State v. Michael H. Taylor

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.
July 23, 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. 2023AP1410 Cir. Ct. No. 2015CF376

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MICHAEL H. TAYLOR,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Marathon County:
RICK T. CVEYKUS, Judge. Reversed and cause remanded with directions.

Before Stark, P.J., Hruz and Gill, 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. 2023AP1410

¶1 PER CURIAM. Michael H. Taylor appeals an order that denied his
WIS. STAT. § 974.06 (2021-22)1 motion for postconviction relief without an
evidentiary hearing. Taylor sought plea withdrawal, alleging that his trial attorney
was constitutionally ineffective by failing to advise him of a potential defense and
of the existence of an expert witness’s report supporting that defense. We
conclude that Taylor’s postconviction motion contains sufficient factual
allegations to entitle Taylor to a hearing. We therefore reverse the circuit court’s
order denying Taylor’s postconviction motion and remand for the court to hold an
evidentiary hearing on the motion.

BACKGROUND

¶2 In May 2015, the State filed a criminal complaint that charged
Taylor with two offenses, both as a party to a crime: (1) first-degree reckless
homicide by the manufacture or delivery of a controlled substance; and
(2) manufacture or delivery of heroin (less than or equal to three grams), as a
second and subsequent offense. The complaint alleged that Taylor sold heroin to
an individual, who then sold some of the heroin to another individual, who died
after using the heroin. According to the complaint, a sample of the victim’s blood
showed the presence of Delta 9 THC, Carboxy THC, morphine, and
6-Monoacetylmorphine, which “is the metabolite of heroin and indicates heroin
use.” A medical examiner determined that the victim’s cause of death was heroin
toxicity.

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2023AP1410

¶3 The parties ultimately reached a plea agreement, and in
January 2016, Taylor entered a no-contest plea to the first-degree reckless
homicide charge. The manufacture or delivery of heroin charge was dismissed
and read in.2 Consistent with the State’s recommendation, the circuit court
sentenced Taylor to twenty years’ initial confinement followed by ten years’
extended supervision. Taylor did not file a direct appeal from his judgment of
conviction.

¶4 In April 2023, Taylor filed a postconviction motion under WIS.
STAT. § 974.06, seeking to withdraw his no-contest plea. As grounds for plea
withdrawal, the motion alleged that Taylor’s trial attorney was constitutionally
ineffective by failing to inform him that he had a potential causation defense to the
first-degree reckless homicide charge and that counsel had obtained an expert
witness’s report that supported that defense.

¶5 More specifically, Taylor’s motion alleged that in August 2015, his
trial attorney investigated pursuing a causation defense to the first-degree reckless
homicide charge—i.e., a defense that the victim did not die as a result of the
heroin that Taylor supplied. Trial counsel retained Dr. Richard Tovar, who was an
assistant clinical professor at the Medical College of Wisconsin, to review the
victim’s autopsy results and render an opinion regarding his cause of death. Tovar
opined that the victim “died of a poly-drug overdose, a combination of heroin,
marijuana, and paroxetine”—i.e., Paxil, an antidepressant. Tovar explained that
all three of those drugs “exhibit central nervous system sedative hypnotic effects”

2
The plea agreement also resolved two other pending cases, which are not before us in
this appeal.

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No. 2023AP1410

and “act on different receptors in the brain,” therefore causing “a synergistic effect
on a subject resulting in a greater than expected sedative hypnotic effect. In this
case, the sedative hypnotic effect was severe respiratory depression and death.”
Tovar further opined:

The combined synergistic effect of the above drugs resulted
in the observed effect for [the victim]. It is not possible to
state medically that one single drug was a substantial
factor in [the victim’s] death, as in my training and
experience, and in the medical literature, subjects have
been observed to be alive with the above blood
concentration of only heroin in their system.

(Emphasis added.)

¶6 Taylor’s postconviction motion further alleged that his trial attorney
shared Tovar’s report with the district attorney, who “was unmoved, noting his
office had had ‘some experience’” with Tovar and had successfully “excluded
[him] as an expert in two cases.” According to the postconviction motion,
Taylor’s trial attorney then abandoned the causation defense, and “she did not
share with Taylor her investigation, … Tovar’s report, her communications about
it with the [district attorney], or her decision to stop pursuing the defense.”

¶7 In an affidavit attached to his postconviction motion, Taylor averred
that in January 2016, he “reluctantly decided to enter a [no-contest] plea to the
reckless homicide charge” because he believed that he had “absolutely no
defense” to that charge, because the State’s plea offer had “slightly improved,”
and because he hoped that his attorney might be able to convince the circuit court
to impose a sentence that was less than the State’s recommendation. Taylor
asserted, “Since I had no defense, there was no point in going to trial.”

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No. 2023AP1410

¶8 According to the postconviction motion and Taylor’s affidavit,
Taylor first received a copy of the discovery in this case in late February or early
March 2016—after he had entered his plea to the reckless homicide charge. It was
at that point that Taylor first saw the victim’s toxicology report. After noticing a
reference to cocaine in the toxicology report and discussing the report with other
inmates, it occurred to Taylor that the victim “could have died from another drug
other than heroin, because he had a lot of other drugs in his system.” Taylor
alleged in his affidavit:

When I had entered my plea, I only had the criminal
complaint, which only referenced heroin and THC in [the
victim’s] system. When I learned that [the victim] had a
multitude of other drugs in his system, I decided that I
wished to withdraw my plea to the homicide charge.

¶9 Taylor further alleged that he “tried to reach out to” his trial attorney
to let her know that he wanted to withdraw his plea, but he experienced “great
difficulty getting ahold of her.” According to Taylor, when he finally spoke with
his trial attorney by phone and stated that he wanted to withdraw his plea because
the victim “had a lot more than heroin in his system when he died,” his trial
attorney “did not respond favorably to [his] thoughts,” which led him to believe
“that this was not a defense.” Counsel “immediately redirected the conversation
to a different topic,” and it was “clear” to Taylor “that she did not support [his]
decision to withdraw [his] plea, because [he] had no defense.” Taylor alleged: “I
therefore completely abandoned my decision to withdraw my plea because I was
led to believe that the toxicology issue simply offered no defense whatsoever. I
did not bring it up again, and neither did anyone else.”

¶10 Taylor further alleged that after his sentencing, he “learned that
based on the toxicology report, [he] actually did have a potential causation defense

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No. 2023AP1410

to the homicide.” In particular, Taylor’s postconviction motion cited Burrage v.
United States, 571 U.S. 204 (2014), as legal authority in support of a causation
defense. Taylor also alleged that “[m]uch more recently,” he learned that his trial
attorney “actually had consulted with an expert witness who provided a favorable
expert opinion that would have greatly bolstered a causation defense.” According
to Taylor, his trial attorney never informed him “of an expert witness opinion that
heroin could not be said to be the primary cause of [the victim’s] death” and never
discussed with him any defense to the homicide charge, including a causation
defense.

¶11 Taylor also alleged that if he had been made aware of Tovar’s
opinion or of a possible causation defense before he entered his plea, he would not
have entered a plea and “would instead have chosen to go to trial.” In addition,
Taylor alleged that if he had been informed of the possible causation defense and
Tovar’s opinion after entering his plea but before sentencing, he would not have
“abandoned” his decision to withdraw his plea and would have pursued a
presentencing motion for plea withdrawal.

¶12 The circuit court denied Taylor’s postconviction motion without an
evidentiary hearing. The court stated, “[A]s I understand the defense’[s]
challenge, it’s a challenge [that] the defense attorney did not raise [a] Burrage
defense.” The court then reasoned that the law was unsettled as to Burrage’s
applicability because Burrage was a federal case interpreting a federal statute, and
it was up to the Wisconsin Supreme Court to interpret the meaning of causation
under the state statute relevant to Taylor’s case. The court therefore concluded
that Taylor’s trial attorney was “not ineffective for failing to challenge an
unsettled portion of law.”

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No. 2023AP1410

¶13 The circuit court also stated that Taylor “was aware of the issue
before sentencing, raised the issue with the [c]ourt, and then chose to abandon the
issue, and proceeded with sentencing.” The court reasoned that Taylor could not
use his “conscious choice to abandon an argument” as a basis to withdraw his
plea.

¶14 Finally, the circuit court concluded that the allegations in Taylor’s
postconviction motion were insufficient to entitle him to an evidentiary hearing.
Taylor now appeals, arguing that the court erred by denying his motion without a
hearing.

DISCUSSION

¶15 A defendant seeking to withdraw his or her plea after sentencing
“must prove, by clear and convincing evidence, that a refusal to allow withdrawal
of the plea would result in ‘manifest injustice.’” State v. Brown, 2006 WI 100,
¶18, 293 Wis. 2d 594, 716 N.W.2d 906 (citation omitted). A defendant can
establish manifest injustice by showing that his or her trial attorney was
constitutionally ineffective. See State v. Taylor, 2013 WI 34, ¶49, 347 Wis. 2d 30,
829 N.W.2d 482.

¶16 To demonstrate ineffective assistance, a defendant must show both
that counsel’s performance was deficient and that the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Counsel’s performance is deficient if it falls below an objective standard of
reasonableness. Id. at 687-88. To establish prejudice in the plea withdrawal
context, a defendant must show that, but for counsel’s deficient performance, the
defendant would not have entered a plea and would have insisted on going to trial.
See Hill v. Lockhart, 474 U.S. 52, 59 (1985).

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No. 2023AP1410

¶17 In this case, the circuit court denied Taylor’s postconviction motion
for plea withdrawal without a hearing. If a postconviction motion “on its face
alleges sufficient material facts that, if true, would entitle the defendant to relief,”
then “the circuit court must hold an evidentiary hearing.” State v. Allen, 2004 WI
106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433. The sufficiency of the facts alleged in
the motion presents a question of law that we review independently. Id.
“However, if the motion does not raise facts sufficient to entitle the movant to
relief, or presents only conclusory allegations, or if the record conclusively
demonstrates that the defendant is not entitled to relief, the circuit court has the
discretion to grant or deny a hearing.” Id.

¶18 Here, we conclude, as a matter of law, that the facts alleged in
Taylor’s postconviction motion are sufficient to entitle him to an evidentiary
hearing. The circuit court concluded that Taylor’s allegations were insufficient
because the law is unsettled regarding the applicability of the causation defense
recognized in Burrage under Wisconsin law. Accordingly, the court concluded
that Taylor’s trial attorney was not ineffective by failing to raise a causation
defense. It is well established that “[w]hen the law is unsettled, the failure to raise
an issue is objectively reasonable and therefore not deficient performance.” State
v. Jackson, 2011 WI App 63, ¶10, 333 Wis. 2d 665, 799 N.W.2d 461. Taylor’s
motion, however, did not allege that his trial attorney was ineffective by failing to
“raise” a causation defense. It alleged that trial counsel was ineffective by failing
to advise Taylor that he had a potential defense to the reckless homicide charge
and that counsel had obtained an expert opinion in support of that defense. As
Taylor notes on appeal, “[t]he problem … is not that [trial counsel] did not pursue
a causation defense, but that she did not inform Taylor about that possibility based
on an expert opinion she had obtained.”

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No. 2023AP1410

¶19 We agree that the allegations in Taylor’s postconviction motion, if
true, would be sufficient to establish that Taylor’s trial attorney performed
deficiently in this respect. Taylor’s motion alleged that: (1) trial counsel hired an
expert to render an opinion regarding the victim’s cause of death; (2) the expert
opined that it was “not possible to state medically that one single drug was a
substantial factor in [the victim’s] death”; (3) trial counsel never shared the
expert’s opinion or report with Taylor; (4) trial counsel never informed Taylor
about the possibility of asserting a causation defense; and (5) Taylor entered a
no-contest plea because he believed that he had no defense to the reckless
homicide charge.

¶20 These facts, if true, would establish that Taylor entered his
no-contest plea without the knowledge that he had a potential defense to the
reckless homicide charge. In other words, Taylor entered his plea without
sufficient information to allow him to make an informed choice as to whether to
go to trial. We agree with Taylor that, absent some strategic reason for not
informing Taylor of the potential causation defense and the expert report
supporting that defense, Taylor’s trial attorney’s alleged conduct fell below an
objective standard of reasonableness.

¶21 Moreover, Taylor’s postconviction motion also alleged
that: (1) before sentencing, Taylor received the victim’s toxicology report for the
first time and learned that the victim had additional drugs in his system, beyond
those referenced in the criminal complaint; (2) Taylor informed his trial attorney
that he wanted to withdraw his plea because the victim “had a lot more than heroin
in his system when he died”; (3) counsel did not respond favorably to Taylor’s
suggestion regarding plea withdrawal, leading Taylor to believe “that this was not
a defense”; and (4) Taylor abandoned his attempt to withdraw his plea because

9
No. 2023AP1410

counsel’s response “led [him] to believe that the toxicology issue simply offered
no defense whatsoever.”

¶22 Thus, according to Taylor’s postconviction motion, he informed his
trial attorney before sentencing that he wanted to withdraw his plea based on a
causation defense, but counsel brushed aside Taylor’s desire to do so without
informing him that she had previously investigated the same defense and had
obtained an expert opinion that supported it. Again, absent a valid strategic reason
for trial counsel’s conduct, these allegations, if true, would be sufficient to show
that trial counsel’s performance fell below an objective standard of
reasonableness.

¶23 In arguing to the contrary, the State suggests that a causation defense
would not have been viable because Burrage—the United States Supreme Court
case that Taylor cited in his postconviction motion—applied a different legal
standard of causation from the standard applicable in Wisconsin. The Burrage
Court interpreted a federal statute that imposed a mandatory minimum sentence
for certain drug crimes when “death or serious bodily injury results from the use of
such substance.” Burrage, 571 U.S. at 206 (citation omitted). The Supreme Court
held that this mandatory minimum sentence provision did not apply unless the
victim’s use of a drug distributed by the defendant was “a but-for cause of the
[victim’s] death or injury.” Id. at 218-19 (emphasis added).

¶24 In contrast, to obtain a conviction for first-degree reckless homicide
by delivery of a controlled substance under Wisconsin law, the State must prove
that the victim died “as a result of” using a controlled substance delivered by the
defendant. See WIS. STAT. § 940.02(2)(a); WIS JI—CRIMINAL 1021 (2024).
Under Wisconsin law, “[t]his requires that the use of the controlled substance was

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No. 2023AP1410

a substantial factor in causing the death.” WIS JI—CRIMINAL 1021 (2024)
(emphasis added). Given that Wisconsin law requires only that the delivery of the
drug was a substantial factor in causing the victim’s death, rather than a but-for
cause of the death, the State contends that Taylor did not have a viable causation
defense based on Burrage.

¶25 We agree with Taylor that, regardless of Burrage, Taylor had a
potential causation defense to the reckless homicide charge under Wisconsin law.
According to Taylor’s postconviction motion, the toxicology report showed that
multiple drugs were present in the victim’s system at the time of his death.
Furthermore, Tovar opined that the victim’s death was caused by the combined
effect of three different drugs and that it was “not possible to state medically that
one single drug was a substantial factor in [the victim’s] death.” (Emphasis
added.) Thus, Tovar’s opinion was tailored to Wisconsin’s “substantial factor”
causation standard and supported a defense under that standard, even absent the
Supreme Court’s decision in Burrage.

¶26 For these reasons, we conclude that the allegations in Taylor’s
postconviction motion, if true, are sufficient to establish that his trial attorney
performed deficiently, absent any valid strategic reason for counsel’s conduct. In
addition, the allegations in Taylor’s motion, if true, are sufficient to establish that
trial counsel’s alleged conduct prejudiced Taylor.

¶27 As noted above, in the plea withdrawal context, a defendant
establishes prejudice by showing that, but for counsel’s deficient performance, the
defendant would not have entered a plea and would have insisted on going to trial.
See Hill, 474 U.S. at 59. In the affidavit attached to his postconviction motion,
Taylor alleged that he “reluctantly decided to enter a [no-contest] plea to the

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No. 2023AP1410

reckless homicide charge” because he believed that he had “absolutely no
defense” to that charge. According to Taylor, he believed that because he had no
defense, “there was no point in going to trial.” Taylor also alleged that if he had
been made aware of a possible causation defense or Tovar’s opinion before he
entered his plea, he would not have entered a plea and “would instead have chosen
to go to trial.” These allegations, if true, are sufficient to establish prejudice in the
plea withdrawal context.

¶28 Moreover, Taylor’s postconviction motion also alleged that Taylor
told his trial attorney before sentencing that he wanted to withdraw his plea, but
counsel’s response led him to believe that he did not have a viable causation
defense. According to the postconviction motion, based on counsel’s response,
Taylor decided not to pursue a presentencing motion for plea withdrawal. Taylor
further alleged that if trial counsel had informed him of the possible causation
defense and Tovar’s favorable opinion before sentencing, Taylor would not have
“abandoned” his decision to withdraw his plea. The standard for withdrawing a
plea before sentencing is easier to meet than the standard for withdrawing a plea
after sentencing. See State v. Daley, 2006 WI App 81, ¶¶14, 19, 292 Wis. 2d 517,
716 N.W.2d 146 (explaining that the “fair and just reason” standard that applies to
a presentencing motion for plea withdrawal is “more lenient” than the “manifest
injustice” standard that applies after sentencing). Under these circumstances, we
again conclude that the allegations in Taylor’s postconviction motion, if true, are
sufficient to establish prejudice.3

3
In its decision denying Taylor’s postconviction motion, the circuit court stated that
Taylor “was aware of the [causation] issue before sentencing, raised the issue with the [c]ourt,
and then chose to abandon the issue, and proceeded with sentencing.” This reasoning is flawed
for two reasons.
(continued)

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No. 2023AP1410

¶29 For the foregoing reasons, we conclude that the allegations in
Taylor’s postconviction motion are sufficient to entitle him to an evidentiary
hearing on his claim for plea withdrawal. We therefore reverse the circuit court’s
order denying Taylor’s postconviction motion and remand for the court to hold an
evidentiary hearing on the motion.

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

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

First, there is nothing in Taylor’s postconviction motion—or in the appellate record—to
suggest that Taylor raised a causation defense or the issue of plea withdrawal with the court prior
to sentencing.

Second, while Taylor’s postconviction motion alleged that he was aware of the causation
issue, generally, before sentencing, he specifically alleged that he raised the issue with his trial
attorney prior to sentencing, and her response led him to believe that he did not have a viable
defense. Notably, when Taylor told his trial attorney before sentencing that he wanted to
withdraw his plea based on a potential causation defense, she did not inform Taylor that she had
already investigated that defense and had obtained an expert opinion in support of it. Accepting
these allegations as true—as a court must do when determining whether a defendant is entitled to
an evidentiary hearing on a postconviction motion, see State v. Allen, 2004 WI 106, ¶9, 274
Wis. 2d 568, 682 N.W.2d 433—it was trial counsel’s allegedly deficient performance that caused
Taylor to abandon his presentencing claim for plea withdrawal. At this stage of the proceedings,
Taylor cannot be faulted for failing to seek plea withdrawal prior to sentencing despite knowing
of a possible defense when he claims that his failure to do so was based on trial counsel’s own
conduct—which is the very conduct that Taylor now asserts was constitutionally ineffective.

13