even though it may conflict with an exculpatory inference elsewhere in the record 

and the defendant later maintains that the exculpatory inference is the correct one. 

This is the essence of what a defendant waives when he or she enters a guilty or no 

contest plea.” (citation omitted)). Thus, the complaint in this case establishes a 

sufficient factual basis for Metzner’s guilty plea to the escape charge.

Eighth Amendment

¶35 Finally, Metzner argues that his Eighth Amendment rights were 

violated. He explains that “a prison sentence of seventeen years, given the 

devastating effects of segregation/isolation on mentally ill inmates, is cruel and 

unusual under the facts of this case.” Metzner claims “he was held to account for 

what could have been avoided”—had he been moved to a “secure psychiatric 

facility where he could access appropriate diagnosis and treatment”—“by having 

17 years of his life taken from him.” It is this entire set of circumstances that 

Metzner posits was cruel and unusual. In essence, then, Metzner is not arguing 

that his sentence alone was cruel and unusual, as he admits that his sentence was 

not disproportionate to the crimes he committed; instead, he claims that his 

sentence was cruel and unusual only due to the circumstances of his pretrial 

detention.

¶36 We conclude that Metzner has failed to establish a violation of his 

Eighth Amendment rights. We note that, based on our reading of Metzner’s 

arguments, he does not argue that his Eighth Amendment rights were violated by 

his pretrial detention, as pretrial detention does not implicate the Eighth 
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Amendment and would instead be considered under the Fourteenth Amendment’s 

Due Process Clause. See Bell v. Wolfish, 441 U.S. 520, 535 & n.16 (1979).

¶37 In support of his position, Metzner cites to Berge, 164 F. Supp. 2d at 

1117, and Gillis v. Litscher, 468 F.3d 488, 490-91 (7th Cir. 2006), noting that 

“there are uncanny similarities [between] the conditions of confinement Metzner 

experienced” and those of the inmate in Gillis. Gillis and Berge, however, are 

42 U.S.C. § 1983 cases—civil actions, and the plaintiffs challenging their 

conditions of confinement were inmates at the Wisconsin Secure Program Facility 

in Boscobel, the highest-security prison—not pretrial detainees. See Gillis, 468 

F.3d at 489; Berge, 164 F. Supp. 2d at 1098. Despite these case citations, Metzner 

clarifies that his claim is not against SCDC for cruel or unusual punishment. 

Instead, Metzner’s argument is that his “prison sentence of seventeen years ... is 

cruel and unusual under the facts of this case.” (Emphasis added.)

¶38 The Eighth Amendment to the United States Constitution13 provides: 

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and 

unusual punishments inflicted.”

“[W]hat constitutes adequate punishment is ordinarily left 

to the discretion of the trial judge. If the sentence is within 

the statutory limit, appellate courts will not interfere unless 

clearly cruel and unusual.” A sentence is clearly cruel and 

unusual only if the sentence is “so ‘excessive and unusual, 

and so disproportionate to the offense committed, as to 

shock public sentiment and violate the judgment of 

 

13

 The protections of the Eighth Amendment are made applicable to the states through 

the Fourteenth Amendment. State v. Ninham, 2011 WI 33, ¶45, 333 Wis. 2d 335, 797 N.W.2d 

451.
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reasonable people concerning what is right and proper 

under the circumstances.’”

State v. Ninham, 2011 WI 33, ¶85, 333 Wis. 2d 335, 797 N.W.2d 451 (alteration 

in original; citations omitted). “A sentence well within the limits of the maximum 

sentence is not so disproportionate to the offense committed as to shock the public 

sentiment and violate the judgment of reasonable people concerning what is right 

and proper under the circumstances.” State v. Berggren, 2009 WI App 82, ¶47, 

320 Wis. 2d 209, 769 N.W.2d 110 (citation omitted). We independently review 

whether Metzner’s sentence is cruel and unusual punishment. See Ninham, 333 

Wis. 2d 335, ¶44.

¶39 Here, when we compare Metzner’s sentence to the maximum that 

the circuit court could have imposed, we conclude that Metzner’s sentence was not 

cruel and unusual. Metzner’s sentence of seventeen years’ initial confinement and 

seventeen years’ extended supervision was well below both the aggregate 

maximum penalties for the charges that he pled to as well as the over 140 years he 

was facing prior to the plea agreement. 

¶40 To the extent that Metzner means to argue that his sentence, 

considering his circumstances at SCDC, should “shock public sentiment and 

violate the judgment of reasonable people,” we disagree. See id., ¶85 (citation 

omitted). Metzner claims that “a sentence of 17 years under the facts of this case, 

with virtually no regard for how his mental health problems interfaced with the 

charges for which he was being sentenced, truly offends society’s standards of 

decency.” See id., ¶46. Metzner, however, fails to cite any legal authority in 

support of his position, aside from these conclusory statements.
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¶41 We recognize that, based on the record, Metzner clearly has some 

mental health concerns, and we acknowledge that the circumstances of this case,

wherein he continued to collect charges while in isolation at SCDC, is symbolic of 

the inherent problems of mental health in the criminal justice system. But we 

disagree that there was “virtually no regard for how his mental health problems 

interfaced with the charges.” At sentencing, trial counsel focused on Metzner’s

mental health and time in isolation. The circuit court also touched on this, but 

acknowledged that the proper sentencing considerations, see State v. Gallion, 

2004 WI 42, ¶44, 270 Wis. 2d 535, 678 N.W.2d 197, weighed in favor of “some 

pretty serious periods of incarceration.” During the period from May 2015 to 

February 2016, Metzner amassed fifty-three charges and beat a correctional 

sergeant. He admitted to the PSI writer that he committed these offenses “because 

of the way he was treated” and that “he [was] not remorseful for his actions.”14 

Thus, we conclude that his sentence was well within the limits of the maximum 

sentence and not so disproportionate to shock public sentiment and that Metzner 

has failed to establish an Eighth Amendment violation.

By the Court.—Order affirmed.

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

RULE 809.23(1)(b)5.

 

14

 Metzner did state to the PSI writer that he was “remorseful” for “assaulting” the 

sergeant, but the sergeant also “explained that [Metzner] has made unnecessary comments to him 

since the incident.”