State v. Serghei Kundilovski

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.
January 12, 2021
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. 2020AP322-CR Cir. Ct. No. 2017CF327

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

SERGHEI KUNDILOVSKI,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Dunn
County: JAMES M. PETERSON, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, 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. Serghei Kundilovski appeals a judgment convicting
him of three counts of homicide by intoxicated use of a vehicle while having a prior
No. 2020AP322-CR

intoxicant-related conviction or revocation, contrary to WIS. STAT. § 940.09(1)(a)
and (1c)(b) (2017-18). He also appeals an order denying his postconviction motion
to withdraw his guilty pleas.

¶2 Kundilovski argues his pleas were not knowing, intelligent, and
voluntary based on a combination of three factors: (1) his “substantial
comprehension issues” due to a traumatic brain injury (TBI); (2) his trial attorney’s
failure to use an interpreter when discussing the plea agreement with Kundilovski
outside of court; and (3) his trial attorney’s “misleading” advice that Kundilovski
was likely to receive aggregate sentences totaling only three to seven years, despite
the fact that the maximum sentences for the offenses to which Kundilovski pled
totaled 120 years. In the alternative, Kundilovski argues he is entitled to plea
withdrawal because his trial attorney was ineffective by failing to use an interpreter
when meeting with Kundilovski outside of court, by failing to “retain an expert to
establish … Kundilovski’s language limitations,” and by incorrectly advising
Kundilovski regarding the likely length of his sentences. We reject these arguments
and affirm.

BACKGROUND

¶3 In July 2017, Kundilovski drove his car in the wrong direction on
Interstate 94 in Dunn County. He collided nearly head-on with an oncoming
vehicle, killing all three of its occupants. Kundilovski spent approximately one
month in the hospital following the crash. His injuries included two brain
hemorrhages, which constituted a TBI.

¶4 As a result of the accident, the State charged Kundilovski with nine
counts, three related to each victim: three counts of first-degree reckless homicide;
three counts of operating a motor vehicle while revoked, causing the death of

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another; and three counts of homicide by intoxicated use of a vehicle while having
a prior intoxicant-related conviction or revocation. Kundilovski was born in
Moldova but has been in the United States since approximately 2010. He is fluent
in Russian but has limited English proficiency. An interpreter was therefore used
during all court proceedings at which Kundilovski was present. However,
Kundilovski’s trial attorney, Scott Schlough, did not use an interpreter when
meeting with Kundilovski outside of court.

¶5 Approximately four and one-half months after the accident,
Kundilovski entered guilty pleas to the three homicide by intoxicated use of a
vehicle counts pursuant to a plea agreement. In exchange for Kundilovski’s pleas,
the State agreed to recommend that the remaining six charges and a traffic case be
dismissed and read in for purposes of sentencing and restitution. The parties further
agreed that a presentence investigation report (PSI) would be prepared and that both
sides would be free to argue at sentencing.

¶6 As with all other court proceedings at which Kundilovski was present,
an interpreter was used during the plea hearing. At the beginning of the hearing,
Kundilovski confirmed that he understood the interpreter. The circuit court then
conducted a plea colloquy, during which it confirmed that Kundilovski understood
the elements of the crimes to which he was pleading guilty. The court also explained
that the maximum penalty for each of the three charges was a forty-year sentence or
a $100,000 fine, or both. Kundilovski responded that he understood the maximum
penalties. The court further explained that the sentences could be imposed
consecutively, and Kundilovski stated that he understood.

¶7 Kundilovski confirmed that he had enough time to speak to Schlough
about his pleas and ask any questions that he wanted to ask. He also confirmed that

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he had reviewed the plea questionnaire and waiver of rights form with Schlough and
had signed that form. The form lists the maximum penalty for the offenses as
“$100,000 or 40 years imprisonment or both x 3 = $300,000 or 120 years
imprisonment or both (maximum term of confinement of 75 total years).” The form
also states, “I understand that the judge is not bound by any plea agreement or
recommendations and may impose the maximum penalty.” By signing the form,
Kundilovski confirmed that he had read it, understood its contents, had reviewed it
with Schlough, and had answered its questions truthfully.

¶8 The circuit court inquired during the plea colloquy about
Kundilovski’s ability to understand English, and Kundilovski responded that his
understanding was “very limited.” He stated, however, that he had been employed
as a truck driver in the United States and was therefore able to follow road signs.
The court then acknowledged the interpreter’s presence and inquired whether there
was “anything so far that has been said that you do not understand.” Kundilovski
responded, “No, I understand everything.”

¶9 The circuit court later stated:

And do you understand that the Court is not bound by any
recommendations? The only bounds the Court has are the
maximum possible penalties that we spoke about. The Court
can’t go beyond that. But my understanding is that your
agreement is both parties would be free to argue what the
sentence may be. Do you understand that?

Kundilovski responded, “Yes.” The court then accepted Kundilovski’s pleas and
found him guilty.

¶10 At Kundilovski’s sentencing hearing, the State asked the circuit court
to impose consecutive sentences totaling seventy-five years’ initial confinement and
fifteen years’ extended supervision. Schlough did not make a specific sentence

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recommendation, although he argued the court should not impose the maximum
penalties. The court ultimately imposed consecutive sentences totaling seventy-five
years’ initial confinement and thirty years’ extended supervision.

¶11 Kundilovski subsequently filed a postconviction motion to withdraw
his guilty pleas. He argued his pleas were not knowing, intelligent, and voluntary
based on his language comprehension issues, Schlough’s failure to use an interpreter
during their out-of-court discussions about the plea agreement, and Schlough’s
advice that Kundilovski would likely receive aggregate sentences of three to seven
years if he pled guilty. Based on those factors, Kundilovski asserted he “understood
and believed that by pleading guilty, he was guaranteed a 3-7 year sentence.”
Kundilovski also argued Schlough was ineffective “by not using an interpreter to
ensure that … Kundilovski understood basic legal concepts and by failing to retain
an expert to establish … Kundilovski’s language limitations.”

¶12 In support of his motion, Kundilovski attached a report authored by
psychologist Brenda Leske regarding his “ability to understand language, both
auditory-receptive language and written information.” Leske had evaluated
Kundilovski in June and July 2019, over one and one-half years after he entered his
pleas.

¶13 The circuit court held a hearing on Kundilovski’s postconviction
motion. At the hearing, Leske explained that the main areas of language she
assessed during her evaluation of Kundilovski were comprehension, naming, and
recognition. She summarized her findings as follows:

Mr. Kundilovski is struggling substantially with … regard to
his language functioning. He has demonstrated substantial
difficulty processing meaningful language; even language
presented both in English and in Russian. The results
indicate that his underlying reasoning capacity appears to be

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intact but he—you know, [the interpreter] and I really tried
to do our best to do what we could to support the process for
him but he … did have … substantially weak vocabulary;
substantially weak long-term memory; substantially weak
comprehension.

His comprehension was like the first to the ninth percentile
for the impaired borderline-impaired range. He had
word-finding difficulties. His naming was at the fifth
percentile. His, you know, language comprehension,
processing, naming, and memory were all problematic. He
was, however, able to repeat back very well, you know, at
the sixty-fourth percentile. So it may look at times as though
he’s very well able to understand when in fact he’s not
because he—and he may himself think because he can repeat
the words back to you that he understands but there’s no
understanding needed simply to pair back someone’s words.
So that’s a concern.

¶14 Leske testified Kundilovski’s language comprehension skills were
“poor” in both English and Russian. She also testified that the brain hemorrhages
Kundilovski had experienced as a result of the accident constituted a TBI, which
could affect his memory and language comprehension. She opined that
Kundilovski’s TBI could have adversely affected his ability to understand his legal
proceedings. She further opined that because of his TBI, Kundilovski would “need
extra help to understand things” that a person without a TBI would not need.

¶15 Schlough testified at the postconviction hearing that he had discussed
the plea agreement with Kundilovski outside of court on at least three occasions.
No interpreter was used during those discussions, and Schlough testified he did not
consider asking for an interpreter. He explained that he and Kundilovski used a
speech-to-text translation program to communicate “a couple times,” and “that
seemed to work for the most part.” In fact, Schlough testified he used that program
to make a sentence-by-sentence translation of the plea questionnaire into Russian,
and Kundilovski “actually made corrections as we were going through saying, this
doesn’t seem to say the same thing.”

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¶16 Schlough also testified that when he had concerns about whether
Kundilovski understood a concept during their discussions of the plea agreement,
he would attempt to explain that concept “in smaller words; less complicated terms”
until it appeared that Kundilovski understood. He explained:

Often we would go back and forth in that discussion. Here’s
a statement. He would say, I don’t know. I would say some
clarification of it. And then he would say, is that like this
or—and we would keep working that way until I thought we
had an understanding for the most part.

¶17 For instance, Schlough testified that he initially had concerns about
whether Kundilovski understood the distinction between concurrent and
consecutive sentences. Schlough therefore “broke it down to mean that it would be
one sentence served and then you would start your next one … and he seemed to
understand that concept that it was one after another.” Schlough acknowledged,
however, that he had told Kundilovski’s postconviction attorney he was not “one
hundred percent sure whether … Kundilovski understood what consecutive
sentencing meant.”

¶18 Schlough also testified that he was initially concerned about
Kundilovski’s understanding of the concept of judicial sentencing discretion. He
testified that at first, Kundilovski appeared to believe that after the parties made
their sentencing recommendations, the circuit court would be required to adopt one
of those recommendations, rather than “craft[ing] whatever sentence the judge
deemed appropriate.” Schlough testified he discussed the concept of judicial
sentencing discretion with Kundilovski “a couple of times,” and he believed they
had “cleared … up” Kundilovski’s misunderstanding. He conceded, however, that
he could not “say for sure [whether Kundilovski understood] because I’m not …

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No. 2020AP322-CR

Kundilovski.” He further conceded that he never considered hiring an expert to
evaluate Kundilovski’s language comprehension.

¶19 Schlough also testified that he told Kundilovski he would likely
receive aggregate sentences totaling only three to seven years. Schlough explained
that estimate was based on a conversation he had with an individual who wrote
private PSIs and had previously prepared PSIs for the Department of Corrections
(DOC). Although Schlough told Kundilovski he believed the court would likely
impose aggregate sentences totaling three to seven years, he testified Kundilovski
never indicated that he believed the court could not impose sentences exceeding that
length.

¶20 Kundilovski also testified at the postconviction hearing. He stated he
did not tell Schlough that he wanted an interpreter during their out-of-court
discussions because he did not think an interpreter “could help [him] in any way.”
He testified that Schlough told him he would receive sentences totaling three, five,
or seven years if he took the plea agreement, and that was one reason he took the
deal. He asserted Schlough told him that without the plea agreement, “it would be
forty” years. Kundilovski conceded, however, that Schlough also informed him that
“the judge could pick whatever sentence he wanted to pick no matter what the plea
deal was.”

¶21 Kundilovski also conceded that the circuit court told him during the
plea hearing that it was not bound by any sentence recommendations and could
impose the maximum penalties. Kundilovski acknowledged telling the court that
he understood those concepts. Nevertheless, Kundilovski testified he still believed
the court could not impose sentences exceeding seven years “because the plea
agreement was that.” He also testified that he believed he had to answer “yes” to

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all of the court’s questions during the plea colloquy, but he did not elaborate as to
the basis for that belief. Finally, Kundilovski testified that he would not have
entered his pleas had he known the court could impose the maximum sentences, and
he would have instead gone to trial.

¶22 The State presented the testimony of two law enforcement officers at
the postconviction hearing. First, state trooper Kyle DeVries testified that he had
interviewed Kundilovski at the hospital several days after the accident using a
Russian interpreter. That interview was video recorded, and the recording was
played for the court during the postconviction hearing. DeVries testified that
Kundilovski was able to answer some of his questions during the interview in
English, without waiting for them to be translated into Russian.

¶23 Second, sergeant Douglas Ormson of the Dunn County Sheriff’s
Office testified that Kundilovski communicated with him and with other jail staff in
English without using an interpreter. Ormson also testified that on one occasion,
Kundilovski asked whether Ormson “knew of anybody else that could play chess
because he couldn’t find anybody that he could play with decently, and then he made
a joke he was going to have to play with staff.” Kundilovski denied making that
statement and testified he had first learned how to play chess while in jail.

¶24 The circuit court made several findings of fact at the close of the
postconviction hearing. First, the court found the testimony of Schlough, DeVries,
and Ormson to be credible. While the court acknowledged Leske’s testimony
regarding Kundilovski’s language comprehension difficulties, it noted Leske “was
not here at the time of the plea.” The court stated, “[T]here’s a transcript [of the
plea hearing], so the record is what it is as it relates to the plea when the Court made

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findings that … Kundilovski knowingly, voluntarily, and intelligently entered his
plea.”

¶25 The circuit court next stated that it found Kundilovski’s testimony
during the postconviction hearing “to be somewhat incredible,” and the court
believed that even though Kundilovski had a “limited understanding of English, he
was able to understand quite a bit.” The court observed that Kundilovski had been
in the United States “for several years” and had “worked as a commercial truck
driver.” The court also observed that the video of DeVries’ interview with
Kundilovski showed Kundilovski “talking and understanding some basic stuff
certainly that the trooper was talking with him about.” The court further noted that
the jail staff “were in a position to be able to observe” Kundilovski, and he “was
able to function in the jail without an interpreter.”

¶26 The circuit court also found that Schlough spoke to Kundilovski about
the plea agreement on multiple occasions, and from Schlough’s perspective, “it
appeared that his client understood these concepts.” In addition, the court discussed
its own impression of Kundilovski’s understanding of the concepts discussed during
the plea hearing, stating:

[W]hat I recall observing him, his responses were
appropriate; he understood what he was being asked. And if
he carried with him some belief that, you know, his attorney
… told him, you know, I think it might be in this range, he
clearly was told that the Court was not bound by a
recommendation and he was told what the maximum
possible penalties were. And, again, these concepts were
explained to him by … Schlough on a number of occasions.

¶27 The circuit court therefore stated it was “not satisfied or convinced …
that … Kundilovski did not understand or know what he was doing when he entered
the plea.” Accordingly, the court saw “no reason” to disturb its determination

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during the plea hearing that Kundilovski’s pleas were knowing, intelligent, and
voluntary. The court reiterated: “[F]rom the Court’s perspective it appeared that he
understood; he said he understood; he gave … appropriate answers to the questions
the Court had. It was, in the Court’s opinion, not extremely complicated.” The
court therefore concluded Kundilovski had failed to demonstrate the existence of a
manifest injustice requiring plea withdrawal.

¶28 Turning to Kundilovski’s ineffective assistance claim, the circuit
court concluded Schlough’s representation was neither deficient nor prejudicial.
The court noted that Schlough had “spent quite a bit of time with [Kundilovski]
explaining things,” including the maximum penalties, which the court had also
explained during the plea hearing. The court also stated that Schlough was not
ineffective merely because his estimate regarding the length of Kundilovski’s
sentences turned out to be incorrect. The court further stated the plea agreement
was straightforward, in that both parties were free to argue at sentencing, and the
State had not agreed to recommend any specific sentence. The court therefore
denied Kundilovski’s postconviction motion for plea withdrawal, and this appeal
follows.

DISCUSSION

I. Knowing, intelligent, and voluntary pleas

¶29 When a defendant seeks to withdraw a guilty plea after sentencing, he
or she must prove, by clear and convincing evidence, that a refusal to allow plea
withdrawal would result in manifest injustice. State v. Cajujuan Pegeese, 2019 WI
60, ¶15, 387 Wis. 2d 119, 928 N.W.2d 590. “A manifest injustice occurs when there
has been ‘a serious flaw in the fundamental integrity of the plea.’” State v. Cross,
2010 WI 70, ¶42, 326 Wis. 2d 492, 786 N.W.2d 64 (citation omitted). A defendant

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may establish a manifest injustice by proving that his or her plea was not entered
knowingly, intelligently, and voluntarily. Cajujuan Pegeese, 387 Wis. 2d 119, ¶15.

¶30 Whether a plea was entered knowingly, intelligently, and voluntarily
is a question of constitutional fact that we review independently. Id., ¶16. In
making that determination, however, we accept the circuit court’s findings of
historical or evidentiary fact unless they are clearly erroneous. Id.

¶31 As noted above, in this case, Kundilovski argues his pleas were not
knowing, intelligent, and voluntary due to a combination of three factors: (1) his
language comprehension difficulties; (2) the lack of an interpreter during his
out-of-court discussions with Schlough; and (3) Schlough’s “misleading” advice
that Kundilovski was likely to receive aggregate sentences totaling only three to
seven years. Based on these factors, Kundilovski asserts he did not understand the
maximum penalties he faced or the fact that the circuit court was not bound by the
parties’ sentence recommendations, and he instead believed the court would be
limited to imposing sentences totaling only three to seven years.

¶32 The circuit court’s findings of fact defeat Kundilovski’s claim that his
pleas were not knowing, intelligent, and voluntary. Notably, Kundilovski does not
argue that any of the court’s findings are clearly erroneous. In particular, he does
not challenge any of the court’s credibility findings. When the circuit court acts as
the finder of fact, it is the ultimate arbiter of the witnesses’ credibility and of the
weight to be given to their testimony. State v. Peppertree Resort Villas, Inc., 2002
WI App 207, ¶19, 257 Wis. 2d 421, 651 N.W.2d 345.

¶33 The circuit court rejected Kundilovski’s claim that his language
comprehension difficulties prevented him from validly entering his pleas. Although
Kundilovski testified he did not understand that the court could impose sentences

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exceeding seven years, the court rejected his testimony as incredible. Based on its
own observations of Kundilovski during the plea hearing, the court found that
Kundilovski understood the information the court had provided during the plea
hearing, which included the maximum possible penalties and an admonition that the
court was not bound by the parties’ sentencing recommendations. We will not
disturb the court’s finding regarding Kundilovski’s credibility, as the court had the
opportunity to observe Kundilovski’s demeanor during both the plea and
postconviction hearings. See State v. Triplett, 2005 WI App 255, ¶9, 288 Wis. 2d
515, 707 N.W.2d 881.

¶34 The circuit court acknowledged Leske’s testimony regarding
Kundilovski’s poor language comprehension. The court gave that testimony little
weight, however, because Leske was not present during the plea hearing. The court
instead relied on its own observations of Kundilovski’s conduct during that hearing.
A fact finder is not required to accept an expert witness’s opinion, even if it is
uncontradicted. See State v. Fleming, 181 Wis. 2d 546, 561, 510 N.W.2d 837
(Ct. App. 1993). Further, Leske testified that Kundilovski’s impairments meant that
he needed extra help to understand things. However, the court found credible
Schlough’s testimony that he took extra time to explain the plea agreement and
questionnaire to Kundilovski.

¶35 Other evidence in the record further supports the circuit court’s
finding that Kundilovski’s language comprehension was not so limited as to prevent
him from knowingly, intelligently, and voluntarily entering his pleas. See State v.
Young, 2009 WI App 22, ¶17, 316 Wis. 2d 114, 762 N.W.2d 736 (2008) (stating
we search the record for evidence that supports the circuit court’s factual findings).
The court found Ormson’s testimony credible. Ormson testified that Kundilovski
made a comment while in jail about not being able to find a decent chess opponent.

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That testimony suggests Kundilovski’s mental faculties were not significantly
impaired after the accident. In addition, Kundilovski himself testified that he
learned to play chess while in jail, which further suggests that his mental functioning
was sufficient to allow him to knowingly, intelligently, and voluntarily enter his
guilty pleas.

¶36 The circuit court also rejected the evidence Kundilovski presented to
support his claim that his pleas were not knowing, intelligent, and voluntary due to
the lack of an interpreter during his out-of-court meetings with Schlough. Instead,
the court expressly found Schlough’s testimony credible. Schlough testified that
although Kundilovski initially struggled to understand certain legal concepts,
Schlough was ultimately able to explain those concepts in a way that Kundilovski
could understand by breaking them down into simpler terms and by using translation
software when necessary. Schlough’s testimony supports the court’s finding that
Kundilovski was able to understand the information Schlough presented during their
out-of-court discussions, even without an interpreter.

¶37 Other evidence further supports the court’s finding in that regard. The
court credited DeVries’ testimony that during his postaccident interview with
Kundilovski in the hospital, Kundilovski was able to answer some of his questions
without waiting for the interpreter to translate them into Russian. The court also
relied on the video recording of that interview. In addition, the court credited
Ormson’s testimony that Kundilovski was able to communicate with jail staff
without an interpreter.

¶38 Furthermore, Kundilovski’s own testimony did not support his claim
that he needed an interpreter during his out-of-court discussions with Schlough.
Kundilovski conceded that Schlough told him “the judge could pick whatever

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sentence he wanted to pick no matter what the plea deal was.” In addition,
Kundilovski did not testify that he could not understand Schlough’s advice, nor did
he testify that was unaware of the maximum penalties. Kundilovski’s testimony
therefore supports the court’s finding that Schlough was able to communicate
adequately with Kundilovski, even without an interpreter.

¶39 Finally, the circuit court rejected Kundilovski’s claim that Schlough’s
“misleading” advice regarding the likely length of Kundilovski’s sentences
rendered his pleas invalid. The court found that Schlough had explained the
maximum penalties to Kundilovski, as well as the fact that the court was not bound
by the parties’ recommendations, and that Kundilovski understood that information.
The court further found, based on Schlough’s testimony, that Schlough merely
provided Kundilovski with an estimate of the likely length of his sentences. Thus,
the court implicitly found that Schlough never promised or guaranteed that
Kundilovski would receive aggregate sentences totaling only three to seven years if
he pled guilty. While Kundilovski testified he believed the court was limited to
imposing sentences of three to seven years, the court did not find his testimony
credible.

¶40 Again, Kundilovski does not argue that any of the circuit court’s
factual findings are clearly erroneous. The court’s findings establish that
Kundilovski was told—and understood—that the court could impose the maximum
penalties and was not limited by any sentence recommendations. On this record,
the court properly rejected Kundilovski’s claim that his pleas were not knowing,
intelligent, and voluntary because he erroneously believed that the court was limited
to imposing sentences totaling three to seven years.

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II. Ineffective assistance of counsel

¶41 In the alternative, Kundilovski argues he is entitled to plea withdrawal
because Schlough was constitutionally ineffective. A defendant may demonstrate
the manifest injustice necessary for plea withdrawal after sentencing by showing
that he or she received ineffective assistance of trial counsel. State v. Dillard, 2014
WI 123, ¶84, 358 Wis. 2d 543, 859 N.W.2d 44.

¶42 To establish ineffective assistance, a defendant must prove: (1) that
trial counsel’s performance was deficient; and (2) that the deficiency prejudiced the
defense. Id., ¶85. To prove deficient performance, a defendant must show that trial
counsel’s performance fell outside the wide range of professionally competent
assistance. Id., ¶88. To establish prejudice, a defendant must show there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Id., ¶95. In the plea withdrawal context,
this requires a defendant to show that absent counsel’s errors, he or she would not
have pled guilty and would have insisted on going to trial. State v. Cooper, 2019
WI 73, ¶29, 387 Wis. 2d 439, 929 N.W.2d 192.

¶43 An ineffective assistance of counsel claim presents a mixed question
of fact and law. Id., ¶14. We will uphold the circuit court’s factual findings unless
they are clearly erroneous. Id. However, whether the facts demonstrate that
counsel’s performance was deficient and prejudicial are questions of law that we
review independently. Id.

¶44 Here, Kundilovski argues Schlough was ineffective by failing to use
an interpreter when meeting with him outside of court, by failing to “retain an expert
to establish … Kundilovski’s language limitations,” and by incorrectly informing
Kundilovski that he was likely to receive sentences totaling only three to seven

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years. Based on the circuit court’s factual findings, we conclude Kundilovski has
failed to establish that Schlough performed deficiently in any of these respects.

¶45 As discussed above, the circuit court found that during Schlough and
Kundilovski’s out-of-court discussions, Schlough was able to ensure that
Kundilovski understood the maximum penalties for his offenses and that the court
was not bound by any sentence recommendations. Schlough testified he did so by
explaining those concepts as simply as possible in English and by using translation
software when necessary. Schlough also testified that he believed Kundilovski
understood him, and the court accepted his testimony in that regard. Schlough
further testified that he explained the concept of consecutive sentences to
Kundilovski, and Kundilovski seemed to understand it.1 Kundilovski himself
testified that he did not ask for an interpreter when speaking with Schlough as he
did not think an interpreter “could help [him] in any way.” Under these
circumstances, Schlough could reasonably conclude it not was necessary to retain
either an interpreter or an expert to assess Kundilovski’s language comprehension.
Schlough’s failure to take those actions thus did not fall outside the wide range of
professionally competent assistance and, as such, did not constitute deficient
performance.

¶46 Nor did Schlough deficiently mislead Kundilovski into believing he
would receive sentences totaling only three to seven years. The circuit court found

1
Although Schlough acknowledged he had told postconviction counsel that he was not
“one hundred percent sure whether … Kundilovski understood what consecutive sentencing
meant,” it is clear the circuit court implicitly found that Kundilovski understood that concept.
Moreover, Schlough later testified that although he had explained the concept of judicial sentencing
discretion to Kundilovski and believed Kundilovski understood that concept, he could not “say for
sure [whether Kundilovski understood] because I’m not … Kundilovski.” It appears likely that
when Schlough told postconviction counsel he was not one hundred percent sure whether
Kundilovski understood the concept of consecutive sentencing, he similarly meant that he could
not say for certain whether Kundilovski understood that concept because he is not Kundilovski.

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No. 2020AP322-CR

that Schlough merely provided Kundilovski with an estimate of the likely length of
his sentences. The court thus implicitly found that Schlough did not guarantee or
promise that Kundilovski’s sentences would not exceed three to seven years. While
Schlough’s prediction turned out to be incorrect, Schlough testified it was based on
his consultation with an individual who wrote private PSIs and had previously
prepared PSIs for the DOC. Kundilovski does not develop any argument on appeal
that Schlough’s reliance on that individual’s opinion was unreasonable.

¶47 Kundilovski has also failed to establish that he suffered prejudice as a
result of Schlough’s allegedly deficient performance. While Kundilovski testified
he would not have entered his pleas had he known that the circuit court could impose
the maximum sentences, the court did not find his testimony to be credible. The
court instead found that Kundilovski was informed—and understood—both the
maximum penalties for his offenses and that the court was not bound by the parties’
sentence recommendations. The court also implicitly found that Schlough never
promised Kundilovski that his sentences would not exceed three to seven years.

¶48 On these facts, Kundilovski has failed to establish that absent
Schlough’s allegedly deficient performance, he would not have pled guilty and
would have insisted on going to trial. The facts instead show that Kundilovski was
informed and understood that the court could impose the maximum penalties, and
he nevertheless accepted the State’s plea offer. The court therefore properly rejected
Kundilovski’s ineffective assistance claim.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2017-18).

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