COURT OF APPEALS

DECISION

DATED AND FILED

May 1, 2024

Samuel A. Christensen

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. 2023AP1706 Cir. Ct. No. 2018FA296

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

IN RE THE FINDING OF CONTEMPT IN:

IN RE THE MARRIAGE OF:

JULIE C. VALADEZ,

 PETITIONER-APPELLANT,

STATE OF WISCONSIN,

 RESPONDENT,

 V.

RICARDO VALADEZ,

 RESPONDENT.

APPEAL from orders of the circuit court for Waukesha County: 

RALPH M. RAMIREZ, Judge. Reversed and cause remanded with directions. 
No. 2023AP1706

2

¶1 GUNDRUM, P.J.1 Julie C. Valadez appeals from the circuit court’s 

order finding her in contempt for failing to comply with an order to pay child 

support and from the court’s order denying her postdisposition motion to vacate 

the contempt order. She contends she was “constructively denied the assistance of 

counsel,” or alternatively, that she was “denied the effective assistance of counsel.”

(Emphasis added). Because respondents State of Wisconsin and Ricardo Valadez 

concede (by lack of opposition) that she was constructively denied representation 

by counsel at the contempt hearing, we must reverse and remand for a new 

hearing.

Background

¶2 On July 8, 2022, the circuit court entered an order requiring Valadez

to pay Ricardo child support in the amount of $137 per month, which consisted of 

$12 per month in child support (due to an offset) and $125 per month towards 

health insurance for their children. After several months of Valadez failing to 

make any payments, the State filed an affidavit in support of an order to show 

cause why Valadez should not be held in contempt for her failure.2 

¶3 At the January 3, 2023, contempt hearing, counsel appointed by the 

public defender’s office appeared for Valadez, but Valadez did not. The State 

introduced a document purporting to show Valadez’s failure to make required 

 

1

 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(h) (2021-22). 

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.

2

 Valadez herself had filed several motions, all of which were scheduled to be heard on 

the same date as the contempt hearing. The circuit court dismissed all of those motions due to her 

failure to appear at the hearing. We note that the record indicates appointed counsel’s 

representation of Valadez in court that day was limited to the contempt matter; it did not include 

representing her on the other motions. 
No. 2023AP1706

3

payments. Through a series of leading questions to which counsel for Valadez did 

not object, the State led Ricardo to testify that the document shows that Valadez

had failed to make required child support payments or arrears payments for the 

several months leading up to the hearing. Ricardo further testified he had not 

received any child support payments from Valadez. Led by the State, Ricardo 

agreed that, according to the document, Valadez owes him $1,636.57. 

¶4 When asked if she had any questions to ask Ricardo, counsel for 

Valadez responded, “No.” When asked if she had any objection to the State’s 

document being admitted into evidence, counsel responded, “No objection.” After 

the State rested its case, the circuit court asked counsel for Valadez if she had any 

witnesses to present, and counsel responded, “I do not have any witnesses.”

¶5 The circuit court then turned to the parties for closing arguments. 

The State provided a closing argument covering approximately one and one-half

pages of the transcript, including “I don’t believe there are any arguments before 

the [c]ourt at this time or any evidence before the [c]ourt at this time that 

Ms. Valadez has an inability to pay.” The State requested that the “purge in this 

matter be set at $685.00 ... with the understanding [Valadez] would never need to 

make that lump sum payment as long as regular child support and arrears 

payments are coming in each month.” The State also requested eighty dollars in 

“service fees” “based on the State’s attempt to serve Ms. Valadez personally with 

the action.” 

¶6 When the circuit court asked counsel for Valadez if she had a 

closing argument, she responded, “Your Honor, I don’t have any additional 

information to provide the [c]ourt at this time with Ms. Valadez not being 

present.” The court then asked, “You have nothing else to offer at this time?” and 
No. 2023AP1706

4

counsel responded, “No, I do not. I would put on the record that Ms. Valadez did 

file her own motion on November 7th of 2022, document number 1157, but I do 

not have any additional comments as to that motion.” 

¶7 The circuit court noted that Valadez was not in court, which put her 

counsel “at a disadvantage,” adding that “[t]here is little [counsel] can do under 

the circumstances.” The court found that Valadez

is very, very much cognizant of the child support order. 

She has opposed it, contested it, and challenged it in any 

number of ways. There isn’t anything on this record that 

would demonstrate to the [c]ourt that she has any 

impediment to working or garnering some wages to pay 

child support.

 She has exhibited an intelligence in her writings. She 

has exhibited the ability to put forward a substantial 

amount of work product in terms of pages. There isn’t 

anything on the record that I would know or understand to 

indicate that she does not have an ability to pay child 

support.

The court imposed a “thirty day jail term with work and treatment release” but 

stayed it “for two years with a purge amount of $685.00 and continued payment of 

child support.” The court also imposed the eighty dollars in service fees, to be 

paid within two months of the hearing. When the court asked counsel for Valadez

if there was anything else, counsel responded, “No, thank you.”

¶8 Represented by an assistant state public defender, Valadez filed a 

postdisposition motion requesting that the circuit court vacate the contempt order 

and hold a new contempt hearing because 

 [t]rial counsel failed to function as the counsel

guaranteed to Ms. Valadez—she failed to subject the State 

to any sort of adversarial testing. Further, she failed to 

request permission to withdraw from representation or 

argue for revision of the child support order. 
No. 2023AP1706

5

Consequently, Ms. Valadez was denied the effective 

assistance of counsel ....

Among other arguments, Valadez asserted that the child support order requiring 

her to contribute $125 per month to Ricardo for the children’s health insurance

was invalid. This requirement was invalid, according to Valadez, because the 

circuit court had previously imputed income of $1,099 per month to her, which 

was less than 150% of the federal income level for a family of one in 2022, and

thus, “[u]nder Wisconsin Administrative Code DCF § 150.05(1)(c), ... [she] could 

not be ordered to contribute towards the cost of health insurance for the children.” 

¶9 At the hearing on the motion, contempt counsel testified that she 

“had one or two phone calls with [Valadez] and e-mail communications” prior to 

the contempt hearing. Counsel also stated that when she asked Valadez about her 

contempt case, Valadez “indicated that she would feel more comfortable if [lead 

public defender] Attorney Jeremy Perri was included in the phone call from the 

public defender’s office.” Counsel “attempted to ask [Valadez] about the order to 

show cause but she would not talk about it without Attorney Perri there.”3

Counsel indicated she did not recall the substance of her e-mail communications 

with Valadez. Counsel testified she had obtained no information related to the 

order to show cause for contempt “other than what was in the State’s affidavit and 

what was previously in [Valadez’s] file.” Counsel indicated she received no 

information about Valadez’s ability to pay child support, her education level, her 

employment status, her ability to work, or her location at the time counsel 

 

3

 The transcript indicates that postdisposition counsel then asked contempt counsel: 

“She was then willing to speak with you without Attorney Perri also being on the call?” 

Contempt counsel responded, “Yes.” In light of the context leading up to this question and 

answer, we assume postdisposition counsel actually asked contempt counsel if Valadez was 

“unwilling” or “not willing” to speak with her without Attorney Perri also being on the call. 
No. 2023AP1706

6

contacted her. Counsel did not recall if she asked Valadez if she was planning to 

appear for the contempt hearing. 

¶10 Contempt counsel agreed that in e-mail communications with 

postdisposition counsel, contempt counsel informed postdisposition counsel that

Valadez did not provide contempt counsel with any information. Contempt 

counsel also indicated in her e-mails with postdisposition counsel that Valadez 

was “unwilling to speak with [contempt counsel] and believed her prior attorney 

should have been on her case.” When asked, “And despite having no information, 

you appeared at the contempt hearing and informed the [c]ourt that you were 

ready to proceed,” counsel responded, “Yes.” When asked, “At any time after 

your appointment, did you consider moving to withdraw as counsel,” counsel 

responded, “She never asked me to withdraw, so no.” Counsel acknowledged she 

had reviewed the order to show cause prior to the contempt hearing and that it 

“requested sanctions, as well as any and all relief the [c]ourt deems fair and 

equitable under the circumstances including review or modification of the child 

support order.”

¶11 Contempt counsel indicated she believed she had reviewed the child 

support order prior to the contempt hearing, and she agreed she had “reviewed 

Ms. Valadez’s pro se motion to dismiss the contempt arguing that the child 

support order was improper.” Counsel indicated she did not consider asking the

court to review or modify the child support order because “in my practice when I 

attend the order to show cause hearings, typically they will not address a motion to 

modify support without a proper filing and notice.” When asked, “And you don’t 

think the State’s filing was proper for that,” counsel responded, “No.” When 

asked if she “consider[ed] arguing that the child support order was improper 

because Ms. Valadez cannot be ordered to contribute to the cost of health 
No. 2023AP1706

7

insurance,” counsel responded, “No.” When further asked if she “considered 

arguing that [Valadez] should not have been ordered to pay child support 

retroactive to November 1st of 2021,” counsel responded, “No.” 

¶12 When asked on cross-examination if Attorney Perri was ever on a 

phone call with her and Valadez, counsel responded, “No. I had sent him an 

e-mail asking him if he would join a phone call with us and I didn’t receive a 

response from him until the day after our hearing.” In his response, Perri 

“forwarded [counsel] multiple e-mails that Ms. Valadez had sent him that I did not 

receive, basically asking what his process was and how he appoints attorneys to 

cases.” Counsel stated she believed her representation of Valadez was very 

limited, relating only to the order to show cause, and that she did not believe she 

had a duty “to argue that the child support was incorrectly calculated.” She agreed 

that “Valadez would really have no communication with [counsel] or provide 

[counsel] with any information regarding why she should not be found in 

contempt for her failure to pay the $137.00 a month.” Counsel indicated that after 

her phone call with Valadez in which Valadez indicated she wanted Perri on the 

phone, counsel believes she may have called Valadez again and sent e-mails, but 

that Valadez was not responsive. On redirect examination, counsel again agreed 

that the order to show cause from the State asked “for any and all other relief, 

including review and/or modification of the child support order if the [c]ourt 

deems appropriate.” 

¶13 In closing arguments, postdisposition counsel argued that not only 

was Valadez denied the effective assistance of counsel, she was constructively 

denied the assistance of counsel because

 [a]s is clear from the transcript of the hearing, there was 

no adversary to the State at th[e] contempt hearing. 
No. 2023AP1706

8

[Contempt counsel] asked no questions of the witness. She 

presented no evidence of her own. She made no objections. 

And when it came time for argument, she made no 

argument against a finding of contempt. She didn’t even 

ask the [c]ourt not to find Ms. Valadez in contempt.

After substantive argument by counsel for Ricardo in opposition to Valadez’s 

postdisposition motion, the circuit court turned to the State for its closing 

argument, but the State responded: “The State would not take a position as it 

relates to the motion before the [c]ourt today. I don’t think it would be appropriate 

for the State to opine as to opposing [contempt] counsel’s performance. That 

would be the State’s position today.” When the court turned to the guardian ad 

litem for any comments, the GAL stated she had “[n]othing to add.” 

¶14 The circuit court denied Valadez’s postdisposition motion. It stated,

inter alia, that

[t]here was a valid court order ordering that she pay child 

support, that she pay it on a monthly basis. It was a valid 

court order ....

 Ms. Valadez had absented herself voluntarily at that 

time and continues to do so .... Obviously we didn’t hear 

from Ms. Valadez today, but what we do have ... is 

[contempt-counsel] telling us, in essence, that Ms. Valadez 

created and constructed a situation where she sent 

[contempt-counsel] to battle with no ammunition. No 

information. No knowledge. No ability to effectively, 

intelligently, nor honestly question witnesses when 

Ms. Valadez chose not to give her that information.

 So, I’m going to find on this record that there is not a 

constructive denial of the assistance of counsel but rather, 

quite honestly, there is a deliberate attempt ... to not give 

[contempt counsel] the information that she needed to be 

effective and that was on the doings of Ms. Valadez ....

 So, I cannot find constructive denial of the assistance of 

counsel but, rather, deliberate efforts on the part of 

Ms. Valadez to make sure that her attorney did not have 

information and could not prepare herself for the hearing.
No. 2023AP1706

9

 I can’t find that [contempt counsel’s] behavior was 

deficient because she simply didn’t have the resources, the 

information, the ammunition, or any ability to be effective 

as created by the doings of Ms. Valadez. 

Valadez appeals.

Discussion

¶15 Our supreme court has held that an indigent defendant in a contempt 

proceeding has a “constitutional due process right to appointed counsel” at public 

expense. State v. Pultz, 206 Wis. 2d 112, 119, 129, 556 N.W.2d 708 (1996). 

Whether this right has been violated is a question we review independently. State 

v. Tung, 2023 WI App 33, ¶19, 408 Wis. 2d 544, 993 N.W.2d 706.

¶16 On November 10, 2023, Valadez, by the same assistant state public 

defender who represented her on the postdisposition motion, filed her eighteenpage brief-in-chief in this appeal, arguing that the circuit court’s contempt order 

must be reversed and remanded for a new contempt hearing for either of two 

reasons: She was “constructively denied the assistance of counsel” at the 

contempt hearing or, alternatively, she was “denied the effective assistance of 

counsel” at the hearing. As to the first basis, Valadez presents a developed, 

approximately five-page argument based upon the United States Supreme Court’s 

decision in United States v. Cronic, 466 U.S. 648 (1984), as well as relevant 

Wisconsin published case law. Valadez’s alternative argument that her appointed

counsel performed ineffectively is approximately seven pages.

¶17 On January 3, 2024, Ricardo submitted a letter to this court advising 

he would not be filing a brief in response to that of Valadez. While Ricardo’s

letter states that “the [c]ircuit [c]ourt’s opinion was correct and supported by the 

record,” and he hoped it would be affirmed, it also states he “understands his 
No. 2023AP1706

10

failure to file a brief may result in a different decision.” On that same day, this 

court also received a letter from the State indicating, similar to its position at the 

postdisposition hearing, that it “takes no position with respect to Ms. Valadez’s 

appeal of the Order Denying Post Disposition Relief,” and that it would “not be 

filing a brief in this appeal.”

¶18 Apparently having had a change of heart, on January 11, 2024, the 

State did file a response brief. In its brief, however, the State responds only to 

Ms. Valadez’s alternative contention that she was denied the effective assistance of 

counsel; it develops no arguments in opposition to Valadez’s arguments that she 

was constructively denied the assistance of counsel. The State does not even 

mention Cronic or the related, published Wisconsin case law cited by Valadez in 

her brief-in-chief. 

¶19 It is well-known and well-established that arguments that are not 

contested are deemed conceded. Botdorf v. Krebsbach, 2013 WI App 99, ¶12 n.3, 

349 Wis. 2d 736, 837 N.W.2d 641 (“Unrefuted arguments are deemed admitted.”). 

As a result, we have no choice but to conclude that both Ricardo and the State 

have conceded that Valadez was constructively denied the assistance of counsel at 

the contempt hearing and that this matter must be remanded for a new contempt 

hearing.

¶20 As noted, in her brief-in-chief, Valadez develops her argument that 

she was constructively denied the assistance of counsel because her appointed 

counsel essentially did nothing to advocate for her at the contempt hearing. Such 

an argument is not common, as it is no doubt rare that defense counsel, even when 

representing the most challenging of defendants, puts forth no fight on behalf of 

his or her client. But that is her argument, following the line of cases starting with 
No. 2023AP1706

11

Cronic, which was released the same day as the much more familiar case of

Strickland v. Washington, 466 U.S. 668 (1984).

¶21 In Strickland, the United States Supreme Court expressed that “[t]he 

Constitution guarantees a fair trial through the Due Process Clauses, but it defines 

the basic elements of a fair trial largely through the several provisions of the Sixth 

Amendment,” including the provision stating that “the accused” has the right “to 

have the Assistance of Counsel for his defence.” Id. at 684-85; see U.S. CONST.

amend. VI. The Strickland Court further explained

[t]hat a person who happens to be a lawyer is present at 

trial ... is not enough to satisfy the constitutional command. 

The Sixth Amendment recognizes the right to the assistance 

of counsel because it envisions counsel’s playing a role that 

is critical to the ability of the adversarial system to produce 

just results. An accused is entitled to be assisted by an 

attorney, whether retained or appointed, who plays the role 

necessary to ensure that the trial is fair.

Strickland, 466 U.S. at 685.

¶22 As is well-known, Strickland established the standard for ineffective 

assistance of counsel, including the requirement that a defendant challenging 

counsel’s performance prove that it was both deficient and prejudicial. Id. at 687. 

The Strickland Court also recognized, however, that “[i]n certain Sixth

Amendment contexts, prejudice is presumed. Actual or constructive denial of the 

assistance of counsel altogether is legally presumed to result in prejudice,” 

because prejudice in such a circumstance “is so likely that case-by-case inquiry 

into prejudice is not worth the cost.” Id. at 692. The Court expanded on this 

principle in Cronic.

¶23 In Cronic, the Court explained that a defendant is constructively 

denied the assistance of counsel “if counsel entirely fails to subject the 
No. 2023AP1706

12

prosecution’s case to meaningful adversarial testing.” Cronic, 466 U.S. at 659.

“No specific showing of prejudice” is required in such a circumstance. Id. When 

considering whether a defendant has been constructively denied the assistance of 

counsel, a court must determine whether counsel “failed to function in any 

meaningful sense as the Government’s adversary.” Id. at 666. 

¶24 In Bell v. Cone, the Court emphasized that the Cronic principle 

applies only if counsel “entirely fails to subject the prosecution’s case to 

meaningful adversarial testing.” Bell, 535 U.S. 685, 697 (2002) (quoting Cronic, 

466 U.S. at 659). Absent an “entire[]” failure, a challenge based on counsel’s 

performance will instead fall under the ineffective assistance of counsel standard 

laid out in Strickland. See Bell, 535 U.S. at 695; see also State ex rel. Obriecht v. 

Thurmer, No. 2009AP1325, unpublished slip op. ¶41 (WI App Apr. 26, 2012) 

(“[E]ven if counsel presents just a partial defense, the Strickland test applies.”).

The Cronic Court recognized that 

[o]f course, the Sixth Amendment does not require that 

counsel do what is impossible or unethical. If there is no 

bona fide defense to the charge, counsel cannot create one 

and may disserve the interests of his client by attempting a 

useless charade. At the same time, even when no theory of 

defense is available, if the decision to stand trial has been 

made, counsel must hold the prosecution to its heavy 

burden of proof beyond reasonable doubt. 

Cronic, 466 U.S. at 656 n.19 (citation omitted).

¶25 Less than one year ago, we addressed Cronic, stating:

The Sixth Amendment requires that counsel act as an 

advocate for the defendant within an adversarial process—

maintaining “the right of the accused to require the 

prosecution’s case to survive the crucible of meaningful 

adversarial testing.” “[I]f the process loses its character as 

a confrontation between adversaries, the constitutional 

guarantee is violated.”
No. 2023AP1706

13

Tung, 408 Wis. 2d 544, ¶25 (citation omitted; alteration in original). Cognizant of 

the Cronic standard, we now consider the circumstances of the case before us and 

Valadez’s arguments regarding the same.

¶26 Based upon the transcripts of the contempt and postdisposition 

hearings, the circuit court correctly found that counsel’s ability to represent 

Valadez as effectively as possible at the contempt hearing was compromised by 

Valadez’s failure to appear at the hearing and her apparent lack of willingness to 

discuss the case with contempt counsel absent Attorney Perri also participating in 

such discussions. That said, in her brief-in-chief on appeal, Valadez argues that 

counsel still could have challenged the State’s contempt case but instead did 

nothing to this end. Valadez writes:

 Trial counsel’s failure in this case was complete; she 

failed to contest any part of the state’s case. Trial counsel 

made no objections. She did not cross-examine the state’s 

only witness. She failed to call any witnesses or present 

any evidence of her own. Finally, trial counsel made no 

argument against a finding of contempt. Aside from noting 

that she had no additional information for the court, and 

that Ms. Valadez had filed her own motion to dismiss, trial 

counsel said nothing. Trial counsel failed to act as an 

advocate for Ms. Valadez and the state’s case was met with 

no resistance or defense. The contempt hearing would have 

played out in exactly the same manner had trial counsel not 

been there at all.

Valadez further asserts that

counsel could have advanced Ms. Valadez’s arguments 

regarding the validity of the child support order or, at the 

very least, she could have used information in the court 

record regarding Ms. Valadez’s lack of employment history 

and low-income status to ask that the circuit court not find 

Ms. Valadez in contempt. Instead, trial counsel did nothing 

other than appear on Ms. Valadez’s behalf.
No. 2023AP1706

14

¶27 Like Valadez’s counsel who failed to contest the State’s position at 

the contempt hearing, on appeal, the State and Ricardo have failed to contest 

Valadez’s argument that she was constructively denied the assistance of counsel at 

that hearing. Indeed, the State did not even take a position at the postdisposition 

hearing.

¶28 Of note, we do not make an on-the-merits determination here that 

Valadez was in fact constructively denied counsel at the contempt hearing. 

Instead, we conclude that in her brief-in-chief, Valadez developed an argument

that she was, and neither the State nor Ricardo has provided any response. As a 

result, we conclude they have conceded Valadez’s argument that she was 

constructively denied the assistance of counsel at the contempt hearing. Again, it

is well-established law that “[a]rguments not rebutted on appeal are deemed 

conceded.” Shadley v. Lloyds of London, 2009 WI App 165, ¶26, 322 Wis. 2d 

189, 776 N.W.2d 838; see also Industrial Risk Insurers v. American Eng’g 

Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82 (“[W]e will 

not abandon our neutrality to develop arguments” for a party.).

¶29 In conclusion, because both Ricardo and the State have conceded 

that Valadez was constructively denied the assistance of counsel at the contempt 

hearing and thus that this matter must be remanded for a new contempt hearing, 

we so order.

By the Court.—Orders reversed and cause remanded with directions.

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

RULE 809.23(1)(b)4.