State v. Daniel D. Sease

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.
February 15, 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. 2021AP1477-CR Cir. Ct. No. 2015CF218

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DANIEL D. SEASE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Fond du Lac County: PETER L. GRIMM, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Grogan, 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. 2021AP1477-CR

¶1 PER CURIAM. Daniel D. Sease appeals from a judgment of
conviction for two counts of strangulation and a single count of misdemeanor
battery, all as a habitual criminal pursuant to WIS. STAT. § 939.62(1) (2011-12).1
He also appeals from an order denying postconviction relief. Sease argues the
additional strangulation count was added as retribution for his obtaining plea
withdrawal in an earlier case that was based on the same course of criminal
conduct. He also argues the State failed to prove the applicability of the habitual
criminality penalty enhancer at sentencing. We conclude the State has rebutted
any presumption of vindictive prosecution. We also conclude Sease’s admission
on his trial date that he was a habitual criminal relieved the State of its obligation
to prove that status at sentencing. Accordingly, we affirm.

BACKGROUND

¶2 Sease was charged in Fond du Lac County Circuit Court case
No. 2011CF415 with second-degree sexual assault, aggravated battery, and
strangulation, all as a habitual criminal. Sease entered into a plea agreement with
the State and pled guilty to the strangulation and battery offenses with the habitual
criminality penalty enhancers. In 2014, the circuit court granted Sease’s motion
for plea withdrawal, finding the plea was predicated on Sease’s attorney’s promise
to support a claim of ineffective assistance of counsel if Sease should later wish to
withdraw his pleas. In 2015 the State sought to dismiss case No. 2011CF415
without prejudice, electing instead to file a superseding Complaint based on the
same course of criminal conduct. The court granted the motion.

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

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No. 2021AP1477-CR

¶3 The new Criminal Complaint, filed in connection with the present
Fond du Lac County Circuit Court case number, reduced the severity of the battery
charge to a misdemeanor offense, added two kidnapping counts, and split the
strangulation charge into two separate counts. The factual allegations were the
same as in the prior case: that on October 30, 2011, Sease, while heavily
intoxicated, interrogated his then-girlfriend Jennifer2 about his belief that she had
been talking to another man. He met Jennifer at her residence in Menasha and
transported her to his residence in Fond du Lac, slapping her and pulling her hair
on the way. In Fond du Lac, Sease threatened to kill her, beat her with his fists
and with a bottle, and repeatedly strangled her until she began to gag. Later, at a
motel, Sease beat Jennifer again, at one point striking her so hard that she
wondered if he had knocked her eye out of its socket. In the motel bathroom,
Sease made Jennifer watch him strangle her in the mirror, where Jennifer saw that
her own lips were turning purple. Jennifer further alleged that after Sease released
her, he got on top of her and had sexual intercourse with her. Jennifer told police
she did not consent to the intercourse, but was too afraid to tell Sease to stop.

¶4 Following a trial, a jury found Sease guilty of the two strangulation
offenses and the battery. He was acquitted of sexual assault and the two
kidnapping offenses. Sease was given the maximum sentences: two years on the
misdemeanor battery conviction, bifurcated as eighteen months’ initial
confinement and six months’ extended supervision; and ten years on each
strangulation conviction, bifurcated as seven years’ initial confinement and three
years’ extended supervision. The sentences were ordered to run consecutively.

2
Consistent with the policy underlying WIS. STAT. RULE 809.86, we use a pseudonym
when referring to the victim.

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No. 2021AP1477-CR

¶5 Sease then filed a postconviction motion asserting that his due
process rights had been violated because the new charges were the result of
vindictive prosecution. He additionally argued he received constitutionally
ineffective assistance from his trial counsel as a result of his attorney’s failure to
challenge the vindictive prosecution. Finally, Sease argued the habitual
criminality penalty enhancers were unlawfully applied to his convictions because
his admission on the first day of trial to a prior qualifying felony was insufficient
and because the State failed to otherwise prove the fact of his prior conviction at
sentencing. The circuit court rejected these arguments following a nonevidentiary
hearing. Sease now appeals.

DISCUSSION

I. Vindictive Prosecution

¶6 Sease first argues that the new strangulation charge in this case was
animated by a vindictive motive against Sease for exercising his right to withdraw
his plea in case No. 2011CF415.3 The legal principles surrounding a claim of
prosecutorial vindictiveness present questions of law that we review de novo.
State v. Cameron, 2012 WI App 93, ¶11, 344 Wis. 2d 101, 820 N.W.2d 433.
However, we review the circuit court’s findings of fact regarding whether the
defendant has established actual vindictiveness under the clearly erroneous
standard. Id.

3
We address only the additional strangulation charge as part of this argument. Any
assertion that the kidnapping charges were animated by prosecutorial vindictiveness was
effectively rendered moot by his acquittal on those charges. See State v. Fitzgerald, 2019 WI 69,
¶21, 387 Wis. 2d 384, 929 N.W.2d 165.

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No. 2021AP1477-CR

¶7 “To establish a claim of prosecutorial vindictiveness, a defendant
must show either a ‘realistic likelihood of vindictiveness,’ therefore raising a
rebuttable presumption of vindictiveness, or actual vindictiveness.” State v.
Williams, 2004 WI App 56, ¶43, 270 Wis. 2d 761, 677 N.W.2d 691 (quoting State
v. Johnson, 2000 WI 12, 17, 232 Wis. 2d 679, 605 N.W.2d 846). Actual
vindictiveness requires the presentation of objective evidence that the prosecutor
acted to punish the defendant for standing on his or her legal rights. Id.

¶8 The State argues Sease has forfeited his prosecutorial vindictiveness
claim by failing to raise it prior to trial. Sease responds that he has not forfeited
his claim, and in any event, his brief posits ineffective assistance of counsel or
plain error as alternative means of reaching the validity of the State’s charging
decision. Even assuming Sease’s claim was properly preserved, however, we
conclude that Sease has failed to demonstrate prosecutorial vindictiveness. This
conclusion necessarily constitutes a rejection of Sease’s plain error and
ineffective-assistance-of-counsel arguments. See State v. Sanders, 2018 WI 51,
¶29, 381 Wis. 2d 522, 912 N.W.2d 16 (observing counsel does not perform
deficiently by failing to bring a meritless motion).

¶9 First, Sease contends he has established prosecutorial vindictiveness
under Blackledge v. Perry, 417 U.S. 21 (1974). Blackledge recognized that a
convicted person “is entitled to pursue his statutory right to a trial de novo,
without apprehension that the State will retaliate by substituting a more serious
charge for the original one, thus subjecting him to a significantly increased
potential period of incarceration.” Id. at 28. Accordingly, when a prosecutor
elects to pursue additional or increased charges following a defendant’s pursuit of
postconviction relief, and those additional or increased charges arose out of the
same criminal course of conduct that was the subject of the original charge, we

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No. 2021AP1477-CR

indulge a rebuttable presumption that the additional or increased charges were
retribution for the defendant’s exercise of his or her rights. See Williams, 270
Wis. 2d 761, ¶45.

¶10 The presumption is rebuttable because the successful invocation of
postconviction or appellate rights usually returns the case to a pretrial posture,
thereby permitting the defendant and the State to once again engage in the give-
and-take of plea negotiations. When we review a claim of vindictive prosecution,
we “must be mindful that a prosecutor has great discretion in charging decisions
and generally answers to the public, not the courts, for those decisions.”
Cameron, 344 Wis. 2d 101, ¶12. A prosecutor’s initial charging decision may not
reflect the extent to which an individual is legitimately subject to prosecution, and
the prosecutor must remain free to exercise broad discretion in determining which
charges properly reflect society’s interests. Id., ¶13.

¶11 Assuming without deciding that Sease has established a presumption
of vindictiveness here, the difficulty with Sease’s position is that he fails to make
any allowance for the State’s opportunity to rebut that presumption by showing the
additional or increased charges were brought about by legitimate considerations
and not animus or revenge. Rather, the logical endpoint of his argument is that
once the State negotiated the original plea agreement, it was forever bound to the
charges that formed the basis for that agreement, even if his pleas were later
deemed invalid.

¶12 We reject Sease’s argument and conclude that the evidence
presented by the State in connection with Sease’s postconviction motion
effectively rebutted any presumption that the new charges were retribution for
Sease’s exercise of his postconviction rights. The prosecutor’s affidavit explained

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No. 2021AP1477-CR

that prior to plea withdrawal, the original prosecutor left the district attorney’s
office. New prosecutors had been assigned to the case and had reviewed the case
file in No. 2011CF415. They believed the habitual criminality penalty enhancers
had been incorrectly charged, but could not be corrected because a plea had been
taken.4 Additionally, one of the prosecutors strongly disagreed with the way the
case had been initially charged. And, after receiving additional medical evidence,
the prosecutors decided that they could not prove the aggravated battery charge.

¶13 After Sease successfully sought plea withdrawal, the prosecutors
began discussing ways to fix the issues with the Criminal Complaint. They
decided to make a new plea offer dated April 1, 2015, in which Deputy
District Attorney Dennis Krueger was forthright about his belief that the case was
“grossly and incorrectly charged.” He acknowledged that the existing charges
were for second-degree sexual assault, aggravated battery, and strangulation, and
he argued that the facts supported additional charges, including kidnapping. The
offer also acknowledged the need for finality and that the district attorney’s office
was still awaiting medical records that “may further clarify whether the substantial
battery charges can be proven.”

¶14 The State’s new offer was based on the then-existing charges: Sease
would plead to second-degree sexual assault without the habitual criminality
penalty enhancer, and the State would dismiss the battery charge outright. The
strangulation charge would be dismissed and read in, with the parties free to
argue at sentencing. Sease was given until April 10th to accept—otherwise the

4
It is unclear what, precisely, the prosecutors believed was the defect in the charging.
However, as we note later when discussing the penalty enhancers, it is clear based on the
transcript of the plea colloquy that Sease admitted to the fact of a qualifying prior conviction.

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No. 2021AP1477-CR

prosecutors would “consider the option of dismissing the case and reissuing the
proper charges and any repeater enhancers that apply.”

¶15 Sease did not accept the State’s offer, and this case was filed on
April 16, 2015. In discussing the new strangulation charge specifically, the
prosecutor averred that its inclusion was motivated by the fact that there were two
“distinct” and “very clear incidents,” which could cause a potential jury-unanimity
issue if the case went to trial. The prosecutors decided that adding the second
strangulation count solved the potential issue and was consistent with the facts of
the case. They also concluded that the aggravated battery charge was unsupported
and amended it to misdemeanor battery. According to the affidavit, the goal of the
prosecution was not to punish Sease for his postconviction motion, but rather to
secure a conviction on the second-degree sexual assault charge and “get an
outcome that was at least equal to what the defendant had previously received.”

¶16 Sease correctly observes that the mere fact that new prosecutors
were put on his case does not insulate the State against claims of prosecutorial
vindictiveness. See Thigpen v. Roberts, 468 U.S. 27, 31 (1984). But the Record
demonstrates the prosecutors here had no retaliatory motive as their initial plea
offer adhered to the three charges they plainly believed were insufficient to reflect
Sease’s criminal liability. It was only after Sease rejected their initial offer
following plea withdrawal that the prosecutors sought the additional strangulation
charge. Sease had ample notice that they would seek additional charges if he
rejected the plea offer; they explicitly told him as much in the offer itself. And it
is well-established that there is no presumption of prosecutorial vindictiveness
arising from a prosecutor’s threat to add charges if a defendant refuses to plead
guilty. See Johnson, 232 Wis. 2d 679, ¶51.

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No. 2021AP1477-CR

¶17 We perceive the crux of Sease’s prosecutorial vindictiveness claim
to be that the foregoing analysis should not apply when the State makes a plea
offer that is materially worse than the plea offer the defendant initially accepted
before having his or her conviction overturned. Sease notes that the prosecutors’
new plea offer, which required him to plead guilty to second-degree sexual assault,
exposed Sease to an additional two years of initial confinement and seven years of
extended supervision. And, though Sease acknowledges that a “poor offer after
obtaining post-conviction relief would not be vindictive prosecution on its own[,]”
he argues the circumstances of this case demonstrate actual vindictiveness.

¶18 We will analyze actual vindictiveness momentarily, but pause here
to note that it remains an open question whether “the law of vindictive prosecution
applies to less favorable plea offers made after an original conviction is reversed
and remanded for a new trial.” State v. Tkacz, 2002 WI App 281, ¶27, 258
Wis. 2d 611, 654 N.W.2d 37. Strangely, neither Sease nor the State cites to
Tkacz, wherein the court held that, even assuming a less favorable plea offer could
constitute vindictive prosecution, Tkacz had failed to demonstrate a reasonable
likelihood of vindictiveness because he had not alleged the prosecutor added
charges or “sought a higher sentence than he received at the first trial[.]” Id., ¶30.

¶19 We similarly conclude that even if such a claim is cognizable, any
presumption of prosecutorial vindictiveness has been rebutted. Again, in making
their postwithdrawal plea offer, the prosecutors adhered to the original
prosecutor’s charging decisions—decisions that they plainly thought were too
lenient. Their request for Sease to plead guilty to the second-degree sexual assault
charge may have arguably increased his maximum exposure, but we cannot ignore
the context of the offer. After Sease entered his pleas, the circuit court imposed
seven years’ initial confinement and three years’ extended supervision on the

9
No. 2021AP1477-CR

strangulation conviction, with a consecutive fifteen years’ initial confinement and
six years’ extended supervision on the aggravated battery charge.5 The new plea
offer had to chart a perilous course: the prosecutors plainly wanted to be faithful
to the prosecutor’s prior decisions in the case, even though they believed
additional charges were warranted, Sease’s conduct justified a serious penalty, and
there were arguable proof problems vis-à-vis the aggravated battery charge.

¶20 Turning to actual vindictiveness, the appellate Record here is
entirely lacking in objective evidence that the prosecutors sought to punish Sease
for enforcing his constitutional right to enter a knowing, intelligent, and voluntary
plea. Sease argues he has demonstrated actual vindictiveness because at the
hearing on the State’s motion to dismiss, the prosecutor acknowledged that the
underlying factual allegations had not changed, and “this was a case that was
resolved and then became unresolved …[.]” But the assistant district attorney that
appeared at that hearing was not one of the assistant district attorneys handling the
case, and he then told the court that he could not explain the new charging
decision.6 He stated, “I would just be making assumptions, to be honest with
you.” This exchange does not demonstrate actual vindictiveness.

5
These appear to have been the maximum sentences allowed by law considering the
habitual criminality penalty enhancer.
6
Ironically, immediately after relying on the statements of the fill-in assistant district
attorney who acknowledged he could only offer speculation regarding the chagrining decision,
Sease levies criticism at the State for relying on “another ADA’s speculation who was not
involved until postconviction briefing.”

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No. 2021AP1477-CR

II. Habitual Criminality Penalty Enhancer

¶21 Sease also argues that he is unlawfully subject to habitual criminality
penalty enhancers for the crimes of conviction. “A defendant is subject to an
enhanced penalty for habitual criminality only if (1) the defendant personally
admits to qualifying prior convictions, or (2) the existence of qualifying prior
convictions is proved by the state.” State v. Saunders, 2002 WI 107, ¶19, 255
Wis. 2d 589, 649 N.W.2d 263 (citing WIS. STAT. § 973.12(1)). We review de
novo whether the requirements of § 973.12(1) have been satisfied. State v.
Liebnitz, 231 Wis. 2d 272, 283, 603 N.W.2d 208 (1999).

¶22 We agree with the State that Sease stipulated to the existence of a
prior qualifying conviction, a 2005 conviction for delivering cocaine. Early on,
during the first day of trial in this case, the following exchange occurred:

[DEFENSE COUNSEL]: Your Honor, in regards to the
repeater allegations, we will stipulate that if he is convicted
on any of the counts, that … he does meet the requirements
for a repeater, and we’d ask that the jury not be informed of
his repeater status.

THE COURT: What’s the State’s position?

[THE PROSECUTOR]: Your honor, I would agree with it
if they’re stipulating, so I believe it’s appropriate not to
read it.

THE COURT: Mr. Sease, do you understand that there
will not be a requirement for the prosecutor, during the
course of the trial or before sentencing, to actually prove
that you were a repeater under Wisconsin law?

MR. SEASE: Yes, sir.

The court then stated that, pursuant to the agreement and stipulation, there would
be no reference to Sease’s status as a repeater at trial.

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No. 2021AP1477-CR

¶23 As we noted in a prior order in connection with Sease’s dismissed
no-merit appeal, this cautionary discussion was probably unnecessary as repeater
status is not normally determined by a jury, but rather is a matter for the circuit
court at sentencing. Nonetheless, during the course of the discussion, Sease did
acknowledge his attorney’s stipulation and admit that he had a prior qualifying
offense for purposes of the repeater allegations.

¶24 Sease contends this stipulation was ineffective under Saunders,
which set forth the black-letter law that a stipulation by a defendant’s attorney is
insufficient, and a “‘direct and specific admission by the defendant’” is required.
Saunders, 255 Wis. 2d 589, ¶22 (citation omitted). Saunders also establishes that
“an admission by the defendant must contain specific reference to the date of the
conviction and any period of incarceration if relevant to applying § 939.62.”
Saunders, 255 Wis. 2d 589, ¶22.

¶25 The State does not contend the pretrial discussion here satisfied this
requirement. Rather, the State argues Sease was certainly aware of the repeater
allegations throughout these proceedings and those in case No. 2011CF415.
Notably, in No. 2011CF415, Sease pled guilty to two offenses based on this same
course of conduct, which included the habitual criminality penalty enhancers.
During the plea colloquy in that case, he personally acknowledged that he had a
prior felony conviction during the relevant timeframe. Sease now claims that the
withdrawal of those pleas precludes the State from relying on any aspect of that
plea hearing as it pertains to Sease’s admission of a prior qualifying felony.

¶26 As the circuit court recognized (at least implicitly) when addressing
Sease’s postconviction motion, this case appears to fall somewhere between
Saunders’s dictates. During the trial discussion in this case, the court did not

12
No. 2021AP1477-CR

specify the date of prior conviction nor any relevant periods of confinement for
purposes of tolling the look-back period within WIS. STAT. § 939.62, as required
by Saunders. However, to hold that Sease’s admission in this case was
inadequate would ignore the plea proceedings in No. 2011CF415, which led to the
trial in this case.

¶27 Saunders was not a case involving prior guilty pleas. And Saunders
acknowledged the case law holding that a defendant who pleads guilty or no
contest “can be held to have admitted to a prior conviction for enhancement
purposes, even if the defendant never expressly admitted to the conviction.”
Saunders, 255 Wis. 2d 589, ¶22 (citing Liebnitz, 231 Wis. 2d at 286; State v.
Rachwal, 159 Wis. 2d 494, 509, 465 N.W.2d 490 (1991)). Though Sease’s pleas
in No. 2011CF415 were subsequently withdrawn, they were not withdrawn based
on any claimed misunderstanding about his prior felony conviction or his status as
a habitual criminal—points Sease was specifically asked about by the circuit court
in connection with his entering those pleas. The court’s postconviction decision in
this appeal discusses the considerable history of the case, the focus being
specifically Sease’s understanding of the nature of the repeater allegations.

¶28 Under these circumstances, we hold that it was not necessary for the
circuit court to again require Sease to explicitly confirm the date of his prior
conviction and any relevant periods of confinement. Sease relieved the State of its
responsibility to prove his status as a repeater by his acknowledgment on the trial
date. Having concluded that Sease admitted to the relevant prior conviction and
his status as a habitual criminal, it is unnecessary for us to also consider whether
the State’s proof was sufficient.

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No. 2021AP1477-CR

By the Court.—Judgment and order affirmed.

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

14