State v. Randal G. Rosenthal, Jr.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
January 31, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP1674 Cir. Ct. No. 2011CF544

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

RANDAL G. ROSENTHAL, JR.,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Outagamie County:
MITCHELL J. METROPULOS, Judge. Affirmed.

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

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2018AP1674

¶1 PER CURIAM. Randal Rosenthal, Jr., pro se, appeals an order
denying his WIS. STAT. § 974.06 (2019-20)1 motion for postconviction relief.
Rosenthal argues that he is entitled to a new trial on four grounds: (1) newly
discovered evidence; (2) the denial of the right to counsel at a critical stage of his
case; (3) prosecutorial misconduct; and (4) the ineffective assistance of both his
trial and postconviction counsel. For the reasons discussed below, we reject
Rosenthal’s arguments and affirm the order.

BACKGROUND

¶2 In August 2011, the State charged Rosenthal with first-degree
intentional homicide, arising from allegations that Rosenthal shot his mother,
Kathleen Remter, in the back of the head. Remter’s body was found floating in
the Fox River, near the Rapid Croche Dam. At trial, witnesses placed Rosenthal’s
car in the parking lot near the scene of the homicide. Rosenthal admitted he was
fishing with his mother on the day of her death. A bloodstain on Rosenthal’s jeans
contained his mother’s DNA. Further, Rosenthal was the beneficiary of a
$500,000 accidental death policy on his mother’s life, as well as a life insurance
policy worth approximately $86,000 as part of her employee benefits package.

¶3 The doctor who performed the autopsy opined that Remter was
killed by a bullet that came from a 9mm, .357 caliber, or .32 caliber firearm.
Rosenthal’s neighbor testified that Rosenthal, who lived in Brillion, showed him a
9mm gun earlier on the day of the shooting, and a 9mm Beretta was found eight
months later under a bush in a ditch near Brillion. One of Rosenthal’s fellow jail

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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inmates, Justin Douglas, testified that Rosenthal told him he shot his mother on the
river’s edge and threw her body in the river, hoping the current would drag her
body for a few days, giving him an opportunity to plan his story and remove any
evidence. According to Douglas, Rosenthal offered to pay Douglas, who was
planning to get out of jail soon, to dispose of the murder weapon. Douglas
provided this information to law enforcement in exchange for a more favorable
plea offer in his pending cases. A police officer confirmed that Douglas provided
information about the case that was not in the public record.

¶4 A jury found Rosenthal guilty of the crime charged, and the circuit
court imposed a life sentence but declared Rosenthal eligible for extended
supervision release beginning on July 23, 2061. In his direct appeal, Rosenthal
argued that the Denny rule2 was unconstitutional, both generally and as applied to
him. Specifically, Rosenthal asserted that the circuit court erred by preventing
him from admitting evidence that Remter’s boyfriend was a third-party suspect
who could have committed the murder. This court rejected Rosenthal’s arguments
and affirmed the judgment. See State v. Rosenthal, No. 2013AP1847-CR,
unpublished slip op. (WI App June 17, 2014).

¶5 Rosenthal subsequently filed the underlying WIS. STAT. § 974.06
motion for a new trial, asserting the following nine claims: (1) newly discovered
evidence consisting of two letters from Douglas; (2) the denial of his right to
counsel at a critical stage of the proceedings; (3) prosecutorial misconduct by

2
Under Denny’s “legitimate tendency” test, a defendant seeking to implicate a
third-party suspect must show the third-party’s motive, opportunity, and “some evidence to
directly connect a third person to the crime charged which is not remote in time, place or
circumstances.” State v. Denny, 120 Wis. 2d 614, 624, 357 N.W.2d 12 (Ct. App. 1984).

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referencing facts not in evidence during closing arguments; (4) ineffective
assistance of his trial counsel for failing to object to the prosecutor’s closing
arguments; (5) ineffective assistance of trial counsel for not moving to strike a
potentially biased juror; (6) ineffective assistance of trial counsel for failing to
gather testimony and evidence purportedly beneficial to his defense;
(7) ineffective assistance of his postconviction counsel for failing to discuss
potential appellate claims with Rosenthal; (8) ineffective assistance of
postconviction counsel for failing to obtain and investigate “numerous issues for
appeal” purportedly contained in a letter prepared by trial counsel; and
(9) ineffective assistance of postconviction counsel for failing to argue that trial
counsel was ineffective for failing to retain an expert witness to rebut the State’s
DNA and blood-spatter evidence.

¶6 Attached to the motion were several exhibits, including two letters
purportedly sent by Douglas after Rosenthal’s conviction. In the first letter,
addressed to Rosenthal, Douglas stated, “[I]t’s time to right my wrong,” and he
asked Rosenthal to arrange for a meeting between Douglas and both Rosenthal’s
sister and his wife. Douglas stated he would not discuss the matters by phone or
in letters and added that he was “never getting out now.” In the second letter,
addressed to Rosenthal’s sister, Tonya Borseth, Douglas stated: “First of all I’d
like to say that I’m very sorry that your brother’s where he’s at and together I hope
that we’re able to change this because he doesn’t belong in there.” Douglas asked
to speak with Borseth first to explain himself, and he volunteered to speak with
Rosenthal’s attorney thereafter “to get things onto the record so, that we can begin
this long process of helping your brother out.” The letter added that Douglas had
“done alot [sic] of stupid things in life” and he “made a vow to right all of [his]
past wrongs.” Douglas stated he would send Borseth visitation forms so she and

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Rosenthal’s attorney could be added to Douglas’s visitors’ list to “get this all
cleared up.”

¶7 The circuit court appointed counsel to represent Rosenthal with
respect to his WIS. STAT. § 974.06 motion. Based on a discussion with defense
counsel indicating that Rosenthal only wished to proceed on his newly discovered
evidence claim, the State informed the court that it would not respond to any of the
other claims advanced by Rosenthal in his § 974.06 motion. At a motion hearing,
Douglas stated he would not testify. Rosenthal testified that he believed the letter
written to him would impact a future trial, although he admitted the letter did not
actually say anything about Rosenthal’s original trial, nor could Rosenthal confirm
that Douglas actually wrote the letter. Borseth similarly testified that she received
a letter from Douglas that she interpreted as an expression of regret about
something he did.

¶8 During the hearing, defense counsel reminded the circuit court that
counsel was not going to make any arguments related to the remaining claims in
Rosenthal’s motion. According to counsel, Rosenthal wanted the court “to take
those under advisement and perhaps rule on those.” The court denied the motion
in its entirety, and this appeal follows.

DISCUSSION

¶9 On appeal, Rosenthal argues that the circuit court erred by
concluding that Douglas’s letters did not warrant a new trial. To obtain a new trial
based on newly discovered evidence, a defendant must prove: “(1) the evidence
was discovered after [his or her] conviction; (2) the defendant was not negligent in
seeking the evidence; (3) the evidence is material to an issue in the case; and
(4) the evidence is not merely cumulative.” State v. Plude, 2008 WI 58, ¶32, 310

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Wis. 2d 28, 750 N.W.2d 42 (citation omitted). Additionally, “[a] claim of newly
discovered evidence that is based on recantation also requires corroboration of the
recantation with additional newly discovered evidence.” State v. McAlister, 2018
WI 34, ¶33, 380 Wis. 2d 684, 911 N.W.2d 77. The corroboration requirement is
met if “(1) there is a feasible motive for the initial false statement; and, (2) there
are circumstantial guarantees of the trustworthiness of the recantation.” Id.

¶10 If the defendant makes the requisite showings, then the circuit court
must determine “whether a reasonable probability exists that had the jury heard the
newly discovered evidence, it would have had a reasonable doubt as to the
defendant’s guilt.” Plude, 310 Wis. 2d 28, ¶¶31-32. Whether there is a
reasonable probability that a new trial would produce a different result is a
question of law that we review independently. Id., ¶33. The decision to grant or
deny a motion for a new trial based on newly discovered evidence, however, is
committed to the circuit court’s discretion. Id., ¶31.

¶11 The State concedes that Rosenthal has likely satisfied the first two
criteria for newly discovered evidence—i.e., the letters were sent and, therefore,
discovered after Rosenthal’s conviction, and Rosenthal does not appear to have
been negligent in seeking out information that Douglas purportedly withheld.
With respect to the third criterion, Rosenthal argues that because Douglas was the
only witness who testified that Rosenthal admitted to the crime, letters suggesting
that he might recant his testimony were material to the case and to his credibility.
Rosenthal claims the fourth criterion is met because the letters were not
cumulative to other evidence. We are not persuaded.

¶12 The letters do not reference the trial or Douglas’s testimony.
Therefore, as the circuit court recognized, the evidence was speculative, leaving

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the court to guess about the purpose of the letters and their meaning. Although the
letters suggest that Douglas felt remorse for Rosenthal’s conviction, the letters do
not state that Douglas testified falsely or otherwise intended to recant his
testimony. Further, without knowing the meaning behind the letters, the court
could not determine if they would be cumulative to other trial evidence or
otherwise material to the case.

¶13 Even assuming the letters could be broadly interpreted as a
recantation, Rosenthal failed to show any corroboration of this purported
recantation. Instead, he argues, for the first time on appeal, that the State and his
appointed counsel should have investigated the letters and their meaning.
However, the burden was on Rosenthal, not the State, to prove that the letters
constituted newly discovered evidence. See Plude, 310 Wis. 2d 28, ¶32.

¶14 To the extent Rosenthal intimates that counsel appointed for the
WIS. STAT. § 974.06 proceedings was ineffective by failing to investigate the
letters, his argument fails. Rosenthal’s motion for postconviction relief pursuant
to § 974.06 is not a direct appeal from a conviction. Rather, a § 974.06 proceeding
is considered to be civil in nature, and it authorizes a collateral attack on a
defendant’s conviction. See § 974.06(6). “Defendants do not have a
constitutional right to counsel when mounting collateral attacks upon their
convictions.” State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 649, 579
N.W.2d 698 (1998). An ineffective assistance of counsel claim is premised upon
the right to counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). It
follows that there is no right to effective assistance of counsel in a collateral attack
context. In other words, Rosenthal cannot argue that he was deprived of the
effective assistance of an attorney when he had no constitutional right to that
assistance in the first place. Moreover, we need not address arguments raised for

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the first time on appeal. See State v. Huebner, 2000 WI 59, ¶¶10-12, 235 Wis. 2d
486, 611 N.W.2d 727. Because Rosenthal failed to establish that the letters
satisfied the criteria for newly discovered evidence, the circuit court properly
denied that portion of the motion.

¶15 Turning to the eight other arguments raised in Rosenthal’s
WIS. STAT. § 974.06 motion, Rosenthal alleged six claims of ineffective assistance
of either his trial or postconviction/appellate counsel. Additionally, Rosenthal
alleged prosecutorial misconduct during closing arguments and, based on his
assertion that Douglas was acting as a government agent, Rosenthal argued that he
was denied the right to counsel during his conversations with Douglas. Because
Rosenthal has not established that the latter two claims were raised and, therefore,
preserved by trial counsel, we conclude all eight claims must be examined under
the rubric of ineffective assistance of counsel.

¶16 It is a prerequisite to a claim of ineffective assistance of counsel to
preserve counsel’s testimony at a hearing. See State v. Machner, 92 Wis. 2d 797,
804, 285 N.W.2d 905 (Ct. App. 1979). By failing to call his attorneys to testify at
the motion hearing, Rosenthal forfeited any claim of ineffective assistance of
counsel. See State v. Mosley, 201 Wis. 2d 36, 50, 547 N.W.2d 806 (Ct. App.
1996). To the extent Rosenthal faults the circuit court for failing to order a
Machner hearing, the court placed no limitations on which witnesses Rosenthal
could call to testify at his postconviction motion hearing.

¶17 Even if we were to ignore the forfeiture of Rosenthal’s remaining
claims, we would conclude that these claims are procedurally barred. WISCONSIN
STAT. § 974.06(4) requires defendants “to consolidate all their postconviction
claims into one motion or appeal.” State v. Escalona-Naranjo, 185 Wis. 2d 168,

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178, 517 N.W.2d 157 (1994). Successive motions and appeals are procedurally
barred unless the defendant can show a sufficient reason as to why the newly
alleged errors were not previously raised. Id. at 185. We determine the
sufficiency of a defendant’s reason for circumventing Escalona-Naranjo’s
procedural bar by examining the “four corners” of the subject postconviction
motion. See State v. Allen, 2004 WI 106, ¶27, 274 Wis. 2d 568, 682 N.W.2d 433.

¶18 “In some instances, ineffective assistance of postconviction counsel
may be a sufficient reason for failing to raise an available claim in an earlier
motion or on direct appeal.” State v. Romero-Georgana, 2014 WI 83, ¶36, 360
Wis. 2d 522, 849 N.W.2d 668. To establish ineffective assistance of counsel,
Rosenthal must show that his counsel’s performance was deficient and that he
suffered prejudice as a result of that deficiency. See Strickland, 466 U.S. at 687.
Further, when challenging postconviction counsel’s selection of issues on appeal,
a defendant must prove that the claims he or she now seeks to raise are clearly
stronger than the claims raised by postconviction counsel. Romero-Georgana,
360 Wis. 2d 522, ¶¶45-46.

¶19 Rosenthal contends that his postconviction counsel performed
deficiently by failing to discuss all possible bases for appeal before pursuing
Rosenthal’s direct appeal. However, Rosenthal’s WIS. STAT. § 974.06 motion did
not explain how his new claims are clearly stronger than the arguments that were
made in his direct appeal. Based on Rosenthal’s failure to draw these mandatory
comparisons, see Romero-Georgana, 360 Wis. 2d 522, ¶6, the circuit court
properly denied his remaining claims.

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By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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