State v. Herman Whiterabbit

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.
December 26, 2019
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. 2018AP2343 Cir. Ct. No. 1991CF1660

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

HERMAN WHITERABBIT,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Dane County:
JILL KAROFSKY, Judge. Affirmed.

Before Fitzpatrick, P.J., Kloppenburg and Nashold, 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. 2018AP2343

¶1 PER CURIAM. Herman Whiterabbit appeals an order denying his
WIS. STAT. § 974.06 (2015-16)1 postconviction motion. Whiterabbit contends that
his trial counsel, James Ewers, was per se ineffective because following
Whiterabbit’s trial Ewers was disbarred for illegal conduct that occurred prior to
the trial. Whiterabbit also contends that the circuit court erred by denying his
ineffective assistance of counsel claim on the ground that it was procedurally
barred under State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157
(1994). We reject Whiterabbit’s claim that his trial counsel was per se ineffective,
and we affirm on that basis. See State v. Trecroci, 2001 WI App 126, ¶45, 246
Wis. 2d 261, 630 N.W.2d 555 (we may affirm the circuit court’s decision on other
grounds than relied on by the court). Accordingly, we need not address whether
the procedural bar applies.

¶2 In November 1991, Whiterabbit was charged with three counts of
second-degree sexual assault, as a repeater. Attorney Ewers represented
Whiterabbit at trial. A jury found Whiterabbit guilty of all counts. He was
convicted on April 30, 1992 and sentenced to thirty-six years in prison.

¶3 Whiterabbit appealed, and this court affirmed the conviction in April
1995. State v. Whiterabbit, No. 1993AP2347-CR, unpublished slip op. (WI App
April 20, 1995). In 2001, Whiterabbit moved for a new trial based on newly
discovered evidence. The circuit court denied the motion, and this court affirmed
the circuit court order in May 2002. State v. Whiterabbit, No. 2001AP2232,
unpublished slip op. (WI App May 16, 2002).

1
All references to the Wisconsin Statutes are to the 2015-16 version.

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¶4 In September 2017, Whiterabbit filed the WIS. STAT. § 974.06
motion underlying this appeal. He argued that Ewers was per se ineffective
because, in 1995, Ewers’ license to practice law was revoked for his having used,
purchased, and distributed cocaine at his law office from 1985 through 1989.
Whiterabbit argued that if Ewers was unfit to practice law in 1995, he was equally
unfit at the time of Whiterabbit’s trial in 1992. Whiterabbit argued that, under
United States v. Cronic, 466 U.S. 648 (1984), he was not required to show actual
prejudice to establish that he was denied the effective assistance of counsel at trial.

¶5 The circuit court held two evidentiary hearings on Whiterabbit’s
motion. Whiterabbit and his prior postconviction counsel testified at the hearings.
The court found that Whiterabbit’s claim of ineffective assistance of counsel was
procedurally barred under Escalona-Naranjo because Whiterabbit had not
established a sufficient reason for failing to raise it previously. Whiterabbit
appeals.

¶6 A claim of ineffective assistance of counsel generally requires a
showing that counsel’s performance was deficient and that the deficient
performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668,
687 (1984). “Absent some effect of challenged conduct on the reliability of the
trial process, the Sixth Amendment guarantee is generally not implicated.”
Cronic, 466 U.S. at 658. In some instances, however, prejudice from counsel’s
deficient conduct is presumed without a required showing of the effect of the
conduct on the trial. Id. at 658-59. For example, prejudice is presumed when
counsel entirely fails to subject the State’s case to adversarial testing or when the
facts dictate that even a competent lawyer could not have provided effective
assistance. Id. at 659-60. We independently review whether undisputed facts

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establish ineffective assistance of counsel. See State v. Manuel, 2005 WI 75, ¶26,
281 Wis. 2d 554, 697 N.W.2d 811.

¶7 Whiterabbit argues that Ewers was per se ineffective under Cronic
because the facts supporting Ewers’ eventual disbarment had already occurred at
the time of Whiterabbit’s trial. He contends that the finding that Ewers was unfit
to practice law in 1995 based on his conduct in the 1980s established that Ewers
was unfit to practice law at the time of Whiterabbit’s trial in 1992. In support,
Whiterabbit cites Solina v. United States, 709 F.2d 160 (2d Cir. 1983), which
found per se ineffective assistance of counsel when the person who represented the
defendant at trial had never been admitted to practice law in any state.
Whiterabbit points out that the Solina court reasoned that a person falsely
purporting to be a licensed lawyer “cannot be wholly free from fear of what might
happen if a vigorous defense should lead the prosecutor or the trial judge to
inquire into his background and discover his lack of credentials. Yet a criminal
defendant is entitled to be represented by someone free from such constraints.”
Id. at 164. He also points out that the Solina court explained that its finding of per
se ineffective assistance was limited to “situations where, unbeknown to the
defendant, his representative was not authorized to practice law in any state, and
the lack of such authorization stemmed from failure to seek it or from its denial for
a reason going to legal ability, such as … want of moral character.” Id. at 167.

¶8 Whiterabbit also cites United States v. Novak, 903 F.2d 883 (2d Cir.
1990), which found per se ineffective assistance when defense counsel had
obtained admission to the bar by fraud and was disbarred after the defendant’s
trial. Whiterabbit points out that the Novak court reasoned that Novak’s defense
counsel would not have been admitted to the bar absent his fraud. Id. at 890.
Whiterabbit also points to the Novak court’s reasoning that, as in Solina, there

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was a danger that defense counsel would have been concerned that “a vigorous
legal defense that irritated the prosecutor” would trigger an investigation into his
licensure. Id.

¶9 Whiterabbit also cites Commonwealth v. Allen, 48 A.3d 1283, 1287
(Pa. Super. Ct. 2012) (quoted source omitted), for the proposition that “[c]ourts
have consistently distinguished between technical licensing defects and serious
violations of bar regulations reflecting an incompetence to practice law.” He
points to the Allen court’s statement that “[w]here the attorney’s license has been
suspended or he/she has been disbarred for substantive violations, constitutional
rights are violated and harm is presumed.” Id. (quoted source omitted).

¶10 Whiterabbit contends that, as in Solina and Novak, Ewers was not
free from the fear that a vigorous defense would lead the prosecutor or trial judge
to inquire into his background. Whiterabbit points out that, at the time of
Whiterabbit’s trial in 1992, Ewers knew that he had committed felonies
throughout the 1980s that were not yet discovered by the authorities. Whiterabbit
also argues that, had Ewers’ conduct been discovered prior to Whiterabbit’s trial,
Ewers would have been disbarred at that time. Whiterabbit argues that the
disbarment would not have been for a technical defect, but for a lack of moral
character. Whiterabbit contends that even an experienced advocate could not have

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been expected to provide Whiterabbit with effective assistance under these
circumstances.2

¶11 In response, the State argues that Whiterabbit has failed to cite any
case holding that counsel is per se ineffective under the facts of this case. The
State contends that, instead, courts have refused to find per se prejudice in similar
circumstances. In support, it cites United States v. Williams, 934 F.2d 847, 851-
52 (7th Cir. 1991), which held that prejudice was not presumed when defense
counsel’s license was suspended after the defendant’s trial for professional
misconduct that had occurred prior to trial. The State points out that the Williams
court refused to find per se prejudice because defense counsel had a valid law
license at the time of trial. Id. at 852. The State also cites Bellamy v. Cogdell,
974 F.2d 302, 303-07 (2d Cir. 1992), which held that defense counsel was not per
se ineffective when counsel was subject to disciplinary proceedings stemming
from counsel’s ill health prior to and during the defendant’s trial, and counsel’s
license was suspended after the trial. The State points out that the Bellamy court
distinguished Novak and Solina on grounds that, in Bellamy, counsel had validly
obtained a license to practice law and then committed misconduct that led to the
eventual loss of his law license after the defendant’s trial. Id. at 307. The State
contends that the same is true here: Ewers validly obtained a law license, but lost
his license after Whiterabbit’s trial based on prior misconduct. The State also

2
In his reply brief, Whiterabbit asserts that the per se ineffective assistance of counsel
claim was not fully developed in the circuit court because the circuit court applied the procedural
bar rather than reaching the merits of the claim. He argues that, if this court does not rely on the
procedural bar, we should remand for further proceedings on the ineffective assistance of counsel
claim or order additional briefing on that issue. We are not persuaded that remand or further
briefing is necessary for us to decide the merits of Whiterabbit’s per se ineffective assistance of
counsel claim.

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No. 2018AP2343

argues that nothing in Allen or Cronic supports Whiterabbit’s claim of per se
prejudice under the facts of this case.

¶12 We conclude that Whiterabbit has not established that his trial
counsel was per se ineffective. Ewers’ criminal conduct in the 1980s, which had
apparently concluded and was undetected at the time of his representation of
Whiterabbit in 1992, does not establish that Ewers would not have been able to
provide a vigorous defense out of fear of an investigation into his licensure.
Unlike the purported counsel in Solina and Novak, Ewers validly obtained a law
license and still had a valid law license at the time of Whiterabbit’s trial. Here, as
in Williams and Bellamy, the fact that Ewers engaged in misconduct prior to his
representation of Whiterabbit, which caused Ewers to lose his license after trial,
does not establish that counsel was not functioning as the counsel guaranteed by
the Sixth Amendment at Whiterabbit’s trial. Because trial counsel was not per se
ineffective, and Whiterabbit made no allegation and developed no argument in his
postconviction motion that he was actually prejudiced by any deficient
performance by counsel at trial, his claim of ineffective assistance of counsel fails
on the merits. The circuit court therefore properly denied the postconviction
motion.

By the Court.—Order affirmed.

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

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