State v. Robin Paul Bildeau

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 6, 2022
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. 2021AP591-CR Cir. Ct. No. 2016CF282

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ROBIN PAUL BILDEAU,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Sawyer County: JOHN P. ANDERSON, Judge. Affirmed.

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).

¶1 PER CURIAM. Robin Bildeau appeals from a judgment convicting
him of one count of child enticement (intent to cause mental or bodily harm).
No. 2021AP591-CR

Bildeau also appeals from an order denying his motion for postconviction relief.
At sentencing, the State recommended that the circuit court order Bildeau to
register as a sex offender for a period of fifteen years. Bildeau contends that his
trial attorney was constitutionally ineffective by stating that Bildeau had no
objection to the State’s recommendation in that regard. We conclude Bildeau has
failed to establish that his trial attorney performed deficiently. We therefore
affirm.

BACKGROUND

¶2 Before Bildeau was charged in the instant case, he had been
convicted twice of offenses involving sexual misconduct. As relevant to this
appeal, in June 2016, Bildeau was convicted of third-degree sexual assault in
Sawyer County case No. 2015CF258. Bildeau was sentenced to two years’ initial
confinement followed by three years’ extended supervision on the third-degree
sexual assault charge.

¶3 Third-degree sexual assault is a sex offense for purposes of the sex
offender registration statute. See WIS. STAT. § 301.45(1d)(b) (2019-20) (defining
the term “sex offense” to include a violation of WIS. STAT. § 940.225(3)
(2019-20)).1 As such, a person convicted of third-degree sexual assault is
statutorily required to register as a sex offender for a period of fifteen years after
being discharged from extended supervision. See § 301.45(5)(a)2. Bildeau is
scheduled to be discharged from extended supervision in case No. 2015CF258 on

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

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No. 2021AP591-CR

January 24, 2033.2 Accordingly, Bildeau will be required to register as a sex
offender as a result of his conviction in case No. 2015CF258 until January 24,
2048.

¶4 In December 2016, the State filed a criminal complaint in this case
charging Bildeau with first-degree sexual assault of a child (contact with a child
under age thirteen), contrary to WIS. STAT. § 948.02(1)(e). According to the
complaint, a child reported that Bildeau had “put his ‘pee pee’ in her butt.” The
assault was alleged to have occurred in July 2013, when the child was three years
old.

¶5 First-degree sexual assault of a child (contact with a child under age
thirteen) is a Class B felony and carries a maximum sentence of sixty years’
imprisonment. WIS. STAT. §§ 939.50(3)(b), 948.02(1)(e). Additionally, first-
degree sexual assault of a child is a sex offense for purposes of the sex offender
registration statute, and a person convicted of that crime is statutorily required to
register as a sex offender for the remainder of his or her life. WIS. STAT.
§ 301.45(1d)(b), (5)(b)1m.

¶6 Pursuant to a plea agreement, Bildeau ultimately pled no contest to a
reduced charge of child enticement (intent to cause mental or bodily harm),
contrary to WIS. STAT. § 948.07(5). In exchange for Bildeau’s no-contest plea to
the child enticement charge, the State agreed to cap its sentence recommendation
at the recommendation contained in the presentence investigation report (PSI)

2
Bildeau’s sentence in the instant case was ordered to run consecutively to his sentence
in case No. 2015CF258. As a result, Bildeau will not be discharged from extended supervision in
case No. 2015CF258 until January 2033.

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No. 2021AP591-CR

prepared by the Wisconsin Department of Corrections (DOC). Child enticement is
a Class D felony with a maximum sentence of twenty-five years’ imprisonment.
See WIS. STAT. §§ 939.50(3)(d), 948.07. The form of child enticement to which
Bildeau pled is not a sex offense, for purposes of the sex offender registration
statute. See WIS. STAT. § 301.45(1d)(b). However, a circuit court has discretion
to require a person convicted of that offense to register as a sex offender if the
court determines that the underlying conduct was sexually motivated and that it
would be in the interest of public protection to require sex offender registration.
WIS. STAT. § 973.048(1m)(a).

¶7 The DOC’s PSI recommended that the circuit court sentence Bildeau
to eight to fifteen years’ initial confinement followed by four to five years’
extended supervision. The PSI also recommended that the court require Bildeau
to register as a sex offender for fifteen years. The defense submitted an alternative
PSI, which recommended a sentence consisting of eight years’ initial confinement
and ten years’ extended supervision. The alternative PSI also recommended that
Bildeau be ordered to “[c]omply with SORP,” i.e., the sex offender registry
program.

¶8 At sentencing, the State recommended that the circuit court sentence
Bildeau to fifteen years’ initial confinement followed by five years’ extended
supervision, consistent with the recommendation in the DOC’s PSI. The State
also agreed with the recommendation in the DOC’s PSI that the court order
Bildeau to register as a sex offender for fifteen years.

¶9 Bildeau’s trial attorney, Stephen Willett, argued that “a substantial
period of probation” with “very strict guidelines” was appropriate. Willett
asserted that absent any mitigating or aggravating factors, under the DOC’s

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sentencing guidelines, Bildeau’s sentence should be “4 to 5 years initial
incarceration followed by … 3 to 4 years extended supervision.” Willett argued,
however, that in Bildeau’s case, various mitigating factors justified probation. For
example, Willett noted that since the assault at issue in this case occurred, Bildeau
had served time in prison for an unrelated offense and had participated in
treatment programs while in prison. Willett also noted that after Bildeau was
released from prison, he had engaged in education and treatment and had secured
employment, all of which were “stabilizing factors.”

¶10 With respect to the sex offender registry, Willett observed that
Bildeau was “already registered as a sex offender” based on his conviction in case
No. 2015CF258. Willett then stated that Bildeau did not “have any objection” to
the circuit court ordering a fifteen-year registration period in the instant case.
Willett explained that “when someone is under the sex offender registration, the
monitoring becomes substantially higher.” Willett therefore argued that the strict
monitoring provided by the sex offender registry would adequately protect the
public, thus eliminating the need for confinement and allowing Bildeau to be
placed on probation.

¶11 The circuit court sentenced Bildeau to twelve years’ initial
confinement followed by six years’ extended supervision, consecutive to his
sentence in case No. 2015CF258. The court also found, based on the facts alleged
in the criminal complaint, that Bildeau’s crime was “sexually motivated.”
Accordingly, the court ordered Bildeau to register as a sex offender for fifteen
years following his discharge from extended supervision.

¶12 Bildeau filed a motion for postconviction relief. As relevant to this
appeal, Bildeau argued that Willett was constitutionally ineffective by

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“stipulat[ing] to the [S]tate’s request that the court order 15 years of sex offender
registration—despite [Bildeau’s] express wishes to avoid time on the registry.” In
his motion, Bildeau alleged that he “made clear” to Willett that “he was concerned
about having to register as a sex offender” and that he “wanted to avoid that
outcome if at all possible.” Bildeau contended that Willett rendered ineffective
assistance by disregarding his wishes and failing to object to the State’s request for
fifteen years of registration. Willett further argued that the appropriate remedy
was resentencing before a different judge.

¶13 The circuit court held a Machner3 hearing, during which both
Willett and Bildeau testified. Willett testified that before Bildeau entered his plea,
they discussed the fact that a conviction for first-degree sexual assault of a child—
the offense with which Bildeau was originally charged—would have required
Bildeau to register as a sex offender for the rest of his life. They also discussed
the fact that a conviction for any sex offense would have required lifetime
registration because Bildeau had previously been convicted of a sex offense in
case No. 2015CF258. See WIS. STAT. § 301.45(5)(b)1. Willett acknowledged
that, during these discussions, Bildeau stated he wanted to avoid lifetime
registration. Willett testified he explained to Bildeau that child enticement in
violation of WIS. STAT. § 948.07(5) is not a sex offense, and Bildeau therefore
“knew” that pleading to that offense was “not going to [result in mandatory]
lifetime registration.”

¶14 Nevertheless, Willett testified that he also told Bildeau it was
“possible” that the circuit court would order him to register as a sex offender if he

3
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2021AP591-CR

pled to the reduced child enticement charge, based on the sexual nature of the
conduct alleged in the criminal complaint. Willett explained that because Bildeau
was already required to register as a sex offender based on his previous Sawyer
County conviction, a fifteen-year registration requirement in the instant case
would only extend his existing registration period by “three, four years.” Willett
testified that given these circumstances, Bildeau was not “concerned” about the
possibility of a fifteen-year registration requirement, rather, “he was concerned
about the lifetime.” Bildeau therefore “left it up to [Willett] in trial strategy how
[he] would approach … the 15[-]year registration.”

¶15 Willett further testified that Bildeau’s “one, and only one,
consideration” in entering into a plea agreement was to reduce his sentencing
exposure. According to Willett, Bildeau was aware that he had a “very significant
criminal record,” so he instructed Willett to “do [his] level best to … have this
matter reduced.” Willett testified that Bildeau “wasn’t as concerned about the sex
offender registry as he was about the possibility of being incarcerated.”

¶16 Because Bildeau had given Willett discretion as to how to handle the
possibility of a fifteen-year registration requirement, Willett testified that he
decided to use the prospect of sex offender registration “as a positive argument for
reducing the [sentencing] exposure that Mr. Bildeau faced.” Willett explained that
he was familiar with the sentencing judge and knew that, historically, one of the
judge’s main concerns was the protection of the public. Willett therefore
attempted to convince the judge that “the public was going to be protected” even if
Bildeau was placed on probation because the sex offender registry “keeps track of
where people are” and is “very aggressive about that.” Willett explained that this
strategy was consistent with Bildeau’s directive that Willett should “argue for the
least amount of time possible, in as far as being incarcerated.”

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No. 2021AP591-CR

¶17 Bildeau testified at the Machner hearing that he could not remember
to what extent he and Willett had discussed the State’s plea offer before he entered
his plea. Bildeau also testified, however, that one of his goals in accepting a plea
deal was to avoid more time on the sex offender registry and that he specifically
told Willett that he did not want “any more time on the registry.” Bildeau further
testified that he never told Willett that he was willing to agree to more time on the
registry and that Willett never asked whether he could tell the circuit court that
Bildeau would not object to more time on the registry.

¶18 The circuit court denied Bildeau’s postconviction motion. Based on
the testimony presented at the Machner hearing, the court found that Bildeau had
“twin objectives” in entering into the plea agreement—“little or no more [prison]
time, [and] little or no more registration.” The court agreed with Willett that,
under the circumstances of this case, “15 years of additional registration … really
wouldn’t be 15 years.” Instead, it “might be five or six years,” given that Bildeau
was already required to register as a sex offender in case No. 2015CF258. Under
these circumstances, the court found credible Willett’s testimony that Bildeau had
deferred to his judgment regarding how to handle the possibility of a fifteen-year
registration requirement. Conversely, the court found Bildeau’s testimony that he
told Willett he did not want any additional registration time to be incredible.

¶19 The circuit court also rejected Bildeau’s argument that Willett’s
strategy of not objecting to fifteen years of sex offender registration in the hope of
obtaining a probationary disposition was objectively unreasonable because
probation was not “a reasonable prospect at sentencing.” The court explained that,
given all of the factors that the court considered at sentencing, both of Bildeau’s
objectives—i.e., “little or no more [prison] time, [and] little or no more
registration”—were equally “weak.” The court stated that an attorney who makes

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a strategic decision when faced with “twin weak objectives” does not perform
deficiently simply because his or her choice of strategy does not ultimately
“work.” Stated differently, the court reasoned that under the difficult
circumstances presented here, Willett was not deficient for failing “to secure the
perfect outcome at sentencing.”

DISCUSSION

¶20 Whether an attorney rendered ineffective assistance is a mixed
question of fact and law. State v. Nielsen, 2001 WI App 192, ¶14, 247 Wis. 2d
466, 634 N.W.2d 325. We will uphold the circuit court’s findings of fact unless
they are clearly erroneous. Id. However, whether the facts establish ineffective
assistance is a question of law that we review independently. Id.

¶21 To prevail on an ineffective assistance claim, 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). If a
defendant fails to establish one of these prongs, we need not address the other.
See id. at 697. Here, we conclude Bildeau has failed to show that Willett
performed deficiently. Accordingly, we need not address prejudice.

¶22 To establish deficient performance, a defendant must show that trial
counsel’s performance fell below an objective standard of reasonableness. State v.
Breitzman, 2017 WI 100, ¶38, 378 Wis. 2d 431, 904 N.W.2d 93. “In general,
there is a strong presumption that trial counsel’s conduct ‘falls within the wide
range of reasonable professional assistance.’” Id. (citation omitted). Moreover,
we give “great deference” to counsel’s strategic decisions. Id. (citation omitted).
In fact, “strategic choices made after thorough investigation of law and facts

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No. 2021AP591-CR

relevant to plausible options are virtually unchallengeable” on appeal. Strickland,
466 U.S. at 690.

¶23 In this case, Bildeau argues that Willett performed deficiently at
sentencing by stating—without Bildeau’s permission—that Bildeau did not object
to the circuit court ordering him to register as a sex offender for a period of fifteen
years. Bildeau contends that by making that concession, Willett “contravened”
Bildeau’s goal of “avoiding more time as a registered sex offender.” In support of
this argument, Bildeau asserts the court expressly found that one of Bildeau’s
objectives in this case was “avoiding more time on the registry.” Bildeau contends
that Willett had an ethical responsibility to zealously pursue that goal on Bildeau’s
behalf and that his failure to do so—without first obtaining Bildeau’s
permission—constituted deficient performance. Bildeau further argues that
Willett performed deficiently because he “offered his impermissible stipulation [to
fifteen years of sex offender registration] in pursuit of an irrational sentencing
strategy.” In other words, Bildeau contends that Willett’s choice of strategy at
sentencing was objectively unreasonable.

¶24 Bildeau’s argument rests on a faulty premise. Contrary to Bildeau’s
assertion, the circuit court did not find that one of Bildeau’s objectives in this case
was to avoid spending any more time on the sex offender registry. Rather, the
court found that Bildeau had twin objectives, one of which was “little or no more
registration.” (Emphasis added.) The court expressly found Bildeau’s testimony
that he told Willett he did not want any additional registration time to be
incredible. Bildeau does not argue on appeal that any of the court’s factual
findings or credibility determinations were clearly erroneous.

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No. 2021AP591-CR

¶25 The circuit court also found credible Willett’s testimony that Bildeau
deferred to his judgment on how to handle the possibility of a fifteen-year
registration requirement. In addition, the court noted that because Bildeau was
already required to register as a sex offender for fifteen years in case
No. 2015CF258, ordering him to register as a sex offender for fifteen years in the
instant case would not actually result in fifteen additional years of registration, but
instead only about five or six more years.

¶26 Under these circumstances, and particularly given the discretion
granted to him by Bildeau, Willett could reasonably decide that the best strategy at
sentencing was to accede to the State’s recommendation of fifteen years of sex
offender registration—which would actually result in only five or six additional
years on the sex offender registry—and to argue that the close supervision
provided by the registry would sufficiently protect the public, such that the court
could place Bildeau on probation instead of sentencing him to prison. This
strategy was consistent with Bildeau’s directive that Willett should “argue for the
least amount of time possible, in as far as being incarcerated.”

¶27 Bildeau nevertheless argues that Willett’s choice of strategy was
objectively unreasonable. He contends:

[F]or a Class D felony conviction based on Class B felony
facts, for a case in which the PSI recommended between 12
and 20 years of imprisonment and the State recommended
20, and for a defendant with (as the circuit court put it at
sentencing) “a horrible prior history of rehabilitation,”
probation with no condition time was an unreasonable
request—with or without a registry stipulation.

¶28 As the circuit court aptly noted, Bildeau presented Willett with two
“equally weak” objectives—“little or no more [prison] time, [and] little or no more

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registration.” Given the discretion that Bildeau granted Willett in determining
how to handle the issue of the sex offender registry, and given Willett’s belief that
Bildeau’s primary objective was to reduce his sentencing exposure, Willett could
reasonably decide to pursue a probationary disposition, at the expense of adding
five or six years to Bildeau’s time on the sex offender registry. We will not
second-guess Willett’s reasonable strategic decision in that regard. See
Strickland, 466 U.S. at 690. Instead, we agree with the circuit court that, under
the difficult circumstances presented here, Willett’s failure to “secure the perfect
outcome at sentencing” did not constitute deficient performance.

By the Court.—Judgment and order affirmed.

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

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