State v. Emanual Santana

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.
November 23, 2021
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. 2020AP1214-CR Cir. Ct. No. 2018CF320

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

EMANUAL SANTANA,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: MARK A. SANDERS and STEPHANIE ROTHSTEIN,
Judges. Affirmed.

Before Brash, C.J., Donald, P.J., and Dugan, J.

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. 2020AP1214-CR

¶1 PER CURIAM. Emanual Santana appeals from a judgment of
conviction for one count of first-degree sexual assault and an order denying his
postconviction motion, without a hearing. On appeal, Santana argues that his trial
counsel was ineffective for failing to bring a proper motion to dismiss the criminal
charges filed against him on the basis that the time period alleged in the criminal
complaint was too broad and indefinite to allow Santana to prepare a defense.
Santana also argues that the plain error doctrine requires that the charges against
him be dismissed. For the reasons set forth below, we affirm.

BACKGROUND

¶2 Santana was charged with three counts of first-degree sexual assault
of a child on January 24, 2018. The criminal complaint alleged that Santana had
engaged in sexual intercourse with his niece, Ashley,1 on several occasions
between July 24, 2010, and July 23, 2011. Count one pertained to assaults that
occurred on the “short couch” in the living room, while Ashley was watching
Sesame Street; count two pertained to assaults that occurred when Santana had
Ashley stand in the middle of the living room; and count three pertained to an
assault that occurred in the attic, where Ashley slept. Each count alleged that
Santana had penis-to-anus intercourse with Ashley on the occasions when she was
at the house where Santana lived.2 The assaults began when Ashley was eight

1
We use a pseudonym to refer to the victim in this case for ease of reference and to
protect the victim’s identity.
2
The assaults were alleged to have occurred at Ashley’s grandmother’s house.
However, Santana, who was married to Ashley’s aunt and the sister of Ashley’s father, lived there
as well. As Ashley’s mother testified at trial, she would drop Ashley off to spend the night, while
she went to work on the night shift. When Ashley was approximately nine years old, she told her
mother that she did not feel comfortable staying with “Uncle Emanual” anymore, but did not
elaborate on why.

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No. 2020AP1214-CR

years old and ended when Ashley was nine. She was fifteen years old at the time
she reported them.

¶3 Following a jury trial, Santana was convicted of count one related to
the assaults that were alleged to have occurred on the “short couch” in the living
room, not guilty on the remaining two counts, and was sentenced to thirty-nine
years of imprisonment.3

¶4 Santana filed a postconviction motion alleging that his trial counsel
was ineffective for failing to move to dismiss the criminal complaint on the basis
that the time period alleged in the criminal complaint was too broad and indefinite
to allow him to prepare a defense. He also alleged that the deficiencies in the
criminal complaint must be addressed under the plain error doctrine. As described
in his motion, his trial counsel had sought to dismiss the criminal charges by way
of a motion in limine prior to trial, but the trial court denied trial counsel’s motion
on the basis that trial counsel failed to bring the motion in the proper form and at
the appropriate time and, alternatively, because the State alleged the dates with as
much specificity as possible. The postconviction court denied Santana’s motion,
without a hearing, and Santana appeals.

DISCUSSION

¶5 “Under the Sixth and Fourteenth Amendments to the United States
Constitution, a criminal defendant is guaranteed the right to effective assistance of

3
The Honorable Mark A. Sanders presided over Santana’s trial and sentencing, and
entered the judgment of conviction. The Honorable Stephanie Rothstein denied Santana’s
postconviction motion. We refer to Judge Sanders as the trial court and Judge Rothstein as the
postconviction court.

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No. 2020AP1214-CR

counsel.” State v. Balliette, 2011 WI 79, ¶21, 336 Wis. 2d 358, 805 N.W.2d 334.
A defendant must show two elements to establish that his or her counsel’s
assistance was constitutionally ineffective: (1) counsel’s performance was
deficient; and (2) the deficient performance resulted in prejudice to the defense.
Id. “To demonstrate deficient performance, the defendant must show that his
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).

¶6 “An ineffective assistance of counsel claim presents a mixed
question of fact and law.” State v. Pico, 2018 WI 66, ¶13, 382 Wis. 2d 273, 914
N.W.2d 95. “We will not reverse the circuit court’s findings of fact unless they
are clearly erroneous.” Id. “We independently review, as a matter of law,
whether those facts demonstrate ineffective assistance of counsel.” Id.

¶7 In this case, Santana argues that his trial counsel was ineffective for
failing to file a proper motion to dismiss the criminal charges filed against him on
the basis that the time frame alleged in the criminal complaint was too broad and
indefinite to allow him to prepare a defense. As Santana argues, the charges were
deficient because they covered a one-year time frame, without more detail on the
exact dates of the assaults, and the charges were filed six years after the assaults
were alleged to have occurred. Whether the time period alleged in the criminal
complaint is so broad and indefinite that it violates Santana’s right to present a
defense is “an issue of constitutional fact which we decide independently of the
trial court’s determination.” State v. Fawcett, 145 Wis. 2d 244, 249, 426 N.W.2d
91 (Ct. App. 1988).

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No. 2020AP1214-CR

¶8 “A criminal charge must be sufficiently stated to allow the defendant
to plead and prepare a defense.” Id. at 250. However, “[t]ime is not of the
essence in sexual assault cases” and “proof of an exact date” is not required such
that the date of the commission of the crime “need not be precisely alleged.” Id.
Moreover, in a case involving a child victim, “a more flexible application of notice
requirements is required and permitted.” Id. at 254.

¶9 To determine whether the charges are sufficiently stated, we
examine several of the factors discussed in Fawcett:

(1) the age and intelligence of the victim and other
witnesses; (2) the surrounding circumstances; (3) the nature
of the offense, including whether it is likely to occur at a
specific time or is likely to have been discovered
immediately; (4) the length of the alleged period of time in
relation to the number of individual criminal acts alleged;
(5) the passage of time between the alleged period for the
crime and the defendant’s arrest; (6) the duration between
the date of the indictment and the alleged offense; and
(7) the ability of the victim or complaining witness to
particularize the date and time of the alleged transaction or
offense.

Id. at 253. Applying these factors to this case, we conclude that Santana has been
provided with sufficient notice to satisfy his due process right to plead and prepare
a defense. Thus, his trial counsel cannot be considered deficient, and thus
ineffective, for failing to bring a meritless motion. See State v. Hurley, 2015 WI
35, ¶53, 361 Wis. 2d 529, 861 N.W.2d 174.

¶10 Initially, citing State v. R.A.R., 148 Wis. 2d 408, 435 N.W.2d 315
(Ct. App. 1988), Santana argues that the first three Fawcett factors do not apply in
his case because he makes no claim that the State could have obtained a more
specific time period through greater diligence. However, his argument is not a
correct statement of the law—we are not prohibited from examining the first three

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No. 2020AP1214-CR

Fawcett factors because of how Santana chose to present his argument. See
State v. Kempainen, 2015 WI 32, ¶¶18, 25-29, 361 Wis. 2d 450, 862 N.W.2d 587
(overruling that portion of R.A.R. that limited the analysis of the Fawcett factors).
Accordingly, we decline to limit our analysis to the last four Fawcett factors, and
we examine each factor in turn. We then conclude that the Fawcett factors
indicate that the criminal complaint in this case is sufficient.

¶11 Under the first factor, we note that Ashley was eight and nine years
old at the time of the alleged assaults, and we consider that her young age rendered
her incapable of reporting the assaults or recalling back to the exact date. “Young
children cannot be held to an adult’s ability to comprehend and recall dates and
other specifics.” Fawcett, 145 Wis. 2d at 249. Moreover, due to the nature of
child sexual assaults that often occur over a period of time and with a pattern of
conduct, “a singular event or date is not likely to stand out in the child’s mind.”
Id. at 254. Thus, this factor indicates that the one-year time frame for multiple
assaults alleged in the criminal complaint is sufficient because “[a]t this young age
it is highly unlikely that she could particularize the dates or the sequences in which
the assaults occurred.” See Hurley, 361 Wis. 2d 529, ¶42.

¶12 Turning to the second factor, the surrounding circumstances of being
assaulted by her uncle while she is left at his house make it especially unlikely that
Ashley would report the assaults immediately. As has been repeatedly recognized,
the circumstances of a child being assaulted by a “trusted relative or friend” often
times “serve[s] to deter a child from coming forth immediately.” Fawcett, 145
Wis. 2d at 249; see also Kempainen, 361 Wis. 2d 450, ¶33 (addressing sexual
assaults of a child by her stepfather saying, “A young girl in this situation would
understandably be reluctant to tell anyone about the assaults at the time they
occurred[.]”). Santana was a trusted relative in this situation and “held a position

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No. 2020AP1214-CR

of authority.” See Kempainen, 361 Wis. 2d 450, ¶33. Therefore, with the
circumstances here involving a young child being assaulted by her uncle at the
very place and with the very people with whom her mother entrusted her care, it is
understandable that Ashley did not immediately come forward and was unable to
provide more exact dates of the assaults at the time she came forward. See
Hurley, 361 Wis. 2d 529, ¶¶43-46. Thus, this factor indicates that the one-year
time frame alleged in the complaint is sufficient.

¶13 Under the third factor, we recognize that the nature of this type of
offense is not likely to be discovered immediately. “Sexual abuse and sexual
assaults of children are difficult crimes to detect and prosecute. Often there are no
witnesses except the victim.” Fawcett, 145 Wis. 2d at 249. Here, Santana’s case
is no different—his young niece was the only witness to the alleged assaults, and
the discovery of this type of crime depended on her willingness to come forward
and report her uncle. See id. at 254. Thus, the delay in bringing the criminal
charges, and in turn her ability to recall exact dates, is understandable, and this
factor also weighs in favor of the complaint being sufficient.

¶14 Considering the fourth factor, the length of time alleged in the
complaint is one year, and there were multiple alleged acts of assault contained in
the complaint. “It is [] unlikely that the assaults would have occurred at a specific
time” and the circumstances of the assaults as part of Ashley’s everyday life “do
not indicate that they occurred in conjunction with a specific date that would have
stood out in a child’s mind.” See Kempainen, 361 Wis. 2d 450, ¶33. The assaults
took place when Ashley was left in the care of family members. There is no
reason to believe that the assaults would have been connected to anything that
would have otherwise stood out in Ashley’s mind to be able to provide more
definite dates. Moreover, time is not a material element for the offenses charged

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No. 2020AP1214-CR

in the criminal complaint, and thus, it need not be more precisely alleged than it is.
See Fawcett, 145 Wis. 2d at 250.

¶15 We next turn to the fifth and sixth factors. As Santana contends,
there was a significant amount of time that passed from the time of the alleged
assaults in 2010 and 2011 until the criminal complaint was filed in 2018.
However, given the nature of this case, i.e., a child sexual assault, a gap between
the time of the assaults and the time of the filing of the criminal complaint is a
regular occurrence. Indeed, greater gaps of time have been deemed acceptable due
to the nature of child sexual assault cases. See Kempainen, 361 Wis. 2d 450, ¶¶5,
35 (approving gaps of twelve and fifteen years). Thus, “we must consider why the
delay occurred and how it impacts [Santana]’s ability to prepare his defense.” See
id., ¶36. However, Santana provides nothing more than “a strictly mechanical and
mathematical approach” by stating that the complaint alleges a one-year time
frame and was brought six years after the alleged assaults occurred, and he does
not articulate how his ability to present a defense has been impaired by the delay
or the one-year time frame provided in the complaint. See Hurley, 361 Wis. 2d
529, ¶¶50-51 (“[A] purely mathematical approach is impracticable when
determining the overall reasonableness of the charging period.”). Thus, the time
frame alleged in the complaint is sufficient under these two factors.

¶16 Finally, under the seventh factor, we consider the ability of Ashley
to particularize the dates and times of the alleged assaults. Here, she was able to
allege where she was, what happened immediately prior to the assaults, and the
order of events during the assaults. For example, she articulated that she was
watching Sesame Street just prior to the assault that occurred on the “short couch”
and that Santana told her to bend over, he pulled her pants down instead of taking
them off, and he bent her over the couch. She also articulated that she was

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No. 2020AP1214-CR

sleeping in the attic and Santana woke her up to assault her. The details that she
was able to provide regarding the specific acts done to her “indicates that [she]
was able to identify the time of day and the nature of the alleged assaults with
reasonable certainty.” See Kempainen, 361 Wis. 2d 450, ¶40. This factor, thus,
indicates that the criminal complaint is sufficient.

CONCLUSION

¶17 We conclude that overall, the Fawcett factors demonstrate that the
criminal complaint in Santana’s case provided sufficient notice of when the
alleged crimes occurred, and thus, was sufficient to allow Santana to prepare and
present a defense. Consequently, trial counsel’s performance cannot be
considered deficient for failing to bring what would have been a meritless motion,
and we reject Santana’s argument to the contrary. See State v. Wheat, 2002 WI
App 153, ¶14, 256 Wis. 2d 270, 647 N.W.2d 441 (“Failure to raise an issue of law
is not deficient performance if the legal issue is later determined to be without
merit.”); see also State v. Ziebart, 2003 WI App 258, ¶14, 268 Wis. 2d 468, 673
N.W.2d 369 (stating that “a claim predicated on a failure to challenge a correct
trial court ruling cannot establish either” deficiency or prejudice). Without being
able to prove deficient performance on the part of his trial counsel, Santana’s
claim of ineffective assistance of counsel fails, and the postconviction court did
not err by denying Santana’s motion. See State v. Johnson, 2004 WI 94, ¶11, 273
Wis. 2d 626, 681 N.W.2d 901.4

4
We similarly reject Santana’s argument that the plain error doctrine requires reversal
because no error, plain or otherwise, occurred, and we do not address Santana’s argument on the
plain error doctrine further. See State v. Jorgensen, 2008 WI 60, ¶¶20-23, 310 Wis. 2d 138, 754
N.W.2d 77.

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No. 2020AP1214-CR

By the Court.—Judgment and order affirmed.

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

10