State v. Dennis J. Gross

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.
October 11, 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. 2020AP2064 Cir. Ct. No. 2012CF870

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DENNIS J. GROSS,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Outagamie County:
EMILY I. LONERGAN,1 Judge. Affirmed.

Before Stark, P.J., Hruz and Donald, JJ.

1
Judge Michael W. Gage presided over the trial and Judge Nancy J. Krueger handled
some proceedings, but Judge Emily I. Lonergan handled the postconviction motion at issue on
this appeal.
No. 2020AP2064

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. Dennis Gross appeals from an order denying his
postconviction motion for plea withdrawal. Gross contends that he entered his
no-contest pleas as the result of ineffective assistance of counsel during a trial to
the circuit court. We conclude that Gross’s trial counsel did not perform
deficiently and affirm.

BACKGROUND

¶2 This case has a long and complex procedural history. The State
charged Gross with attempted first-degree intentional homicide, two felony counts
of strangulation, and four misdemeanors. Gross did not contest the misdemeanors
or one of the strangulation counts, and he sought a trial to the court on the
attempted homicide count and the remaining strangulation count.

¶3 At trial, a woman, whom we will call “Dana,”2 testified as follows.
Dana said that she and Gross began dating in 2011 and moved in together shortly
thereafter, along with Dana’s three children. In October of 2012, Gross and Dana
got into a fight, after which Gross threw out Dana’s clothing, and Dana decided to
leave the relationship. A few days after the clothing incident, Dana returned to the
house she had shared with Gross looking for one of her daughters, who, according
to Gross, was sleeping there.

2
This matter involves the victim of a crime. Pursuant to WIS. STAT. RULE 809.86(4)
(2019-20), we use a pseudonym instead of the victim’s name. All references to the Wisconsin
Statutes are to the 2019-20 version unless otherwise noted.

2
No. 2020AP2064

¶4 When Dana entered the house, Gross locked the door behind her.
Upon discovering that her daughter was not in the house as Gross had claimed,
Dana went into the bathroom to call her sister for help because she believed things
were going to “be ugly.” Gross entered the bathroom and took Dana’s phone and
refused to give it back. Gross then threw Dana from the toilet onto the floor so
violently that the toilet seat broke off, and he began calling her a “slut” and a
“whore.” As Dana lay on the floor, Gross tried to force a toothbrush down her
throat, and he then began hitting her head with the toilet seat as she cried, begged
him to stop, and tried to get away. Gross then tried to push Dana’s head into the
toilet, saying, “You’re going to die, Bitch.” At that point, Dana was able to push
him away and run out of the bathroom.

¶5 Gross caught up to Dana in the living room, again threw her on the
ground, straddled her, and began hitting her in the face. Gross then grabbed a
nearby broom and pressed it against Dana’s throat, choking her. When Dana
rolled over onto her stomach in an attempt to protect herself, Gross began beating
her on the back with the broom. Gross then “jump[ed]” on Dana’s chest more
than once, with his knee making contact in an area where she had triple bypass
surgery. While jumping on her chest, Gross told Dana he was “going to break
these fuckin’ wires so hopefully they’ll stab you in the heart and you’ll die,” and
he also said, “We’re both going to die. You’re going to die first, and then I’ll kill
myself.” Gross next began choking Dana with his hands around her neck until she
began “seeing stars,” while repeatedly asking her, “Are you going to die yet,
Bitch? When are you gonna fuckin’ die?”

¶6 As Dana lay curled up in a fetal position crying, Gross got up,
kicked Dana multiple times, retrieved a hammer, and then used the claw end of the
hammer to try to pry Dana’s teeth out. Gross next pulled off Dana’s pajama

3
No. 2020AP2064

bottoms and hit her hand with the hammer when she tried to resist. Gross told
Dana, “This hammer’s going up your fuckin’ ass,” and he tried to insert the handle
end in her anus. Finally, Gross “took a break” and lay down on the couch with the
hammer. Dana ran out of the house and sought help from a neighbor.

¶7 The neighbor called 911. At trial, the neighbor testified that Dana
was wearing only a T-shirt and appeared “beaten and bloody” with injuries to her
face and hand. The responding police officer also observed that Dana had
multiple injuries and further noted that she was crying and appeared to have
difficulty breathing. The officer contacted dispatch to request medical assistance,
and Dana was transported first to a medical center and then to a hospital, where
her injuries were examined and documented by two nurses. Meanwhile, police
searched Gross’s house and photographed the tank of the toilet which was on the
floor, the lid which “had been ripped completely off the toilet,” a hammer on the
sofa, clothing scattered on the floor, a broom handle in the hallway, and blood on
the bathroom floor. Shortly thereafter, based upon a tip, police apprehended Gross
hiding in the basement of a nearby house.

¶8 The defense presented no witnesses. The circuit court conducted a
colloquy to verify that Gross knowingly and voluntarily waived his right to testify.
Following the close of evidence but before closing argument, Gross reached a plea
agreement with the State pursuant to which he pled no contest to a reduced charge
of first-degree recklessly endangering safety, one of the strangulation counts, and
all of the misdemeanors, with the remaining strangulation count dismissed and
read in. All but one of the pled-to counts included a domestic abuse enhancer.
The court sentenced Gross to seven years and six months of initial confinement
followed by five years of extended supervision on the reckless endangerment
count, with a consecutive sentence of one year of initial incarceration and one year

4
No. 2020AP2064

extended supervision on the count of witness intimidation and with lesser
concurrent sentences on the strangulation, battery, and disorderly conduct counts.
The court also imposed a consecutive one-year term of probation on the trespass
count.

¶9 Gross filed a notice of intent to seek postconviction relief. However,
after his appointed postconviction counsel, Ann Auberry, advised him that she had
found no arguably meritorious appellate issues, Gross, pro se, agreed to close his
file without pursuing a direct appeal. Gross subsequently filed two pro se motions
and an appeal seeking to obtain materials from his case file that he claimed not to
have received from Auberry.

¶10 In 2017, Gross filed a pro se postconviction motion and amended
motion under WIS. STAT. § 974.06, seeking relief from his convictions on the
following grounds: (1) an “unconstitutional search and seizure” because
authorities took materials from Gross’s jail cell without a warrant; (2) ineffective
assistance of Gross’s first trial counsel, Leonard Kachinsky, for withdrawing
under “false pretense,” leading to a violation of Gross’s right to a speedy trial;
(3) a “coerced confession” and infringement of Gross’s right against
self-incrimination because Gross’s second trial counsel, Jeffrey Jazgar, advised
him to “concede to things he did not do”; (4) “perjured testimony” by Dana during
Gross’s abandoned trial to the court; and (5) lack of jurisdiction to impose
sentence on Gross as a result of the other alleged errors. The circuit court
scheduled an evidentiary hearing on Gross’s postconviction motion and appointed
a new attorney, Chadwick Kaehne, to represent Gross.

¶11 Kaehne filed a supplement to Gross’s postconviction motion, raising
an additional claim that Jazgar provided ineffective assistance by failing to

5
No. 2020AP2064

challenge the domestic abuse penalty enhancements. Kaehne subsequently
withdrew from representing Gross, citing irreconcilable differences, and the circuit
court appointed Attorney Erica Bauer to represent Gross at the postconviction
motion hearing. Bauer advised the court that it was her intention to proceed solely
upon the supplemental motion filed by Kaehne. In response, Gross informed the
court that it was not his intention to abandon the claims in his initial
postconviction motion. At an evidentiary hearing held in 2019, the court directed
Bauer to proceed on the penalty enhancement claim but it appointed Attorney
Robert Meyeroff to succeed Bauer. The court then issued a written order denying
the penalty enhancement claim, but expressly holding open the issues Gross raised
in his original postconviction motion so that Meyeroff could “explore the matters
further.”

¶12 Meyeroff subsequently filed a second supplement to the
postconviction motion, alleging that Gross was induced to enter his pleas because
his trial counsel provided ineffective assistance by: (1) failing to have Gross
testify at his abandoned trial in support of a self-defense claim; (2) failing to
interview or call additional witnesses identified by Gross who could address
Dana’s character; (3) failing to obtain and introduce Dana’s medical records
regarding a condition that made her bruise easily; (4) failing to challenge Dana’s
credibility based upon her bipolar disorder and use of Adderall; and (5) failing to
question why no bite marks were found on a toothbrush that Dana testified she had
bitten when Gross shoved it down her throat.

¶13 The circuit court held a second evidentiary hearing on Gross’s
still-pending plea withdrawal motion, this time focused on the claims developed in
Meyeroff’s supplement. Jazgar testified that, after reviewing all the discovery
materials, he and Gross had jointly decided upon a trial strategy of maintaining

6
No. 2020AP2064

that the State had overcharged Gross based upon what had actually occurred and it
could not meet its burden of proof. Although he could no longer specifically
recall his conversations with Gross about taking the stand, Jazgar testified that he
would have advised Gross about the dangers of cross-examination and the
introduction of Gross’s prior convictions. Jazgar did not investigate or present any
other witnesses because Gross and Dana “were the only two parties there that
night.”

¶14 Gross testified that he had told Jazgar details about the fight that
differed significantly from Dana’s account—including that Dana had initiated
physical contact during the incident by biting his leg in the bathroom, by attacking
him with a broom while he was sitting on the couch in the living room, and by
grabbing a hammer and hitting him with it on the head after the two struggled over
the broom. Gross said Jazgar advised him not to testify because the district
attorney would “eat [him] alive,” Gross would not be able to explain all of Dana’s
bruising, and no one would believe him.

¶15 Gross further testified he had told Jazgar months before trial that
Dana’s sister could testify about how much Dana had to drink prior to the incident
and if she had been taking drugs that night, about prior bar fights Dana had
participated in, and about Dana’s reputation for being untruthful. Gross also told
Jazgar about another man who could have testified to Dana’s “character, her
fighting, her lying, her drinking and drug use.” Finally, Gross asserted he had told
Jazgar that Dana was bipolar and suffered from a condition that led her to bruise
more easily than the average person. Gross did not produce any of these proposed
witnesses at the hearing to corroborate his assertions as to what testimony they
could have provided.

7
No. 2020AP2064

¶16 The circuit court determined that Jazgar had followed a reasonable
defense strategy of challenging the State’s ability to meet its burden of proof and
that any evidence regarding Dana’s alcoholism or mental health issues was not
relevant to the defense theory. The court issued a final written order denying
Gross’s supplemented postconviction motion, from which Gross appeals.

DISCUSSION

¶17 On this appeal, Gross renews the claims from the second supplement
to his postconviction motion that he should be allowed to withdraw his no-contest
pleas because Jazgar: (1) advised him not to take the stand; and (2) failed to
investigate or call any witnesses to challenge Dana’s credibility.

¶18 As a threshold matter, the State contends that Gross’s current claims
are procedurally barred by his prior discovery motions and appeal and by his
failure to include the claims as they are currently framed in his initial pro se
postconviction motion. See generally State v. Escalona-Naranjo, 185 Wis. 2d
168, 185, 517 N.W.2d 157 (1994). We note, however, that the discovery motions
and appeal did not themselves seek relief from Gross’s convictions. Rather, they
sought assistance in assembling the materials Gross believed he needed to file his
postconviction motion under WIS. STAT. § 974.06. Additionally, we are not
persuaded that the second supplement to Gross’s postconviction motion—which
expanded upon aspects of the original motion related to Dana’s credibility and
Gross’s claim of innocence—constituted a separate, successive motion. Rather,
given that the circuit court expressly held open issues from the original motion and
invited counsel to “explore” those issues, we view the second supplement as a
continuation of Gross’s original postconviction proceeding seeking plea

8
No. 2020AP2064

withdrawal. We therefore decline to apply a procedural bar here and will address
the merits of Gross’s current plea withdrawal claims.

¶19 A defendant seeking to withdraw a plea after sentencing on grounds
other than a defective plea colloquy must demonstrate by clear and convincing
evidence that refusal to allow plea withdrawal would result in a “manifest
injustice,” raising “serious questions affecting the fundamental integrity of the
plea.” State v. Dillard, 2014 WI 123, ¶83, 358 Wis. 2d 543, 859 N.W.2d 44
(citation omitted). One way to demonstrate manifest injustice is to show that the
defendant received ineffective assistance of counsel. Id., ¶84.

¶20 We employ a mixed standard of review to claims of ineffective
assistance of counsel. We will uphold the circuit court’s findings of evidentiary
fact unless they are clearly erroneous. State v. Jeninga, 2019 WI App 14, ¶13,
386 Wis. 2d 336, 925 N.W.2d 574. We will independently determine, however,
whether those facts establish a violation of the defendant’s constitutional right to
counsel. Id. Additionally, in making the ultimate determination as to whether a
manifest injustice has occurred, we may consider the totality of the circumstances
shown in the record—including post-plea materials. State v. Thomas, 2000 WI
13, ¶18, 232 Wis. 2d 714, 605 N.W.2d 836.

¶21 To establish a claim of ineffective assistance, a defendant must
prove two elements: (1) deficient performance by counsel; and (2) prejudice
resulting from that deficient performance. State v. Sholar, 2018 WI 53, ¶32, 381
Wis. 2d 560, 912 N.W.2d 89. We need not address both elements of the test if the
defendant fails to make a sufficient showing on one of them. State v. Swinson,
2003 WI App 45, ¶58, 261 Wis. 2d 633, 660 N.W.2d 12. Here, we conclude that
Gross has failed to demonstrate that his trial counsel performed deficiently.

9
No. 2020AP2064

¶22 In order to demonstrate deficient performance, a defendant must
overcome a presumption that counsel’s actions fell within a wide range of
reasonable professional conduct. Strickland v. Washington, 466 U.S. 668, 689
(1984). “The question is whether an attorney’s representation amounted to
incompetence under ‘prevailing professional norms,’ not whether it deviated from
best practices or most common custom.” Harrington v. Richter, 562 U.S. 86, 105
(2011) (citation omitted). “[A] fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689.
Reasonable strategic choices informed by counsel’s investigation of the law and
facts are virtually unchallengeable on appeal. Id. at 690.

¶23 Here, the circuit court’s factual finding that Jazgar made a strategic
decision to challenge the State’s ability to meet its burden of proof is directly
supported by Jazgar’s testimony at the second postconviction hearing and is not
clearly erroneous. That strategy was reasonably premised upon Dana’s own
acknowledgement that Gross had discontinued the attack and lay down on the
couch—actions that could be argued to undermine the necessary element of intent
for the attempted first-degree homicide charge. Given that the defense strategy
did not require disproving Dana’s account of the attack, Jazgar had no need to
investigate or present additional witnesses to undermine Dana’s credibility.
Moreover, further cross-examination of Dana could have backfired, given her
extensive injuries. Similarly, Jazgar soundly advised Gross about the dangers of
cross-examination insomuch as Gross had no credible way to explain the extent of
Dana’s injuries in comparison to his own lack of injuries. Again, it was
reasonable to advise Gross to avoid that danger by not testifying when the defense

10
No. 2020AP2064

strategy did not depend upon discrediting Dana. Therefore, Jazgar’s performance
was not deficient.

¶24 Although we could end our analysis there, we further note that Gross
failed to establish prejudice regarding Jazgar’s failure to investigate or call
additional witnesses because none of the proposed witnesses testified at the
postconviction hearing. Gross also failed to develop any argument on appeal as to
why he would not have entered his pleas if his counsel had advised him to testify.
Gross had already informed the circuit court prior to the trial that he did not
contest one of the strangulation counts or any of the misdemeanor charges. The
plea deal essentially validated Gross’s position that the State had overcharged on
the homicide count and the other strangulation count, and it greatly reduced his
sentence exposure. We conclude that the court properly denied Gross’s plea
withdrawal motion.

By the Court.—Order affirmed.

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

11