State v. Caleb W. Dercks

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.
September 24, 2025
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. 2024AP485-CR Cir. Ct. No. 2021CF22

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CALEB W. DERCKS,

DEFENDANT-APPELLANT.

APPEAL from orders of the circuit court for Green Lake County:
MARK T. SLATE, Judge. Affirmed.

Before Neubauer, P.J., Gundrum, 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. 2024AP485-CR

¶1 PER CURIAM. Caleb W. Dercks, pro se, appeals from a
January 26, 2024 order denying a motion for reconsideration of a previous order
involving sentence credit. He also appeals from a February 23, 2024 order
denying a postconviction motion. On appeal, Dercks argues his trial counsel was
ineffective, he is entitled to plea withdrawal, the circuit court was biased, Dercks’s
sentences should be concurrent to his other sentences, and Dercks should receive
sentence credit. Because Dercks’s claims are either jurisdictionally barred,
procedurally barred, insufficiently pled, or without merit, we affirm the circuit
court’s orders.

BACKGROUND

¶2 On August 29, 2022, Dercks was convicted, following his no contest
pleas, to burglary and criminal trespass, both as a repeater. The circuit court
sentenced him to four years of initial confinement and four years of extended
supervision on the burglary charge, and one year of initial confinement and one
year of extended supervision on the criminal trespass charge. The court ordered
the sentences “to run concurrent to each other, but consecutive to any other
sentences [Dercks was] currently serving.” The court explained it ordered
consecutive sentences because concurrent sentences would “diminish[] the penalty
that is being served. Since you’re already currently serving a sentence that will be
consecutive to that sentence.” Because Dercks’s counsel had not yet determined
sentence credit, the court set credit at zero, but it agreed to grant credit if counsel
provided the information.

¶3 After he was sentenced, Dercks filed a pro se motion in the circuit
court related to sentence credit. The court initially gave Dercks some, but not all,
of his requested sentence credit. Dercks then filed a motion for sentence

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No. 2024AP485-CR

modification, seeking additional sentence credit. In response, the court again gave
Dercks some, but not all, of his requested sentence credit. Dercks then moved for
a hearing on his sentence modification motion, and the court granted his request.

¶4 At the hearing, Dercks first moved to have the circuit court recuse
itself based on his claim of judicial bias. He then argued he was entitled to
additional sentence credit. The court determined it did not have a conflict of
interest and Dercks was not entitled to additional sentence credit. On
November 13, 2023, the court entered a written order denying Dercks’s motion.

¶5 On November 28, 2023, the Department of Corrections (“DOC”)
wrote to the circuit court and informed it that the court appeared to have awarded
duplicate sentence credit. The DOC advised that Dercks had already received the
credit awarded by the court on his revocation sentences, and the court had ordered
the sentence in this case to be served consecutively to any other sentence. On
December 1, 2023, the court amended the judgment of conviction and reduced
Dercks’s sentence credit to zero.

¶6 Dercks appealed the circuit court’s November 13, 2023 order. He
did not appeal the December 1, 2023 amended judgment of conviction. On
January 2, 2024, we dismissed Dercks’s appeal after he failed to pay the filing fee.

¶7 On January 23, 2024, Dercks filed in the circuit court a motion for
“[r]econsideration of the … [m]odification of [s]entence [m]otion that was
[d]ismissed [on] November 13, 2023.” Within that motion, he requested that the
court recuse itself, modify his sentence to a concurrent sentence, determine trial
counsel was ineffective, and give Dercks sentence credit. On January 26, the court
entered a written order denying his motion without a hearing.

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No. 2024AP485-CR

¶8 On February 20, 2024, Dercks filed another motion in the circuit
court. In this motion, he requested the same relief as in his reconsideration motion
and also moved to withdraw his pleas. On February 23, the court entered a written
order denying his motion.

¶9 Dercks then filed a notice of appeal, seeking review of the
August 29, 2022 judgment of conviction as well as the November 13, 2023,
January 26, 2024, and February 23, 2024 circuit court orders.

¶10 By order dated May 15, 2024, we determined we lacked jurisdiction
over an appeal from the August 29, 2022 judgment of conviction1 and the
November 13, 2023 order.2 We concluded we had jurisdiction to review the
circuit court’s February 23, 2024 order because the notice of appeal was timely
filed, but we invited the parties to raise any concerns with the February 23 order in
their briefs.

¶11 As for the January 26, 2024 order denying Dercks’s “motion for
reconsideration,” we determined the notice of appeal was timely filed. However,
we observed that

an appeal cannot be taken from an order denying a motion
for reconsideration when that motion presents the same
issues as those determined in the order sought to be
reconsidered. See Silverton Enters., Inc. v. Gen. Cas. Co.,
143 Wis. 2d 661, 665, 422 N.W.2d 154 (Ct. App. 1988).
The concern is that a motion for reconsideration could be
improperly used to extend the time to appeal from a
1
We concluded we lacked jurisdiction over a direct appeal from the August 29, 2022
judgment of conviction because a notice of intent to pursue postconviction relief was not timely
filed.
2
We concluded we lacked jurisdiction over the November 13, 2023 order because the
notice of appeal was not timely filed.

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No. 2024AP485-CR

judgment or order when that time has expired. Id.; see also
Ver Hagen v. Gibbons, 55 Wis. 2d 21, 197 N.W.2d 752
(1972).

Because we could not determine from the record whether the order denying the
motion for reconsideration presented issues that could have been raised in an
appeal from the November 13, 2023 order, we directed the parties to address this
threshold jurisdictional issue as the “first issue in their appellate briefs.”

DISCUSSION

I. January 26, 2024 order

¶12 Consistent with our May 15, 2024 order, we begin by determining
our jurisdiction over the January 26, 2024 order. In his brief, Dercks argues that
within his “motion for reconsideration,” he brought three different claims that
were not part of a previous postconviction motion, and thus not subject to
reconsideration. He argues we have jurisdiction to review his claims for judicial
bias, for his sentence to be modified to a concurrent sentence, and for ineffective
assistance of counsel.

¶13 We agree with Dercks that we have jurisdiction to review the circuit
court’s January 26, 2024 order as it relates to Dercks’s claims that his sentence be
modified to a concurrent sentence and that he received ineffective assistance of
counsel. These claims were not included in Dercks’s original postconviction
motion, and therefore not incorporated in the November 13, 2023 order denying
his motion.

¶14 However, we do not have jurisdiction to review the circuit court’s
January 26, 2024 order as it relates Dercks’s claims involving judicial bias or
sentence credit. Starting with his judicial bias claim, although Dercks did not raise

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No. 2024AP485-CR

his judicial bias claim in writing, he asserted it at the October 23, 2023 hearing
when he alleged that the court had “a substantial conflict of interest” and should
“resign” from deciding his motion. The court determined that it had no conflict
and denied the claim. The court then denied Dercks’s motion for additional
sentence credit, entered a written order, and Dercks appealed. See WIS. STAT.
RULE 809.10(4) (2023-24)3 (“An appeal from a final judgment or final order
brings before the court all prior nonfinal judgments, orders and rulings adverse to
the appellant and favorable to the respondent made in the action or proceeding not
previously appealed and ruled upon.”).

¶15 Dercks could have raised his judicial bias claim in his prior appeal,
but we dismissed it after Dercks failed to pay the filing fee. Instead, on
January 23, 2024, Dercks moved for reconsideration, again asserting in part that
the circuit court had a conflict of interest and should recuse itself. Because
Dercks’s reconsideration motion did not raise a new issue, we lack jurisdiction to
decide his claim related to judicial bias. See Silverton, 143 Wis. 2d at 665.

¶16 As to his claim for sentence credit, although Dercks appealed the
November 13, 2023 order, he did not appeal the December 1, 2023 amended
judgment. Regardless, we could have decided Dercks’s sentence credit claim had
he pursued it in his appeal of the November 13 order. Instead, he failed to pay the
filing fee, and we dismissed the appeal. Further, in the reconsideration motion,
Dercks did not make any new claims in support of his request for sentence credit.
We therefore lack jurisdiction to consider his appeal of the circuit court’s order
denying reconsideration of its sentence credit determination. See id.

3
All references to the Wisconsin Statutes are to the 2023-24 version.

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No. 2024AP485-CR

II. February 23, 2024 order

¶17 We next turn to the circuit court’s February 23, 2024 order. In its
response brief, the State argues we lack jurisdiction over the February 23 order as
it relates to Dercks’s claims for sentence credit and judicial bias for the same
reason we lack jurisdiction over the January 24 order denying these claims.
Dercks did not file a reply brief to respond to the State’s arguments, and we deem
them conceded. See Schlieper v. DNR, 188 Wis. 2d 318, 322, 525 N.W.2d 99
(Ct. App. 1994) (propositions asserted by a respondent on appeal and not disputed
by the appellant in the reply brief are taken as admitted).

¶18 In any event, we conclude Dercks’s claims for sentence credit and
judicial bias as raised in the February motion are procedurally barred. These
issues were previously litigated, Dercks did not pursue an appeal of the circuit
court’s denial of these claims, and, consequently, he may not assert them again in
this case. See State v. Witkowski, 163 Wis. 2d 985, 990, 473 N.W.2d 512
(Ct. App. 1991) (“A matter once litigated may not be relitigated in a subsequent
postconviction proceeding no matter how artfully the defendant may rephrase the
issue.”); see also State v. Crockett, 2001 WI App 235, ¶12, 248 Wis. 2d 120, 635
N.W.2d 673 (concluding that the defendant’s argument was barred under
Witkowski because “[the defendant] raised this claim in his initial postconviction
motion, but the motion was denied and [the defendant] failed to appeal the issue”).
We therefore do not consider Dercks’s claims for sentence credit and judicial bias
further.

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No. 2024AP485-CR

III. Remaining claims

¶19 Dercks’s remaining claims relate to his motion for sentence
modification, ineffective assistance of counsel, and plea withdrawal. We address
each in turn.

A. Sentence modification

¶20 On appeal, Dercks argues his sentences should be modified to run
concurrent to his revocation sentences. Citing State v. Oglesby, 2006 WI App 95,
¶21, 292 Wis. 2d 716, 715 N.W.2d 727, Dercks asserts a sentence is presumed
concurrent unless the record demonstrates otherwise. He argues the sentences in
this case should be concurrent to his revocation sentences because the circuit court
“did not state whether or not that the consecutive sentencing in the instant case …
is to run consecutive to the revocation sentence.” He also asserts the court never
referenced any revocation sentence at sentencing.

¶21 We disagree. First, the record reflects the circuit court was aware of
Dercks’s revocation sentences. At sentencing, Dercks’s trial counsel advised the
court that Dercks “was revoked because of this; sent back to prison. That’s where
he is now.” The court observed that Dercks was “already currently serving a
sentence,” and it then unequivocally ordered that Dercks’s sentences in this case
would run “consecutive to any other sentences you are currently serving.” The
court explained it was ordering his sentences be served “consecutive to any other
sentence, as we have separate time and place,” and a concurrent sentence would
“diminish[] the penalty that is being served.” Based on the record, we conclude
the circuit court did not err by denying Dercks’s motion to modify his sentences to
run concurrent to his revocation sentences.

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No. 2024AP485-CR

B. Ineffective assistance of counsel

¶22 Dercks next argues counsel was ineffective. “A motion claiming
ineffective assistance of counsel does not automatically trigger a right to a
Machner[4] testimonial hearing[.]” State v. Phillips, 2009 WI App 179, ¶17, 322
Wis. 2d 576, 778 N.W.2d 157. The circuit court has discretion to deny an
evidentiary hearing if “the defendant fails to allege sufficient facts in his or her
motion, if the defendant presents only conclusory allegations or subjective
opinions, or if the record conclusively demonstrates that he or she is not entitled to
relief.” Id.

¶23 To prevail on a claim of ineffective assistance of counsel, the
defendant must prove both that his lawyer’s representation was deficient and that
he suffered prejudice because of that deficient performance. Strickland v.
Washington, 466 U.S. 668, 687 (1984). Dercks argues trial counsel was
ineffective for failing to move for sentence credit at sentencing.

¶24 However, the record demonstrates that Dercks was not entitled to
sentence credit in this case. The circuit court ordered Dercks to serve his
sentences consecutively to any other previously imposed sentence, and Dercks had
already received the requested sentence credit on his revocation sentences.
Double counting or “dual credit” for the same time in custody is not available on
consecutive sentences. See State v. Boettcher, 144 Wis. 2d 86, 99-100, 423
N.W.2d 533 (1988). Counsel was not deficient for failing to pursue a sentence
credit motion. See State v. Berggren, 2009 WI App 82, ¶21, 320 Wis. 2d 209, 769

4
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2024AP485-CR

N.W.2d 110 (concluding trial counsel’s performance is never deficient for failing
to bring a motion that the circuit court would have denied).

¶25 Because Dercks did not establish that trial counsel performed
deficiently by failing to pursue a sentence credit motion, his motion is
insufficiently pled. The circuit court did not err by denying his ineffective
assistance of counsel motion without a hearing. See Phillips, 322 Wis. 2d 576,
¶17.

C. Plea withdrawal

¶26 Finally, Dercks argues that he is entitled to plea withdrawal. A
defendant seeking to withdraw a plea after sentencing must establish plea
withdrawal is necessary to correct a manifest injustice. State v. Savage, 2020 WI
93, ¶24, 395 Wis. 2d 1, 951 N.W.2d 838. Dercks does not develop an argument as
to why plea withdrawal is necessary in this case. He simply offers a single
sentence that he is seeking plea withdrawal “because of the prejudicial and critical
complexity [of] errors that has repeatedly taken place.” We conclude this
argument is undeveloped, and we do not consider it further. See State v. Pettit,
171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (we need not consider
undeveloped arguments).

By the Court.—Orders affirmed.

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

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