State v. Tyler M. Metzner

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.
April 14, 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 Nos. 2020AP454 Cir. Ct. Nos. 2015CF626
2015CF680
2020AP455 2015CF681
2020AP456 2015CF730
2016CF80
2020AP457
2020AP458

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TYLER M. METZNER,

DEFENDANT-APPELLANT.

APPEALS from an order of the circuit court for Sheboygan County:
REBECCA L. PERSICK, Judge. Affirmed.

Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.
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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. In this consolidated appeal, Tyler M. Metzner
appeals from an order of the circuit court granting in part and denying in part his
postconviction motion for plea withdrawal. Metzner sought to withdraw his guilty
pleas and reinstate his pleas of not guilty by reason of mental disease or defect
(NGI) on the basis of ineffective assistance of counsel. Metzner also argues that
he was improperly convicted and sentenced on felony bail jumping charges, that
the record fails to establish a factual basis for a charge of felony escape, and that
he was subjected to cruel and unusual punishment in violation of his Eighth
Amendment rights. We reject Metzner’s arguments and affirm.

Background

¶2 Between May 28, 2015, and February 2, 2016, Metzner amassed
fifty-three misdemeanor and felony charges in eleven criminal cases. At issue in
this appeal are circuit court case Nos. 2015CF626, 2015CF680, 2015CF681,
2015CF730, and 2016CF80.1 All involved charges for conduct that occurred
while Metzner was in custody at the Sheboygan County Detention Center (SCDC).

1
We ordered the appeals in these cases consolidated on March 12, 2020.

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¶3 In these cases,2 Metzner was charged twice for “break[ing] a fire
suppressant sprinkler head off of the ceiling,” which, under at least one
circumstance, caused “a large volume of water to enter the cell at a rapid rate.”3
He also spit and threw feces at correctional officers and healthcare professionals,
stuffed his blanket in the toilet, punched the security camera in his cell, and
smeared his feces on the cell window and walls on multiple occasions. In a
particularly egregious incident, Metzner attacked a correctional sergeant, striking
him in the head repeatedly.

¶4 According to the complaints, Metzner reported that he did these
things “because he was bored,” was “having significant issues with some of the
guards in the facility,” and was upset about the conditions in his cell. “He stated
that it was either damage the sprinkler heads or, in his words, receive a homicide
charge.” Metzner reported that “all of these things, coupled with being placed in
complete seclusion, [was] driving his anger level through the roof,” and when

2
In case No. 2015CF626, the criminal complaint charged ten counts, including
interference with fire fighting, pursuant to WIS. STAT. § 941.12 (2019-20); two counts of felony
bail jumping; criminal damage to property; and six counts of misdemeanor bail jumping. All
references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted. In case
No. 2015CF680, the complaint charged six counts, again for interference with fire fighting,
criminal damage to property, felony bail jumping, and three counts of misdemeanor bail jumping.
In case No. 2015CF681, the State charged battery by prisoner, pursuant to WIS. STAT.
§ 940.20(1); escape, pursuant to WIS. STAT. § 946.42(3)(a); assault by prisoner, pursuant to WIS.
STAT. § 946.43(1m)(a); and resisting an officer causing a soft tissue injury, pursuant to WIS.
STAT. § 946.41(1), (2r). In case No. 2015CF730, the charges were three counts of assault by
prisoner, three counts of misdemeanor bail jumping, and two counts of felony bail jumping. And
finally, in case No. 2016CF80, the State charged two counts of assault by prisoner and four
counts of felony bail jumping.
3
Metzner “had either successfully removed or attempted to remove the sprinkler head”
at least five times.

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warned that if he continued to behave in this way he would receive additional
charges, he “said that until he receives the things he wants at the detention center,
he will rip off every sprinkler head.”

¶5 Metzner was in court on November 4, 2015, for a preliminary
hearing, which he waived, in case Nos. 2015CF618 and 2015CF626. During that
hearing, he informed the court that he was on medication for “[d]epression,
schizophrenia, and anxiety disorder,” and that the “treatment” “[k]ind of”
“interfere[s] with [his] ability to understand what’s going on here.” When the
court investigated, Metzner responded, “I can understand what’s going on.” At
that point, trial counsel stated that Metzner intended to enter an NGI plea and that
there was “a question of competency based on a review of the [c]omplaints.” Trial
counsel reported that it was her “goal to have [Metzner] transferred to an inpatient
[mental health] facility and be evaluated as soon as possible.” The court entered
the competency evaluation order the next day.

¶6 On December 2, 2015, Metzner was again in court for the
preliminary hearings in case Nos. 2015CF680 and 2015CF681. Again, Metzner
entered NGI pleas, and trial counsel expressed that “[t]hese cases are frustrating”
and “heartbreaking because Mr. Metzner is in serious need of mental health
assistance.”4 Trial counsel explained,

4
It is important to note that during Metzner’s time at SCDC, he was receiving prescribed
medications for treatment of his mental health, and he reported that he “talk[s] to the health
person at the jail, like, every week.”

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I think the cases now where he has allegedly hurt an
officer, you know, he’s consistently on suicide watch. He
is a danger to himself. He is a danger to others. I don’t
know why he can’t be transferred to Mendota [mental
health facility]. I’m told it can’t be until all these cases are
resolved. I feel we are on a vicious cycle we can’t seem to
break.

So I don’t know really what else to do, and I feel like
until we get these cases resolved we’re going to keep
coming back here. And I’m concerned for Mr. Metzner’s
health, and I’m concerned for the safety of the Detention
Center as well. I would like to see him transferred to
Mendota or Winnebago [mental health facility] so he could
receive help.

The court, the State, and counsel then discussed the situation, with the court
indicating that “I’m not aware of any authority I have to simply transfer [Metzner
to a mental health facility] at this point without a mental commitment order or
some type of disposition in these cases.” The hearing concluded with the State
and the court providing suggestions to assist counsel in obtaining a transfer for
Metzner.

¶7 On December 11, 2015,5 Dr. Mary Kay Luzi, Ph.D., completed her
competency evaluation of Metzner, after which the circuit court found Metzner
competent based on Luzi’s report and trial counsel’s stipulation to waive the
competency hearing. Counsel then pursued plea negotiations with the goal of
achieving a global resolution of the charges.

5
That same day, Metzner picked up the charges in case No. 2015CF730. Metzner
waived his preliminary hearing on these charges at his global plea hearing.

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¶8 Metzner ultimately resolved the cases with a global plea agreement.6
The court ordered a presentence investigation report (PSI) and held the sentencing
hearing on March 21, 2016. The circuit court sentenced Metzner to a total of
seventeen years’ initial confinement and seventeen years’ extended supervision.

¶9 In October 2018, Metzner filed a postconviction motion seeking to
withdraw his guilty pleas. The circuit court held an evidentiary hearing on the
motion. Trial counsel and Dr. Steven Kaplan, Ph.D., testified. The court denied

6
Metzner pled to three counts of expelling bodily fluids and one count of felony bail
jumping in case No. 2015CF730; one count of battery by prisoner, one count of escape, one count
of assault by prisoner causing fear of death, and one count of resisting an officer causing soft
tissue injury in case No. 2015CF681; one count of interfering with fire equipment, one count of
criminal damage to property, and one count of felony bail jumping in case No. 2015CF680; and
one count of interfering with fire equipment, one count of felony bail jumping, and one count of
criminal damage to property in case No. 2015CF626. The remaining counts in those cases were
dismissed and read in for sentencing. Case Nos. 2015CF618, 2015CM815, 2015CM768,
2015CM557, and 2015CM499 were also dismissed in their entirety and read in.

After his plea hearing, but before sentencing, Metzner picked up case No. 2016CF80 on
February 2, 2016. Upon further negotiations, Metzner pled to two counts of expelling bodily
fluids at a corrections officer and one count of felony bail jumping. The remaining charges, as
well as case No. 2016CM71, were dismissed and read in.

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Metzner’s motion for plea withdrawal, finding that Metzner had not met his
burden.7 Metzner appeals.

NGI

¶10 We begin with Metzner’s argument that he “should be allowed to
withdraw his guilty pleas and reinstate his NGI pleas due to prejudicial and
ineffective assistance of counsel in addressing and handling his serious mental
health issues.” After sentencing, a defendant is entitled to withdraw a plea only if
he or she establishes by clear and convincing evidence that withdrawal is
necessary to correct a “manifest injustice.” State v. Taylor, 2013 WI 34, ¶¶24, 48,
347 Wis. 2d 30, 829 N.W.2d 482; State v. Thomas, 2000 WI 13, ¶16, 232 Wis. 2d
714, 605 N.W.2d 836 (“If a defendant moves to withdraw the plea after
sentencing, the defendant ‘carries the heavy burden of establishing, by clear and
convincing evidence, that the trial court should permit the defendant to withdraw
the plea to correct a manifest injustice.’” (citation omitted)). In other words,
“there are ‘serious questions affecting the fundamental integrity of the plea.’”

7
Metzner’s motion also alleged that the record failed to establish an adequate basis for
the charges of interfering with fire fighting. Metzner noted that he pled to WIS. STAT.
§ 941.12(1), which provides that “[w]hoever intentionally interferes with the proper functioning
of a fire alarm system or the lawful efforts of fire fighters to extinguish a fire is guilty of a Class I
felony.” Metzner claimed that he did not interfere with the “proper functioning of a fire alarm
system” as “[t]here [we]re no allegations that any ‘alarm’ sounded or that any fire fighter was
otherwise alerted.” The State conceded that judgment on those charges was entered in error and
that Metzner should have been charged under § 941.12(2), which provides that “[w]hoever
interferes with, tampers with or removes, without authorization, any fire extinguisher, fire hose or
any other fire fighting equipment, is guilty of a Class A misdemeanor.” The court granted
Metzner’s motion as to that issue and ordered the convictions on those counts vacated and the
charges dismissed.

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State v. Dillard, 2014 WI 123, ¶36, 358 Wis. 2d 543, 859 N.W.2d 44 (citation
omitted). “One way to demonstrate manifest injustice is to establish that the
defendant received ineffective assistance of counsel.” Id., ¶84.

¶11 To establish ineffective assistance of counsel, the defendant must
show both that trial counsel’s performance was deficient and that the deficiency
prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984).
To find deficient performance, the defendant must establish that “counsel’s
representation ‘fell below an objective standard of reasonableness’ considering all
the circumstances.” State v. Carter, 2010 WI 40, ¶22, 324 Wis. 2d 640, 782
N.W.2d 695 (citation omitted). Our review of counsel’s performance is “highly
deferential,” and “[c]ounsel enjoys a ‘strong presumption’ that his [or her] conduct
‘falls within the wide range of reasonable professional assistance.’” Id. (citation
omitted).

¶12 To establish prejudice, “the defendant must show that ‘there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.’” Id., ¶37 (citation omitted). Where
the defendant seeks post-sentencing plea withdrawal, he or she “must show that
there is a reasonable probability that, but for counsel’s errors, he [or she] would
not have pleaded 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 (quoting Hill v.
Lockhart, 474 U.S. 52, 59 (1985)). We need not reach both prongs of the
Strickland test if one is dispositive. Strickland, 466 U.S. at 697. Whether the
defendant received ineffective assistance of counsel is a question of constitutional
fact: we uphold the circuit court’s findings of fact unless they are clearly

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erroneous, but we independently determine whether counsel provided
constitutionally ineffective assistance. Dillard, 358 Wis. 2d 543, ¶86.

¶13 On appeal, Metzner faults trial counsel for allowing him to be “held
in isolation for months” at SCDC where he “received no meaningful mental health
treatment,” which led to the charges in these cases. Citing to Jones ‘El v. Berge,
164 F. Supp. 2d 1096, 1098, 1102-1103 (W.D. Wis. 2001), Metzner argues that
“[c]onditions of confinement in county jails are notoriously more difficult than in
state prisons, especially for inmates with mental health problems,” as “isolation”
and “[t]he resultant sense of doom can render inmates incapable of following the
rules.” According to Metzner, trial counsel “did not believe [he] was truly
mentally ill,” based on the competency report from Luzi indicating a history of
“malingering,” and, as a result, “everyone” “turned[ed] a blind eye to how the
isolation and absence of treatment at SCDC impacted him.”

¶14 Metzner also faults trial counsel for “abandoning his NGI defense.”
He explains, “It was deficient to unilaterally abandon Metzner’s NGI defense
based on a competency report and an erroneous reading of his Winnebago records,
particularly without: (1) getting an NGI evaluation; or (2) consulting any mental
health professional; or (3) at least picking up the phone to call Dr. Kaplan [who]
had evaluated Metzner in 2010 and found he had a valid NGI defense.”

¶15 We conclude that Metzner has failed to prove that trial counsel
performed deficiently. First, the record on appeal is clear that trial counsel took
steps to facilitate Metzner’s removal from SCDC and transfer to a mental health
facility. Counsel testified that she recognized early on that Metzner was having

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difficulties. At the November 4, 2015 hearing, counsel indicated that she intended
to get Metzner transferred out of SCDC, and she again raised the issue at the
hearing on December 2, 2015. Although her efforts were ultimately unsuccessful,
she testified that she attempted to assist Metzner by filing a motion to reduce his
bail to a signature bond so he could be released to a mental health facility; calling
mental health facilities to see if they would take him, which they refused to do
without a court order; calling the Department of Health Services and speaking
with corporation counsel to have an evaluator meet with him; calling SCDC,
which “would not get involved because [it] said that [it] had mental health
treatment there, and he was getting it, and it was a locked inpatient facility,” and
asking the circuit court for an order releasing Metzner to a mental health facility.
Trial counsel also arranged for a physician, who “had helped [Metzner] a lot
through church and in the community,” to have “visitation with [Metzner].”
Counsel indicated that “at the time the Court, the district attorney, and I were all
under the impression that he would be transferred to Mendota” as a result of the
competency evaluation, and she found out in early December 2015 that would not
be the case. Based on this record, trial counsel was not constitutionally deficient
in her efforts.

¶16 As to trial counsel’s decision not to pursue an NGI plea and to work
toward a global resolution of Metzner’s charges, we conclude that was a
reasonable strategic decision based on an appropriate investigation under the
circumstances. Counsel began her representation of Metzner from a posture of an
NGI plea until the point at which she reviewed Luzi’s competency evaluation.
Luzi’s evaluation did not only find that Metzner was competent to proceed, but her

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review of collateral records also indicated that he had a history of “[m]alingering
(i.e., feigning/exaggerating psychiatric symptomatology for secondary gain
purposes).” She reported that in 2003 Metzner was found not competent, but
“during subsequent competency restoration at [the mental health facility], he was
assessed as malingering along with diagnoses of unspecified depressive disorder,
antisocial personality and substance dependence.” Then, in 2010, Metzner was
adjudicated NGI8—for charges similar to those at issue in these cases—but when
he was sent to the mental health facility, “he was assessed to show no evidence of
serious mental illness, either major mood or thought disorder, despite being on no
psychotropic medication.” Luzi noted that Metzner’s mental health contacts were
“widely spaced and occurring in the context of legal problems with local police.”
Specifically, she found a “lack of support for a serious mental illness—either
major mood disorder, thought disorder or psychotic symptomatology.”

¶17 After trial counsel’s investigation, including a review of “all of
[Metzner’s] records and then the competency evaluation,” she at that point
determined that an NGI plea was “not viable.” She testified,

I know competency and NGI are very different situations.
And if the competency report would have come back and
given me something to go on, but it was so damaging. And
then the review of the records were so damaging that to
pursue that to keep [Metzner] at the Detention Center any
longer, you know, what I was hearing was the only way to
get him help was to have him plead and get the help he
needed. I didn’t see how an NGI was going to help him
other than dragging it out and potentially having him face
more jail time.

8
Our understanding from the record is that Metzner was adjudicated NGI based on an
evaluation by Kaplan. Kaplan’s findings were disputed by Luzi in her evaluation.

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¶18 After the plea hearing, trial counsel also sought an expert opinion
from Dr. Melissa Westendorf, J.D., Ph.D., as a “Hail Mary.” After a one and one-
half hour interview with Metzner and a review of his records, Westendorf reported
that “it does not appear as though I can support his special plea of not guilty by
reason of mental disease or defect.” Westendorf did not “want to write an
evaluation that would be submitted to the Court that would be damaging to
[Metzner],” so she instead wrote a short letter. In it, she opined that “[w]hile
[Metzner] certainly experiences some drastic and significant emotional
dysregulation,” this was “insufficient to negate his responsibility for his alleged
offenses,” as “his acting out [wa]s more likely the result of his antisocial
characteristics.”

¶19 At the postconviction motion hearing, Metzner called Kaplan to
testify. Kaplan interviewed Metzner in October 2018 at the request of
postconviction counsel, but he had also evaluated him previously for an NGI plea.
Although we will not recount the details of Kaplan’s testimony, he opined that his
diagnosis of Metzner with borderline personality and bipolar disorder with
psychosis was consistent with an NGI defense and that Metzner was not
malingering in 2015. Kaplan explained that he did not consider Luzi’s report in
his opinion as it was a competency evaluation and not an NGI evaluation, nor did
he consider Westendorf’s letter as there was “not a lot of meat” to it. On cross-
examination, Kaplan admitted that he did not test Metzner for possible
malingering in his evaluations, and he agreed that “just because someone has had a
mental health diagnosis” does not mean that he or she is “necessarily NGI.”

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¶20 The circuit court made extensive findings of fact before concluding
that Metzner failed to establish that trial counsel’s performance was deficient and
prejudicial; we agree with the court’s conclusion.

¶21 The question before this court is whether Metzner was denied the
effective assistance of counsel, and we conclude that he was not.9 Trial counsel’s
decision to pursue a global resolution instead of presenting an NGI defense was
clearly strategic, as indicated by her testimony, based on her view of the strength
of Metzner’s NGI defense and her goal to resolve these cases quickly so as to
transfer Metzner out of SCDC. This strategic decision was made after an
investigation of Metzner’s competency evaluation as well as his mental health
history and was supported by Westendorf’s independent assessment, sought by
counsel. See Strickland, 466 U.S. at 690 (“[S]trategic choices made after
thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable.”).

¶22 Trial counsel was under no legal requirement to contact Kaplan
specifically, nor was she required to continue seeking an opinion from multiple
experts until she found one that would support Metzner’s NGI plea. Even if one
could argue that counsel’s investigation was not sufficiently “thorough,” two
experts opined that Metzner’s mental health situation could not support an NGI
plea, and it was reasonable for her to rely on those opinions under the
circumstances. See State v. Balliette, 2011 WI 79, ¶26, 336 Wis. 2d 358, 805

9
As Metzner recognizes, this case does not turn on whether Metzner was truly NGI or
was malingering. We take no position on that question as it is not before this court.

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N.W.2d 334 (“Even decisions made with less than a thorough investigation may
be sustained if reasonable, given the strong presumption of effective assistance
and deference to strategic decisions.”). Accordingly, we conclude that trial
counsel did not perform deficiently, and, as a result, did not provide ineffective
assistance. See Strickland, 466 U.S. at 697 (noting that we need not address both
prongs of the analysis if the defendant does not make a sufficient showing on one
of them). As Metzner did not receive ineffective assistance of counsel, there was
no manifest injustice and he is not entitled to plea withdrawal.10

10
On appeal, Metzner suggests that his postconviction motion was both a Nelson v.
State, 54 Wis. 2d 489, 195 N.W.2d 629 (1972)/State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50
(1996), motion and a State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), motion, which
are applicable in different factual circumstances. “A defendant invokes Bangert when the plea
colloquy is defective; a defendant invokes Nelson/Bentley when the defendant alleges that some
factor extrinsic to the plea colloquy, like ineffective assistance of counsel or coercion, renders a
plea infirm.” State v. Howell, 2007 WI 75, ¶74, 301 Wis. 2d 350, 734 N.W.2d 48. Metzner notes
in his brief-in-chief that

[t]he real question, however, left unaddressed, was whether
Metzner’s abandonment of [the NGI] defense, along with his
right to have a jury decide it, was truly voluntary and intelligent.
On this front it is notable, even if not dispositive, that the plea
colloquy never covered the import of withdrawing an NGI plea.
State v. Burton, 2013 WI 61, ¶¶83-84, 349 Wis. 2d 1, 832
N.W.2d 611 (strongly recommending that plea colloquies
expressly address withdrawals of NGI pleas).

Aside from this paragraph, Metzner does not develop this argument, see State v. Pettit, 171
Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992), and his focus on appeal as it relates to the
NGI plea was clearly on his ineffective assistance of counsel claim.

(continued)

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Felony Bail Jumping

¶23 Metzner also argues that he was improperly convicted and sentenced
on felony bail jumping charges. On appeal, Metzner advances two different
arguments on this issue: ineffective assistance of counsel and an inadequate
factual basis for the bail jumping convictions. We address both arguments below.

¶24 First, Metzner claims that his counsel’s failure to recognize that he
was improperly charged with a felony was deficient performance that prejudiced
him “because it ended with him being wrongfully charged and convicted of felony
bail jumping.” As noted in footnote seven, Metzner pled to two counts of felony
interfering with fire fighting under WIS. STAT. § 941.12(1), which requires that a
person “intentionally interfere[] with the proper functioning of a fire alarm
system.” The State agreed that Metzner should have been charged under
§ 941.12(2)—a misdemeanor. The circuit court ordered that the convictions on
those counts be vacated and the charges dismissed. While acknowledging that

We do note that the circuit court engaged Metzner in a proper plea colloquy. The court
confirmed that Metzner had gone over the plea questionnaire and waiver of rights form with his
attorney, that he understood it, that he understood the constitutional rights he was giving up, that
he went over the elements of the crime for each of the cases he was pleading to with his attorney
and he understood those elements, and that no one threatened him. Metzner was, in his words,
“emotionally distressed” at the plea hearing, but he stated, “I understand I need to own up to the
mistakes I’ve made, and I’m sorry.” In response, the court paused the hearing twice to give
Metzner time to speak with his attorney off the record, even leaving the courtroom at one point so
Metzner could talk to counsel in private. Metzner then confirmed that he did not need more time
to talk to his attorney, that he was prepared to proceed, and that he was satisfied with counsel’s
representation. The court determined that the criminal complaints supported Metzner’s pleas and
noted that “although [Metzner was] distressed by these proceedings, understandably, [he did]
understand them” and that Metzner was “found to be competent.” The court concluded that
Metzner entered his pleas “freely, voluntarily, and intelligently.”

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those convictions were vacated, Metzner argues that “counsel’s failure to
recognize he was wrongfully charged with felonies” constituted deficient
performance and the prejudice was “not fully rectif[ied]” by vacating those
convictions.

¶25 We conclude that Metzner has failed to prove prejudice. See
Strickland, 466 U.S. at 697 (noting that we need not address both prongs of the
analysis if the defendant does not make a sufficient showing on one of them). The
focus of Metzner’s argument is that “had defense counsel done her job, the felony
charges under [WIS. STAT. §] 941.12 could never have survived a preliminary
hearing, and Metzner could never have been released on felony bail” and he could
not later have been charged with felony bail jumping. To prevail on an ineffective
assistance of counsel claim sufficient to establish that plea withdrawal is necessary
to correct a manifest injustice, Metzner must prove that: (1) he was denied the
effective assistance of counsel; (2) counsel’s error “caused him to plead guilty”11;
and (3) at the time of the plea, he was unaware of a potential challenge to the plea
due to counsel’s deficient performance. See State v. Harris, 2004 WI 64, ¶11, 272
Wis. 2d 80, 680 N.W.2d 737 (emphasis added); see also State v. Cooper, 2019 WI
73, ¶29, 387 Wis. 2d 439, 929 N.W.2d 192 (“[T]he prejudice component
specifically requires that ‘the defendant must show that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.’” (citation omitted)).

11
“We interpret the ‘cause’ element of the test … to mean that a defendant must
demonstrate that he would not have pled guilty but for the constitutional violation.” State v.
Harris, 2004 WI 64, ¶11 n.7, 272 Wis. 2d 80, 680 N.W.2d 737 (emphasis added).

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¶26 Metzner has not alleged or proven that counsel’s purported deficient
performance caused him to plead guilty. In other words, but for counsel’s error,
he would have rejected the global plea offer and gone to trial had the interfering
with fire fighting charges been reduced to misdemeanors and, as a result, the bail
jumping counts been charged as misdemeanors rather than felonies. Metzner’s
only response is that he “has proven, and the State does not dispute, that but for
counsel’s deficient performance, the bail jumping convictions would have been
misdemeanors, not felonies.” But that fact does not prove that he would not have
pled guilty and, thus, does not establish prejudice under the law. Metzner
understood his situation and why he was entering his pleas; as he explained at the
plea hearing, “[b]asically my understanding is it would be pointless to go to jury
trial ‘cuz I know what I’ve done, like. I’m not going to sit here like an idiot, and
I’m not going to play the Court for a fool.” Metzner does not dispute that he
would still have faced charges for multiple misdemeanors in addition to the other
felony charges, and he has not claimed that he would have gone to trial on all
those charges but for counsel’s error.

¶27 In the alternative, Metzner argues that if we fail to find ineffective
assistance of counsel, “there were inadequate factual bases for the bail jumping
convictions” as he was never released from custody on bond. A guilty plea must
be supported by a factual basis, and failure to establish a factual basis for a crime
to which the defendant has pled constitutes a manifest injustice warranting plea
withdrawal. See Thomas, 232 Wis. 2d 714, ¶17. Therefore, before accepting the
plea, the court must confirm that the facts supporting the charge actually constitute
the offense to which the defendant is about to plead. WIS. STAT. § 971.08(1)(b);

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State v. Bangert, 131 Wis. 2d 246, 262, 389 N.W.2d 12 (1986). “[A] factual basis
for a plea exists if an inculpatory inference can be drawn from the complaint or
facts admitted to by the defendant even though it may conflict with an exculpatory
inference elsewhere in the record and the defendant later maintains that the
exculpatory inference is the correct one.” State v. Black, 2001 WI 31, ¶16, 242
Wis. 2d 126, 624 N.W.2d 363. “[I]n the context of a negotiated guilty plea, … a
court ‘need not go to the same length to determine whether the facts would sustain
the charge as it would where there is no negotiated plea.’” State v. Smith, 202
Wis. 2d 21, 25, 549 N.W.2d 232 (1996) (citation omitted). “The determination of
the existence of a sufficient factual basis lies within the discretion of the trial court
and will not be overturned unless it is clearly erroneous.” Id.

¶28 Under State v. Hansford, 219 Wis. 2d 226, 244, 580 N.W.2d 171
(1998), three elements must be met for a bail jumping conviction: “(1) the
individual must have been arrested for, or charged with, a felony or misdemeanor;
(2) the individual must be released from custody on bond; and (3) the individual
must have intentionally failed to comply with the terms of his or her bond.” See
also WIS JI—CRIMINAL 1795. Metzner argues that he was “never released from
custody on a felony charge.”

¶29 At both plea hearings, the circuit court found that the criminal
complaints provided a factual basis for Metzner’s pleas. While Metzner does not
specify which bail jumping convictions he identifies as unsupported by sufficient
evidence, we note that all the complaints alleged that Metzner was given signature
bonds in case Nos. 2015CF618, 2015CF680, and/or 2015CF730 “with the
standard conditions, one of which was not to engage in criminal activity while out

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on bond.” Metzner does not point to any evidence in the record establishing that
this was not the case. Pursuant to those signature bonds, Metzner was effectively
released from custody, and by signing the signature bonds “he therefore
committed himself to its conditions.” See State v. Dewitt, 2008 WI App 134,
¶¶14, 17, 313 Wis. 2d 794, 758 N.W.2d 201 (“‘[R]elease’ refers to the defendant
posting the bond, be it signature or cash, and need not be accompanied by the
defendant’s physical departure from the jailhouse.”). The circuit court’s finding
that the complaints provided a factual basis for the plea was not clearly
erroneous.12

12
Metzner’s arguments are outlined in his briefs into an ineffective assistance of counsel
claim and an insufficient factual basis claim based on his release from custody on bond, pursuant
to the second element of bail jumping under State v. Hansford, 219 Wis. 2d 226, 244, 580
N.W.2d 171 (1998). To the extent Metzner means to argue that because the felony convictions
for interference with fire fighting were vacated on postconviction review, he could not have been
charged with felony bail jumping, Metzner has failed to develop this argument and does not cite
any authority to support his claim. See Pettit, 171 Wis. 2d at 646-47. The State was only
required to establish that Metzner was arrested for or charged with a felony. See Hansford, 219
Wis. 2d at 244; see also State v. Merryfield, 229 Wis. 2d 52, 60-64, 598 N.W.2d 251 (Ct. App.
1999) (explaining that the purpose of requiring a factual basis “is not to resolve factual disputes
about what did or did not happen at or before the time of the alleged offense—that is the function
of a trial, which a defendant who pleads other than not guilty expressly waives”). Metzner also
does not challenge the validity of the charges for the new crimes which gave rise to the bail
jumping charges. See Hansford, 219 Wis. 2d at 245.

Likewise, Metzner makes an undeveloped argument that he had already entered pleas in
case Nos. 2015CF680 and 2015CF730 when he picked up the bail jumping charge in case
No. 2016CF80, so “[t]o the extent that the fiction of ‘Metzner out on bail’ is deemed to have
survived that plea hearing, such would constitute [ineffective assistance of counsel], since it was
abundantly clear by that time that Metzner was extremely vulnerable to bail jumping charges.”
Metzner’s argument on this issue is conclusory and is unsupported by legal authority, and we
address it no further. See Pettit, 171 Wis. 2d at 646-47.

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Felony Escape

¶30 Metzner next argues that the record fails to establish an adequate
factual basis for a completed felony escape, and, thus, Metzner should be allowed
to withdraw his plea to that charge. We disagree.

¶31 Metzner pled guilty to escape pursuant to WIS. STAT. § 946.42(3)(a).
That statute provides that “[a] person in custody who intentionally escapes from
custody under any of the following circumstances is guilty of a Class H felony:
(a) Pursuant to a legal arrest for, lawfully charged with or convicted of or
sentenced for a crime.” Sec. 946.42(3)(a) (emphasis added). Metzner does not
dispute that he was legally arrested for this crime, but he argues that the question
is whether he “intentionally escape[d].”

¶32 The escape occurred when Metzner was “allowed to exit” the
“isolation cell” to take a shower under the supervision of the correctional sergeant.
Metzner assaulted the sergeant and then left the hallway where the showers were
located via a door and entered a second hallway. According to Metzner, he “did
not go through any locked door and thus never left a secure area. He went from
one hallway to another, and this was not an adequate factual basis for the charge of
‘Escape.’” At most, Metzner argues, it was an unsuccessful attempted escape.
Metzner cites to State v. Sugden, 143 Wis. 2d 728, 422 N.W.2d 624 (1988),
comparing Sugden’s escape to the circumstances of his own.

¶33 In Sugden, the question before the court was whether “Sugden
escape[d] the custody of the institution” when he did not leave the confines of the
outer walls. Id. at 730. There, the defendant and other inmates overpowered

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guards in the locked Wisconsin Cottage at the Kettle Moraine Correctional
Institution, forced the guard to unlock the exterior door, stole a station wagon, and
used the vehicle to “smash[] through” the main gate of the institution “but was up-
ended in the area between the inner gate and the outer perimeter of the sally port.”
Id. at 731-32. The court concluded that

“custody” per se of an institution is not directly related to
its geographical outer boundaries. There may be custody
without the walls and custody of various kinds, without
limitation, within the walls. Hence, from the face of the
statute as juxtaposed against the facts here, it is apparent
that the locked cottage where Sugden was held constituted
“custody of the institution.” When he intentionally left that
custody without lawful authority, his crime of escape was
complete.

Id. at 737.

¶34 Metzner suggests that his situation and that of Sugden are different
only because Sugden went out a locked door, but we see nothing in the court’s
decision indicating that is a requirement. In fact, the court explained that “[i]t is
equally clear from the examples in the statute that custody of an institution may
exist within the perimeters of an institution because of special treatment that is
given to particular inmates.” Id. at 736-37. Metzner was being held in an
isolation cell, and he was only allowed outside the locked isolation cell in the
presence of the correctional sergeant to use the shower. When he assaulted the
sergeant and left the shower and isolation area via a doorway into another hallway
without permission, an appropriate inference is that he left the “custody of the
institution” based on his “special treatment” in isolation. See id. at 737; see also
Black, 242 Wis. 2d 126, ¶16 (“[A] factual basis for a plea exists if an inculpatory
inference can be drawn from the complaint or facts admitted to by the defendant

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even though it may conflict with an exculpatory inference elsewhere in the record
and the defendant later maintains that the exculpatory inference is the correct one.
This is the essence of what a defendant waives when he or she enters a guilty or no
contest plea.” (citation omitted)). Thus, the complaint in this case establishes a
sufficient factual basis for Metzner’s guilty plea to the escape charge.

Eighth Amendment

¶35 Finally, Metzner argues that his Eighth Amendment rights were
violated. He explains that “a prison sentence of seventeen years, given the
devastating effects of segregation/isolation on mentally ill inmates, is cruel and
unusual under the facts of this case.” Metzner claims “he was held to account for
what could have been avoided”—had he been moved to a “secure psychiatric
facility where he could access appropriate diagnosis and treatment”—“by having
17 years of his life taken from him.” It is this entire set of circumstances that
Metzner posits was cruel and unusual. In essence, then, Metzner is not arguing
that his sentence alone was cruel and unusual, as he admits that his sentence was
not disproportionate to the crimes he committed; instead, he claims that his
sentence was cruel and unusual only due to the circumstances of his pretrial
detention.

¶36 We conclude that Metzner has failed to establish a violation of his
Eighth Amendment rights. We note that, based on our reading of Metzner’s
arguments, he does not argue that his Eighth Amendment rights were violated by
his pretrial detention, as pretrial detention does not implicate the Eighth

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Amendment and would instead be considered under the Fourteenth Amendment’s
Due Process Clause. See Bell v. Wolfish, 441 U.S. 520, 535 & n.16 (1979).

¶37 In support of his position, Metzner cites to Berge, 164 F. Supp. 2d at
1117, and Gillis v. Litscher, 468 F.3d 488, 490-91 (7th Cir. 2006), noting that
“there are uncanny similarities [between] the conditions of confinement Metzner
experienced” and those of the inmate in Gillis. Gillis and Berge, however, are
42 U.S.C. § 1983 cases—civil actions, and the plaintiffs challenging their
conditions of confinement were inmates at the Wisconsin Secure Program Facility
in Boscobel, the highest-security prison—not pretrial detainees. See Gillis, 468
F.3d at 489; Berge, 164 F. Supp. 2d at 1098. Despite these case citations, Metzner
clarifies that his claim is not against SCDC for cruel or unusual punishment.
Instead, Metzner’s argument is that his “prison sentence of seventeen years … is
cruel and unusual under the facts of this case.” (Emphasis added.)

¶38 The Eighth Amendment to the United States Constitution13 provides:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.”

“[W]hat constitutes adequate punishment is ordinarily left
to the discretion of the trial judge. If the sentence is within
the statutory limit, appellate courts will not interfere unless
clearly cruel and unusual.” A sentence is clearly cruel and
unusual only if the sentence is “so ‘excessive and unusual,
and so disproportionate to the offense committed, as to
shock public sentiment and violate the judgment of

13
The protections of the Eighth Amendment are made applicable to the states through
the Fourteenth Amendment. State v. Ninham, 2011 WI 33, ¶45, 333 Wis. 2d 335, 797 N.W.2d
451.

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reasonable people concerning what is right and proper
under the circumstances.’”

State v. Ninham, 2011 WI 33, ¶85, 333 Wis. 2d 335, 797 N.W.2d 451 (alteration
in original; citations omitted). “A sentence well within the limits of the maximum
sentence is not so disproportionate to the offense committed as to shock the public
sentiment and violate the judgment of reasonable people concerning what is right
and proper under the circumstances.” State v. Berggren, 2009 WI App 82, ¶47,
320 Wis. 2d 209, 769 N.W.2d 110 (citation omitted). We independently review
whether Metzner’s sentence is cruel and unusual punishment. See Ninham, 333
Wis. 2d 335, ¶44.

¶39 Here, when we compare Metzner’s sentence to the maximum that
the circuit court could have imposed, we conclude that Metzner’s sentence was not
cruel and unusual. Metzner’s sentence of seventeen years’ initial confinement and
seventeen years’ extended supervision was well below both the aggregate
maximum penalties for the charges that he pled to as well as the over 140 years he
was facing prior to the plea agreement.

¶40 To the extent that Metzner means to argue that his sentence,
considering his circumstances at SCDC, should “shock public sentiment and
violate the judgment of reasonable people,” we disagree. See id., ¶85 (citation
omitted). Metzner claims that “a sentence of 17 years under the facts of this case,
with virtually no regard for how his mental health problems interfaced with the
charges for which he was being sentenced, truly offends society’s standards of
decency.” See id., ¶46. Metzner, however, fails to cite any legal authority in
support of his position, aside from these conclusory statements.

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¶41 We recognize that, based on the record, Metzner clearly has some
mental health concerns, and we acknowledge that the circumstances of this case,
wherein he continued to collect charges while in isolation at SCDC, is symbolic of
the inherent problems of mental health in the criminal justice system. But we
disagree that there was “virtually no regard for how his mental health problems
interfaced with the charges.” At sentencing, trial counsel focused on Metzner’s
mental health and time in isolation. The circuit court also touched on this, but
acknowledged that the proper sentencing considerations, see State v. Gallion,
2004 WI 42, ¶44, 270 Wis. 2d 535, 678 N.W.2d 197, weighed in favor of “some
pretty serious periods of incarceration.” During the period from May 2015 to
February 2016, Metzner amassed fifty-three charges and beat a correctional
sergeant. He admitted to the PSI writer that he committed these offenses “because
of the way he was treated” and that “he [was] not remorseful for his actions.”14
Thus, we conclude that his sentence was well within the limits of the maximum
sentence and not so disproportionate to shock public sentiment and that Metzner
has failed to establish an Eighth Amendment violation.

By the Court.—Order affirmed.

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

14
Metzner did state to the PSI writer that he was “remorseful” for “assaulting” the
sergeant, but the sergeant also “explained that [Metzner] has made unnecessary comments to him
since the incident.”

25