State v. Kris M. Marcelle

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 24, 2024
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2022AP888-CR Cir. Ct. No. 2017CF442

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KRIS M. MARCELLE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Sheboygan County: REBECCA L. PERSICK, 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. 2022AP888-CR

¶1 PER CURIAM. Kris M. Marcelle appeals a judgment of
conviction, entered upon his no-contest pleas, for second-degree reckless injury,
false imprisonment, intimidation of a victim, and strangulation. He argues the
circuit court erroneously exercised its discretion by denying his last-minute
request for substitution of counsel just days before the scheduled trial. He also
argues he is entitled to plea withdrawal because his pleas were rendered
involuntary as a result of the ineffective assistance of counsel he received in the
preparation of his case. We reject these arguments and affirm.

BACKGROUND

¶2 Marcelle was charged with eight crimes stemming from his pregnant
girlfriend’s allegations that Marcelle had committed acts of physical violence
against her over the course of four days in July 2017. His trial was ultimately
scheduled for three days, commencing on July 24, 2018.

¶3 At a hearing six days before trial, Marcelle expressed his desire to
fire his appointed attorney. Applying the factors discussed in State v. Boyd, 2011
WI App 25, 331 Wis. 2d 697, 797 N.W.2d 546, the circuit court denied Marcelle’s
request. Marcelle subsequently pled no contest to the four offenses described
above pursuant to a plea agreement with the State. The remaining charges were
dismissed and read in. The State agreed to recommend a total sentence of ten
years’ initial confinement and thirteen years’ extended supervision, with the
defense free to argue. The court imposed consecutive sentences totaling fifteen
years’ initial confinement and sixteen years’ extended supervision.

¶4 Marcelle sought postconviction relief, asserting the circuit court
erred by denying his request for a new attorney and that he had received
ineffective assistance of counsel in connection with the entry of his pleas.

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No. 2022AP888-CR

Following a Machner1 hearing and further briefing, the court denied the
postconviction motion. As relevant here, it concluded it had properly exercised its
discretion when it refused to grant Marcelle’s request for substitute counsel. It
also rejected Marcelle’s contention that he was coerced into entering his pleas by
his attorney’s lack of preparation for trial. Marcelle now appeals.

DISCUSSION

¶5 We first address Marcelle’s argument that the circuit court erred by
denying his request for new counsel.2 We review a court’s denial of substitute
counsel for an erroneous exercise of discretion. State v. Jones, 2010 WI 72, ¶24,
326 Wis. 2d 380, 797 N.W.2d 378. Our review encompasses a number of factors,
including the adequacy of the circuit court’s inquiry into the defendant’s
complaint, the timeliness of the motion, and “whether the alleged conflict between
the defendant and the attorney was so great that it likely resulted in a total lack of
communication that prevented an adequate defense and frustrated a fair
presentation of the case.” Id., ¶25 (citation omitted).

1
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
2
Although Marcelle refers to Machner throughout his argument, he appears not to be
asserting he was denied constitutionally effective assistance of counsel in connection with his
request for a new attorney. His failure to apply the test for ineffective assistance of counsel as
part of this argument buttresses that conclusion.

Rather, he appears to argue that his attorney’s Machner testimony should have some
bearing on whether the circuit court erroneously exercised its discretion when it denied his
request for new counsel prior to entering his plea. A retrospective hearing is necessary only if the
circuit court failed to make an adequate inquiry into the reasons for the change-of-counsel request
at the time it was made. State v. Lomax, 146 Wis. 2d 356, 362-65, 432 N.W.2d 89 (1988).

Here, as we further discuss below, the circuit court did not summarily deny Marcelle’s
request for substitution of counsel. It permitted Marcelle to fully explain the nature of the
conflict and reasons for his request. Accordingly, a retrospective hearing was not necessary, and
we confine our review to the record before the court at the time of its decision.

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No. 2022AP888-CR

¶6 We conclude the circuit court did not erroneously exercise its
discretion. The court permitted Marcelle to make a lengthy statement regarding
the reasons for his substitution-of-counsel request. Marcelle stated that he
disagreed with his attorney about trial strategy, he did not believe his attorney was
prepared for trial, and defense counsel had been uncommunicative. Marcelle was
skeptical that his attorney had his “best interest at heart,” and he believed defense
counsel was “trying to force [him] to take a deal.”

¶7 The State opposed an adjournment, noting the late timing of the
request and that the victim objected to a delay. The State pointed out that one of
its witnesses was in the military and had been granted a special approval to be
present on the scheduled trial dates, with the flight already paid for.

¶8 The circuit court found that a new attorney would require substantial
time to prepare Marcelle’s defense to the serious felony charges. Given the
court’s calendar, a new trial would not be expected to occur until the following
spring. The court also noted that Marcelle’s substitution-of-counsel request came
close to the trial date, when an adjournment would be extremely inconvenient.

¶9 The court nonetheless observed that a “bona fide conflict” between
Marcelle and his attorney could warrant the delay. It found, however, that no such
conflict existed: Marcelle was primarily upset with his attorney’s “honest
assessment of the case.” When Marcelle interjected to reiterate that he did not
believe his counsel was prepared for trial, the court inquired of counsel whether
that was true. Defense counsel responded that the only holdup was their difficulty
communicating; counsel stated he had reviewed all of the discovery and had given
all but perhaps a few recently disclosed pages of it to Marcelle.

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No. 2022AP888-CR

¶10 Marcelle faults the circuit court for failing to consider, among other
things, whether Marcelle had “any fair opportunity to assess his attorney or even
make the request” for substitution of counsel prior to the time he did. While those
might be relevant considerations, they do not alter the court’s conclusion that the
dispute concerned the perceived strength of Marcelle’s defense nor the undeniable
fact that the trial was imminent when Marcelle made his request. Our standard of
review on this issue does not require circuit courts to anticipate and address every
nuance of a defendant’s argument. Rather, the exercise of discretion
“contemplates a reasoning process which considers the applicable law and the
facts of record, leading to a conclusion [that] a reasonable judge could have so
concluded.” State v. Jeske, 197 Wis. 2d 905, 912, 541 N.W.2d 225 (Ct. App.
1995).

¶11 Here, although the court acknowledged there were some
communication difficulties, it found that the disagreement between Marcelle and
his attorney primarily turned on defense counsel’s evaluation of the strength of the
case and did not amount to “a total lack of communication that prevented an
adequate defense and frustrated a fair presentation of the case.” See Jones, 326
Wis. 2d 380, ¶25 (citation omitted). The court appropriately balanced the relevant
considerations and reached a reasonable conclusion not to discharge Marcelle’s
counsel. The court conducted a thorough inquiry, after which it determined that
the request for substitution of counsel was untimely. We perceive no reason to
second-guess these determinations.

¶12 Marcelle next argues he is entitled to plea withdrawal. To withdraw
a guilty plea after sentencing, the defendant must show that allowing the plea to
stand would result in a manifest injustice. State v. Jeninga, 2019 WI App 14, ¶11,
386 Wis. 2d 336, 925 N.W.2d 574. Marcelle argues he has demonstrated a

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No. 2022AP888-CR

manifest injustice because he received constitutionally ineffective assistance of
counsel in connection with his plea. Id. Specifically, Marcelle argues he “felt …
backed into a corner by trial counsel’s lack of diligence and the trial court’s denial
of his motion for new counsel.”

¶13 Ineffective assistance of counsel, in turn, requires the defendant to
demonstrate both that his or her counsel’s performance was deficient and that the
deficiency was prejudicial. Id.; see also Strickland v. Washington, 466 U.S. 668,
687 (1984). Deficient performance requires a showing of errors so serious that
counsel was not functioning as the counsel guaranteed by the Sixth Amendment.
Strickland, 466 U.S. at 687. To prove prejudice, the defendant must show that
there is a reasonable probability that he or she would not have pled and would
have gone to trial but for counsel’s deficient performance. Jeninga, 386 Wis. 2d
336, ¶12.

¶14 We agree with the circuit court’s assessment that Marcelle has failed
to demonstrate prejudice arising from any alleged ineffectiveness on the part of his
attorney. The court noted at the plea hearing that Marcelle was previously “very
intent … on wanting to take this case to trial,” and it asked what had changed his
mind. Marcelle responded that the denied motion for substitution of counsel and
his belief that his attorney was not adequately prepared for trial “plays a big part in
it.” The court again stated its conclusion from the previous hearing that Marcelle
was primarily disagreeing with his attorney’s assessment of the strength of the
case, which the court noted “doesn’t mean he wasn’t actually preparing to be
ready for the trial.”

¶15 Marcelle disputed that characterization, asserting that his request for
substitute counsel was based on “the fact that we didn’t have time to sit down and

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No. 2022AP888-CR

properly communicate, and it was kind of a breakdown in communication from
the get-go.” The court then noticed that Marcelle had filed a motion for
reconsideration of the substitution-of-counsel denial that day, and it asked for
defense counsel’s response.

¶16 Defense counsel stated that after the court decided he would stay on
the case, he had met with Marcelle at the jail several times. 3 During the visits, he
and Marcelle had “gotten along fine,” had been able to communicate, and had “not
talked about any issues that we ha[d] once we got down to brass tacks and
prepared for trial.” Counsel further stated that he believed Marcelle had reached
the plea decision of his own volition and decided “to enter no contest pleas rather
than take his chances with a jury.” Marcelle then reaffirmed his decision to enter
the no-contest pleas.

¶17 At the Machner hearing, Marcelle again asserted his defense
attorney was not communicative and was unprepared for trial. But when directly
asked why he elected to enter pleas instead of take the case to trial, Marcelle
responded: “By pleading guilty and taking that plea agreement, I mean, the time
was reduced. I guess it was just kind of to cut my losses so to speak.”

¶18 During cross-examination, the prosecutor elicited responses from
Marcelle that cast doubt on his commitment to bringing the case to trial. Marcelle
acknowledged that his defense counsel negotiated a plea agreement that
substantially reduced his exposure, including the elimination of a Class C felony

3
Defense counsel stated he and Marcelle had “met … three or four times since the last
court date.” According to Marcelle’s postconviction materials, defense counsel met with him
twice prior to entering his pleas.

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No. 2022AP888-CR

kidnapping offense. Marcelle testified that he believed he would have received a
far better plea deal “had I had a fair attorney that could properly put my case
together.” The prosecutor then pointed out that Marcelle had requested that his
defense attorney make a counteroffer, indicating that Marcelle was interested in
resolving the case rather than taking it to trial.

¶19 Defense counsel did, in fact, propose a counteroffer, the
circumstances of which also inform our conclusion that Marcelle was not
prejudiced by any alleged deficiencies on the part of his attorney. Defense counsel
had, by email, advised the prosecutor of Marcelle’s version of events, to which the
prosecutor responded, “We will try this case then[.]” Defense counsel then
attempted to negotiate the amount of the joint sentencing recommendation, to
which the prosecutor replied, “I am going to hold on my offer.” When defense
counsel proposed a counteroffer, the prosecutor responded, “He can either take my
original offer, or we are going to try the case.”

¶20 Based on the totality of the appellate record, there is not a reasonable
probability that Marcelle would have insisted on going to trial absent any alleged
deficient performance on the part of his attorney. Marcelle was clearly interested
in resolving his case, acknowledging that he took the State’s proposed plea deal
because it substantially reduced his exposure to criminal penalties. The State’s
responses to defense counsel’s overtures during plea negotiations show that
Marcelle was unlikely to get a better plea offer, regardless of any further
investigative efforts or trial preparation by his attorney. Marcelle has failed to
establish a manifest injustice warranting plea withdrawal.

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No. 2022AP888-CR

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5 (2021-22).

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