Jama I. Jama v. Jason C. Gonzalez

2021 WI App 3

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2019AP629

†Petition for Review filed

Complete Title of Case:

JAMA I. JAMA,

PLAINTIFF-APPELLANT,

V.

JASON C. GONZALEZ AND WISCONSIN LAWYERS
MUTUAL INSURANCE COMPANY,

DEFENDANTS-RESPONDENTS.†

Opinion Filed: December 10, 2020
Submitted on Briefs: September 6, 2019

JUDGES: Blanchard, Kloppenburg, and Nashold, JJ.

Appellant
ATTORNEYS: On behalf of the plaintiff-appellant, the cause was submitted on the
briefs of David J. Lang and Kevin G. Raasch of Judge Lang & Katers,
LLC, Wauwatosa.

Respondent
ATTORNEYS: On behalf of the defendants-respondents, the cause was submitted on
the brief of Peyton B. Engel, of Hurley Burish S.C., Madison.
2021 WI App 3

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 10, 2020
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. 2019AP629 Cir. Ct. No. 2018CV1478

STATE OF WISCONSIN IN COURT OF APPEALS

JAMA I. JAMA,

PLAINTIFF-APPELLANT,

V.

JASON C. GONZALEZ AND WISCONSIN LAWYERS MUTUAL INSURANCE
COMPANY,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Dane County:
VALERIE BAILEY-RIHN, Judge. Reversed and cause remanded.

Before Blanchard, Kloppenburg and Nashold, JJ.

¶1 KLOPPENBURG, J. This appeal presents the issue of whether a
former criminal defendant may, as a plaintiff, sue his or her former criminal
defense attorney for legal malpractice when that plaintiff alleges that he or she can
show actual innocence as to some, but not all, of the criminal charges in the

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underlying criminal case, and the civil complaint alleges that the former defense
attorney provided negligent representation only as to the charges as to which the
criminal malpractice plaintiff alleges that he or she can show actual innocence.
This issue involves what we refer to as criminal malpractice plaintiffs’ claims of
“split innocence,” an issue that, as we will explain, has not yet been specifically
addressed by controlling case law.1

¶2 On appeal, Jama argues that Wisconsin case law requires that he be
able to prove his innocence only for the specific criminal charges as to which he
alleges his former criminal attorney performed negligently. Based on our review
of that case law, we agree and, therefore, we reverse and remand for further
proceedings.

BACKGROUND

¶3 Jama I. Jama, the criminal malpractice plaintiff in this case, filed this
legal malpractice action.2 We first summarize the allegations in his civil
complaint and then the proceedings that followed his filing of that complaint.

1
We use the phrase “criminal malpractice plaintiff” to refer to Jama and any other
person who formerly faced criminal charges and now pursues civil remedies against his or her
criminal defense counsel. See Humphries v. Detch, 712 S.E.2d 795, 800 n.5 (W. Va. 2011)
(citing cases explaining that the term “criminal malpractice” refers to “legal malpractice in the
course of defending a client accused of a crime”) (quoted sources omitted); Barker v. Capotosto,
875 N.W.2d 157, 161 n.2 (Iowa 2016) (“The term ‘criminal malpractice’ has been used to
describe a legal malpractice action brought by a former criminal defendant against his or her
former criminal defense attorney.”).
2
The Honorable Ellen K. Berz presided over the criminal proceedings and the Honorable
Valerie Bailey-Rihn presided over the civil action.

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¶4 After Jama was criminally charged with sexual assault, burglary, and
theft, he hired attorney Jason C. Gonzalez as his defense counsel. Jama told
Gonzalez that he had committed the theft as charged in the criminal complaint, but
that he had not committed the other crimes charged, including the two sexual
assault charges. Jama asserted his innocence as to the sexual assault charges at
that time, and has continued to do so since then.

¶5 The civil complaint further alleges that, during the criminal jury
trial, Gonzalez made numerous errors, including not meeting with Jama until the
third day of trial after both sides rested, and not asking Jama details about the case
until after the trial was completed, when sentencing was impending.

¶6 The jury found Jama guilty of four felonies (second-degree sexual
assault, third-degree sexual assault, and two charges of burglary) and one
misdemeanor (theft).3

¶7 While serving time related to his sexual assault convictions, Jama,
through new counsel, filed a postconviction motion for a new trial on the basis of
ineffective assistance of counsel by Gonzalez in connection with the trial. After a
Machner hearing,4 the circuit court vacated all convictions based on Gonzalez’s

3
More specifically, the jury found Jama guilty of sexual assault of an intoxicated victim,
sexual assault without consent, burglary with intent to commit a felony, burglary with intent to
steal, and misdemeanor theft. The circuit court subsequently vacated the two burglary
convictions for lack of evidence, and on appeal in the criminal case this court affirmed. See State
v. Jama, No. 2014AP2432, unpublished slip op. ¶¶5, 10, 30-35 (WI App Feb. 25, 2016). In this
present civil case, the circuit court’s decision and the parties’ appellate briefing address Jama’s
malpractice claims as pertaining only to the two sexual assault convictions. Therefore, we do not
refer to the burglary charges or convictions again; they are not counts of conviction and Jama
does not base this civil action on them.
4
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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ineffective assistance and ordered a new trial. This was based on findings by the
court that:

[Jama] had no one to advocate for his version of
events as [Gonzalez] intentionally did not speak with him,
intentionally did not investigate the facts in [Jama’s]
possession and intentionally did not incorporate [Jama’s]
version into the defense theory … [Gonzalez] chose to
make up “facts” which had no nexus to the facts known by
[Jama], which had little to no support in the evidence, and
which were internally conflicting.

¶8 The State subsequently moved to dismiss all of the original charges
against Jama except the misdemeanor theft charge, and issued a new charge of
misdemeanor resisting or obstructing an officer. Jama, represented by his same
postconviction counsel, pleaded guilty to both theft and resisting or obstructing.
For these two convictions, the circuit court sentenced Jama to nine months in jail,
“deeming time served.”5

¶9 The complaint further alleges that, as a result of Gonzalez’s
negligent representation at trial, Jama suffered damages including the loss of his
“civil liberties and freedoms.” Specifically, before the circuit court granted the
postconviction motions and Jama entered the misdemeanor pleas, he served over
two and one-half years in prison, and was ordered to complete an Alcohol and
Other Drug Abuse assessment, maintain absolute sobriety, not enter an

5
The parties neither referred to the newly added obstruction charge in their arguments
before the circuit court nor refer to it now in their arguments on appeal, and no details as to the
basis for the charge and Jama’s plea to it exist in the appellate record or in the Circuit Court
Automated Programs site. We note that the obstruction charge was added after Gonzalez had
concluded his representation of Jama, and that Jama accordingly does not allege injury related to
that charge. Following the parties, we do not refer to the obstruction charge or conviction again
in this opinion or consider it in our analysis, and for ease of reference we speak in terms of
Jama’s plea as if it were to the misdemeanor theft only.

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establishment whose purpose is the sale of alcohol, report for the sex offender
registry list for life, and not appear on State Street in Madison for six years.

¶10 We now move from the allegations in Jama’s complaint to
summarize what took place after Jama filed this action against Gonzalez.
Gonzalez moved to dismiss the complaint on the basis that Jama’s allegations,
even if true, do not entitle Jama to relief. The gravamen of Gonzalez’s argument
was that, because Jama pleaded guilty to the theft charge after his convictions
were vacated and a new trial was ordered, Jama could not prove that he was
innocent of all charges, as required to pursue this civil action under the “actual
innocence” rule stated in then controlling case law, specifically Hicks v. Nunnery,
2002 WI App 87, 253 Wis. 2d 721, 643 N.W.2d 809, and Tallmadge v. Boyle,
2007 WI App 47, 300 Wis. 2d 510, 730 N.W.2d 173.

¶11 In response, Jama asserted that this malpractice action addresses
only Gonzalez’s negligent representation of Jama on the sexual assault charges,
that Jama suffered damages from the sexual assault convictions, and that Jama is
able to prove, and has always maintained, his innocence of the sexual assault
charges. Jama’s position was that this action alleges negligence in connection
with the sexual assault convictions only and does not allege negligence in
connection with the misdemeanor theft charge to which he pleaded guilty.

¶12 The circuit court granted Gonzalez’s motion to dismiss, stating that,
under Hicks and Tallmadge, Jama has to provide “proof of innocence of all
charges” that were charged in the underlying criminal case. The court ruled,
“because Mr. Jama pled guilty to the theft charge, even though he … has always
claimed that he was innocent of the sexual assault charges … [Gonzalez has]
prevailed on [his] motion to dismiss.”

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¶13 Jama appealed. After the parties filed their appellate briefs, the
Wisconsin Supreme Court accepted review in Skindzelewski v. Smith, 2020 WI
57, 392 Wis. 2d 117, 944 N.W.2d 575, in which the criminal malpractice plaintiff
sought an exception to the “actual innocence” rule adopted by this court in Hicks
to allow him to pursue his legal malpractice claim premised on former defense
counsel’s failure to raise a valid statute of limitations defense. Skindzelewski, 392
Wis. 2d 117, ¶2. After the supreme court issued its decision in Skindzelewski, in
which it for the first time addressed and relied on the actual innocence rule
adopted in Hicks to decline to recognize the exception to that rule as requested by
Skindzelewski, id. at ¶¶2, 21-23, this court certified the split innocence issue
raised in this case to the supreme court for its review and determination. The
supreme court has now denied the certification request. Accordingly, we now
proceed to address the split innocence issue raised in this case.6

DISCUSSION

I. Standard of Review and Legal Principles

¶14 “A motion to dismiss for failure to state a claim tests the legal
sufficiency of the complaint.” Data Key Partners v. Permira Advisers LLC, 2014
WI 86, ¶19, 356 Wis. 2d 665, 849 N.W.2d 693 (quoted source omitted). “Upon a
motion to dismiss, we accept as true all facts well-pleaded in the complaint and the

6
As we explain in this opinion, the questions raised by the parties based on the Court of
Appeals’ decisions in Hicks v. Nunnery, 2002 WI App 87, 253 Wis. 2d 721, 643 N.W.2d 809,
and Tallmadge v. Boyle, 2007 WI App 47, 300 Wis. 2d 510, 730 N.W.2d 173, were not
addressed by the supreme court in Skindzelewski v. Smith, 2020 WI 57, 392 Wis. 2d 117, 944
N.W.2d 575. For this reason, we did not order the parties to submit additional briefing based on
the Skindzelewski court’s affirmation of the Hicks and Tallmadge actual innocence rule.

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reasonable inferences therefrom.” Id. (citing Kaloti Enters., Inc. v. Kellogg Sales
Co., 2005 WI 111, ¶11, 283 Wis. 2d 555, 699 N.W.2d 205). Whether a complaint
adequately pleads a cause of action is a question of law we review de novo.
Hermann v. Town of Delavan, 215 Wis. 2d 370, 378, 572 N.W.2d 855 (1998).

¶15 In Wisconsin, all plaintiffs alleging legal malpractice must prove
four elements in order to prevail: “(1) an attorney-client relationship existed;
(2) the attorney’s actions were negligent; (3) the attorney’s negligent actions
caused the client’s injury; and (4) the client suffered an actual injury.”
Skindzelewski, 392 Wis. 2d 117, ¶9. Citing Hicks, the court in Skindzelewski
stated that, in a criminal malpractice case, the plaintiff “must additionally prove
that he [or she] was actually innocent of the criminal charge as a component of the
causation element.” Id. See also Tallmadge, 300 Wis. 2d 510, ¶¶21-22 (applying
the actual innocence rule to criminal malpractice claims against postconviction
counsel).

II. Analysis

¶16 The parties here do not dispute that, in Wisconsin, the actual
innocence rule applies to all criminal malpractice plaintiffs. However, as stated
above, the parties dispute how to resolve the specific split innocence issue under
the reasoning and language of controlling Wisconsin case law. Gonzalez asserts
that the case law supports his argument that Jama, as the criminal malpractice
plaintiff in this case, has to prove innocence as to all charges of which Jama was
convicted. Jama asserts that the case law supports his argument that it is sufficient
to allege that he can prove innocence only as to those charges for which he alleges
that his former defense counsel provided negligent representation, even if he

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cannot prove innocence on one or more other charges. As we explain, we agree
with Jama.

¶17 We first discuss pertinent details of the Wisconsin Court of Appeals’
Hicks and Tallmadge decisions and the Wisconsin Supreme Court’s
Skindzelewski decision, explaining how public policy considerations identified in
each of those opinions support adoption of the actual innocence rule and how
those considerations apply to support Jama’s position in the split innocence
situation presented in this case. We then explain why we reject Gonzalez’s
arguments to the contrary.

A. Wisconsin Precedent: Hicks, Tallmadge, and Skindzelewski.

1. Hicks v. Nunnery, 2002 WI App 87, 253 Wis. 2d 721, 643 N.W.2d 809.

¶18 We begin with the Court of Appeals’ decision in Hicks, which
adopted the actual innocence rule that was relied on by the supreme court in
Skindzelewski.

¶19 Hicks was convicted and imprisoned on charges of robbery,
burglary, and sexual assault. Hicks, 253 Wis. 2d 721, ¶3. Hicks consistently
maintained his innocence as to all three charges. Id., ¶37. On appeal, the court
reversed all three of Hicks’ convictions because Hicks had been denied effective
assistance of trial counsel. Id., ¶3. The Wisconsin Supreme Court affirmed as to
all three charges, but on the ground that the real controversy had not been fully
tried as to any charge. Id.

¶20 The State subsequently “dropped all charges against Hicks.” Id.,
¶12. Hicks then filed a legal malpractice suit against his former trial counsel,
Attorney Nunnery. Id., ¶13. The civil jury found that Hicks would have been

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found not guilty on all charges at his criminal trial had it not been for Nunnery’s
negligent representation. Id., ¶¶13, 34. Nunnery appealed, arguing that he was
entitled to judgment in his favor because Hicks failed to prove his innocence on all
charges. Id., ¶¶1, 32.

¶21 Following the reasoning and considerations of “public policy”
adopted by the California Supreme Court in Wiley v. County of San Diego, 966
P.2d 983 (Cal. 1998), the court in Hicks concluded, “[A]s a matter of public
policy, persons who actually commit the criminal offenses for which they are
convicted should not be permitted to recover damages for legal malpractice from
their former defense attorneys.” Id., ¶¶39-46, 48. Accordingly, the Hicks court
held that, in addition to proving the four elements of a standard legal malpractice
claim listed above, public policy considerations require that a criminal malpractice
plaintiff may not prevail without also proving to the civil jury that he or she “is
innocent of the charges of which he [or she] was convicted.” Id., ¶46. Because
the actual innocence issue had not been resolved in the circuit court, the court of
appeals remanded the case for a new trial “limited to the issue of whether Hicks
committed the offenses of which he was convicted.” Id., ¶¶46, 56.

¶22 The Hicks court identified five specific public policy considerations
relied on by the California court in Wiley that supported its adoption of the actual
innocence rule for criminal malpractice plaintiffs. We now quote them at length:

1. Permitting a convicted criminal to pursue a legal
malpractice claim without requiring proof of innocence
would ... shock the public conscience, engender disrespect
for courts and generally discredit the administration of
justice.

2. Allowing civil recoveries to guilty plaintiffs
impermissibly shifts responsibility for the crime away from
the convict…. Regardless of the attorney’s negligence, a
guilty defendant’s conviction and sentence are the direct

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consequence of his [or her] own perfidy.… [W]hile a
conviction predicated on incompetence may be erroneous,
it is not unjust.

3. Tort law provides damages only for harms to the
plaintiff’s legally protected interests, and the liberty of a
guilty criminal is not one of them. The guilty criminal may
be able to obtain an acquittal if he [or she] is skillfully
represented, but he [or she] has no right to that result…

4. Even in cases where the causal link between an
attorney’s negligence and a client’s erroneous
imprisonment is most obvious (such as where the attorney
fails to bring a clearly meritorious motion to suppress
evidence that establishes guilt, which the state could not
prove without it), civil recovery by a guilty plaintiff is not
warranted because of the nature and function of the
constitutional substructure of our criminal justice system.
That is, [certain] features of the criminal justice system …
and other constitutional protections are to safeguard against
conviction of the wrongly accused and to vindicate
fundamental values. They are not intended to confer any
direct benefit outside the context of the criminal justice
system. Thus, defense counsel’s negligent failure to utilize
them to secure an acquittal or dismissal for a guilty
defendant does not give rise to civil liability.

5. Unlike victims of legal malpractice in a civil
context, who most often have no redress except a recovery
from the negligent attorney, wrongfully convicted criminal
defendants have the opportunity to rectify the wrong by
asserting their Sixth Amendment right to effective
assistance of counsel. Not only does the Constitution
guarantee this right, any lapse can be rectified through an
array of postconviction remedies, including appeal and
habeas corpus. Such relief is afforded even to those clearly
guilty as long as they demonstrate incompetence and
resulting prejudice…

Hicks, 253 Wis. 2d 721, ¶¶40-44 (emphasis added) (internal quotation marks and
citations omitted).

¶23 Because the facts in Hicks did not raise the issue, this court did not
in that case address whether the requirement that a criminal malpractice plaintiff
prove that he or she “is innocent of the charges of which he [or she] was

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convicted” applies to all charges in the criminal case or only to those that are the
subject of the malpractice action. Id., ¶46. To repeat, Hicks alleged that trial
counsel was negligent as to all of the charges on which trial counsel represented
Hicks, and that Hicks had consistently maintained his innocence as to all of those
charges. Id., ¶¶3, 37. Here, however, as stated, Jama alleges negligence and
maintains his innocence only in connection with the sexual assault convictions and
does not allege negligence in connection with the misdemeanor theft charge to
which he eventually pleaded guilty.

¶24 We discern no suggestion in Hicks that the values embodied in the
adopted policy considerations would be undermined if, as here, the criminal
malpractice plaintiff were able to recover based strictly on negligence resulting in
conviction for conduct for which the plaintiff claims actual innocence—here,
sexual assault. More specifically, none of the five policy considerations, which all
concern “guilty” defendants, appear on their face to apply here, where Jama
alleges that he can prove he is not guilty. The Hicks court stressed that it was
adopting the actual innocence rule because “as a matter of public policy, persons
who actually commit the criminal offenses for which they are convicted should not
be permitted to recover damages for legal malpractice from their former defense
attorneys.” Id., ¶48. That public policy is not served when a person did not
actually commit the criminal offenses that are the subject of the malpractice
action.

¶25 As for the only criminal conduct of which Jama stands convicted, he
would neither profit from that conduct nor escape punishment for it. However,
Jama has not been afforded the opportunity to seek full relief for the damages
caused by his attorney’s alleged negligence as to the vacated convictions for
charges of which Jama claims he is innocent.

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¶26 Thus, we conclude that allowing Jama to proceed with his claims in
this split innocence situation is consistent with the actual innocence rule adopted
in Hicks and with the policy considerations relied on by the Hicks court in support
of that rule.7

2. Tallmadge v. Boyle, 2007 WI App 47, 300 Wis. 2d 510, 730 N.W.2d 173.

¶27 We now turn to Tallmadge, in which the Court of Appeals relied on
the actual innocence rule adopted in Hicks. Tallmadge, 300 Wis. 2d 510, ¶12.

¶28 Tallmadge was sentenced to 265 years in prison after being found
guilty of fifteen counts of sexual assault. Id., ¶2. He subsequently retained an
attorney, Attorney Boyle, to consult with his trial attorney on a direct appeal. Id.,
¶¶3-5. After the appeal was unsuccessful, Tallmadge directed Attorney Boyle to
seek habeas corpus relief for Tallmadge, but Tallmadge was unsatisfied with
Boyle’s drafted writ and later fired him. Id., ¶¶6, 16-17. Tallmadge then retained
a new appellate attorney, Attorney Sutton, who filed a federal writ of habeas
corpus raising three issues as to all of the fifteen counts, and two issues
specifically as to two of the counts. Id., ¶7. Thus, if Sutton’s efforts had been in
any way successful, there were potential pathways to complete reversal but also
potential pathways to only partial reversal. However, the writ filed by Attorney

7
We note that in his concurrence in Tallmadge, Judge Fine summarizes the Hicks rule
as follows: “[A] convicted defendant cannot recover against his or her lawyer for legal
malpractice that allegedly caused the defendant’s conviction unless the defendant can show by
the civil burden of proof that he or she was actually innocent of the crime and, also, that the
lawyer’s malpractice was a cause of the conviction.” Tallmadge, 300 Wis. 2d 510, ¶32, citing the
reasoning of Hicks, 253 Wis. 2d 721, ¶¶34-50. Judge Fine’s use of the singular “conviction” and
“crime” though not binding, supports our reading of Hicks, requiring only proof of innocence for
each specific criminal charge as to which the criminal malpractice plaintiff alleges his or her
former defense attorney performed negligently.

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Sutton was dismissed because it was not timely filed. Id., ¶8. Tallmadge
subsequently brought a legal malpractice suit against Boyle for failing to file a
state or federal writ of habeas corpus. Id., ¶¶10, 16. The circuit court granted
Boyle’s motion for summary judgment dismissing the complaint. Id., ¶12.
Applying the Hicks actual innocence rule, the court stated, “There is no evidence
in this record, other than Mr. Tallmadge’s assertion, that he is innocent.” Id.

¶29 The court of appeals affirmed, stating that the same public policy
considerations supporting the actual innocence rule adopted in Hicks “apply
equally to cases involving criminal defense attorneys hired to represent criminal
defendants after conviction.” Id., ¶¶21-22. The court also stated that these public
policy considerations require that the criminal malpractice plaintiff must “prove
that ‘but for’ that defense counsel’s actions, the convicted criminal would be free.”
Id., ¶22. The court also broadly stated that, before Tallmadge could be entitled to
“a get out of jail free card,” he would have to “prov[e] to a jury that [he] is
innocent of all fifteen counts for which he was convicted.” Id., ¶19. The court
explained that, because none of Tallmadge’s appellate attorneys had been able to
develop any meritorious claims in Tallmadge’s criminal case as to any of the
fifteen convictions, let alone all of them, any assertion that Boyle, specifically,
would have secured Tallmadge’s freedom was “purely speculative.” Id., ¶¶18-19.
Thus, it appears that the Tallmadge court approached the case as if all fifteen
convictions were both the subject of the malpractice action as well as the subject
of Tallmadge’s unsupported assertion of innocence, despite a lack of clarity on
this and other issues as summarized in the case.

¶30 The Tallmadge court reiterated the public policy considerations
identified in Hicks, highlighting as the primary policy consideration the view that
“[p]ermitting a convicted criminal to recover in a legal malpractice action against

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former defense counsel would result in the criminal being indirectly rewarded for
the crimes.” Id., ¶22 (citing Hicks, 253 Wis. 2d 721, ¶38).

¶31 As with Hicks, we discern nothing in the Tallmadge court’s
discussion of this concern or the other policy considerations to suggest that a
criminal malpractice plaintiff cannot recover for negligent representation as to
crimes that the plaintiff alleges the plaintiff can show he or she did not commit.

¶32 Thus, we conclude that nothing in Tallmadge disturbs our
determination that allowing Jama to proceed with his claims in this split innocence
situation is consistent with the actual innocence rule adopted in Hicks and with the
policy considerations relied on by the Hicks court in support of that rule.

3. Skindzelewski v. Smith, 2020 WI 57, 392 Wis. 2d 117, 944 N.W.2d 575.

¶33 Finally, the Wisconsin Supreme Court in Skindzelewski affirmed the
Hicks actual innocence rule, stating that the rule “requires a criminal [malpractice
plaintiff] to establish [that he or she] did not commit the crime of which he [or
she] was convicted.” Skindzelewski, 392 Wis. 2d 117, ¶2. Skindzelewski, the
criminal malpractice plaintiff, conceded his guilt as to his underlying offense of
“theft by contractor,” but sought an exception to the actual innocence rule because
his attorney had negligently failed to raise a statute of limitations defense that
would have precluded his conviction. Id., ¶¶1-3, 17. The court declined to
establish such an exception to the actual innocence rule, stating that the exception
that Skindzelewski sought would be contrary to public policy considerations and
would “reward criminality.” Id., ¶¶2, 22. The court explained that “[t]he law bars
such legal malpractice claims because even if an attorney’s negligence harms a
defendant by adversely affecting the outcome of the case, attorney error does not
negate a guilty defendant’s culpability.” Id., ¶17.

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¶34 The court’s opinion in Skindzelewski confirms the actual innocence
rule adopted in Hicks and also contains language that supports our conclusion that,
on the facts of Jama’s split innocence situation, proof of Jama’s actual innocence
of the charges as to which he alleges legal malpractice falls within the actual
innocence rule. We reach this conclusion for three reasons.

¶35 First, the supreme court states that Skindzelewski’s claim “rests on a
legal error that would have precluded his conviction notwithstanding his guilt.”
Id., ¶17. In contrast, Jama alleges that his injury is “entirely unrelated to [his]
criminal behavior” and rests on legal errors that led to a conviction as to which he
asserts his innocence. Id., ¶18.

¶36 Second, the analysis in Skindzelewski echoes the focus in Hicks on
supporting the actual innocence rule with considerations of public policy.
Throughout, the court uses language such as “actually guilty,” “culpable
behavior,” and “the guilty” in support of its determination to avoid “rewarding
criminality.” Id., ¶¶17, 23. The court also emphasizes that “the defendant …
bears ultimate responsibility for his [or her] criminal conduct.” Id., ¶17. In
contrast, Jama contends that he does not seek reward for his criminality, but seeks
damages for injury caused by Gonzalez’s legal representation regarding offenses
that Jama has always asserted he did not commit. The Skindzelewski court
reasons:

Despite [Skindzelewski’s] guilt, the law afforded
Skindzelewski a remedy for the erroneous conviction—
namely, his liberty. The law does not, however, give him
an additional monetary remedy against his negligent
lawyer. Doing so would be tantamount to rewarding this
guilty defendant for his crime, which ‘would … shock the
public conscience, engender disrespect for courts and
generally discredit the administration of justice.’

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Id., ¶22, (quoting Hicks, 253 Wis. 2d 721, ¶40). Here, however, Jama seeks
damages for his imprisonment on sexual assault charges that he alleges he can
prove he was innocent of, so a damages award would not “reward a guilty
defendant for his crime.” Id.

¶37 Third, Skindzelewski states that attorney error does not “sever[] the
causal link between a criminal defendant’s culpable behavior and the time spent
incarcerated, when the criminal defendant is actually guilty.” Id., ¶17 (emphasis
added) “In contrast, if a defendant … serves the maximum time authorized by
statute for his [or her] criminal conduct but then serves additional time as a result
of his [or her] attorney’s error, the additional time of incarceration is causally
unconnected to the antecedent criminality.” Id., ¶18. Here, if Jama serves the
maximum time authorized by statute for his admitted misdemeanor theft conduct,
but then serves additional time as a result of sexual assault convictions that
resulted from his attorney’s negligence, and as to which he alleges he can prove
his innocence, the additional time of his incarceration is unconnected to any
criminal behavior on Jama’s part.

¶38 In sum, we conclude that, under the Skindzelewski/Hicks/Tallmadge
actual innocence rule, the circuit court erroneously dismissed Jama’s complaint
because Jama claims actual innocence as to the vacated sexual assault convictions
that form the basis of his malpractice claims in that complaint.

B. Gonzalez’s Arguments Do Not Persuade.

¶39 We now address and reject Gonzalez’s arguments to the contrary.

¶40 First, Gonzalez argues that “Hicks does not establish that a
malpractice plaintiff who has entered a guilty plea is entitled to trial.” This

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argument misses its target, because Jama does not allege negligent representation
or seek relief as to the theft charge to which he pleaded guilty. Rather, Jama
alleges that Gonzalez provided negligent representation, causing significant injury,
only as to the two charges that led to Jama’s subsequently-vacated sexual assault
convictions.

¶41 Second, Gonzalez argues that, under Tallmadge, a criminal
malpractice plaintiff must prove innocence as to all charges on which the plaintiff
was convicted, and that Jama cannot do so because he pleaded guilty to theft, one
of the underlying charges on which Gonzalez represented him. This argument
also misses its target, because, as noted above, Tallmadge does not address a split
innocence situation. Rather, in that case, the court observed that Tallmadge had
not shown that his appellate counsel could successfully challenge any of his 15
convictions or that he could prove he was innocent of any of those charges. See
Tallmadge, 300 Wis. 2d 510, ¶¶18-19.

¶42 To the extent that Gonzalez may be basing his argument on the
Tallmadge court’s use of the “would be free” language noted above, such a basis
is not clearly supported by the Tallmadge decision itself. As explained above, the
court focused on the policy consideration that a convicted criminal should not be
rewarded for his or her criminal conduct, citing Hicks. Tallmadge, 300 Wis. 2d
510, ¶22. That policy consideration is not undermined in a split innocence
situation when, as here, the claim is based on actual innocence of specific charges.
Moreover, the court’s “would be free” statement and the accompanying discussion
are not supported by citation to authority. Tallmadge, 300 Wis. 2d 510, ¶¶18-19,
20-22. From the surrounding discussion, it appears that the court may have been
conflating the “would be free” concept with the rule adopted by some courts in
other states that a criminal malpractice plaintiff must have obtained postconviction

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No. 2019AP629

relief vacating the convictions that are the subject of the malpractice suit, in
addition to or in lieu of proving actual innocence in some other manner. See
Barker v. Capotosto, 875 N.W.2d 157, 158, 166 (Iowa 2016) (concluding that
public policy considerations support requiring that a criminal malpractice plaintiff
obtain postconviction relief). Here, Jama’s sexual assault convictions were
vacated and the State did not reissue those charges, so any such exoneration
requirement has been met.

¶43 In sum, Gonzalez’s argument that Jama is precluded from proceeding
with his legal malpractice claim because he pleaded guilty to a third charge as to
which he does not allege legal malpractice fails under the actual innocence rule
adopted in Hicks and applied in Tallmadge and Skindzelewski.

CONCLUSION

¶44 For the reasons stated, we conclude that under controlling case law,
Jama’s allegations that his former trial counsel negligently represented him as to
two sexual assault charges, causing him injury, and that he has consistently
asserted and can prove his innocence of those charges, suffice to withstand
Gonzalez’s motion to dismiss. Accordingly, we reverse and remand for further
proceedings.

By the Court.—Order reversed and cause remanded.

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