State v. Arthur G. Simmons, Jr.

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.
May 16, 2023
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. 2022AP257-CR Cir. Ct. No. 2018CF1029

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ARTHUR G. SIMMONS, JR.,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Eau Claire County: SARAH MAE HARLESS, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, 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. Arthur G. Simmons, Jr., appeals from a judgment
convicting him, following a jury trial, of trafficking a child, as a party to the crime
No. 2022AP257-CR

and as a repeater, and from an order denying his postconviction motion. At trial,
Simmons represented himself, but the circuit court appointed standby counsel.
Simmons now claims that he is entitled to a new trial based on standby counsel’s
constitutionally ineffective assistance and the State’s discovery violations. For the
reasons that follow, we conclude that Simmons has waived these claims, and he is
therefore not entitled to the relief he seeks. We affirm.

BACKGROUND

¶2 The State initially charged Simmons in a criminal complaint with
first-degree sexual assault of a child (sexual contact with a child under age
thirteen). The charges were later amended by Information to repeated sexual
assault of a child, as a repeater, and trafficking of a child, as a party to the crime
and as a repeater. The charges were based on a report that Melinda1 had been
allowing adult men to sexually assault her children, Mila and Joshua, and
photograph them naked in exchange for money, drugs, and alcohol. According to
the complaint, the abuse began when the children were nine and six years old,
respectively, and lasted for approximately nine years.

¶3 Law enforcement’s investigation of the allegations revealed that
Simmons—identified through the use of his nickname, “Junior,” and a photograph
on his Facebook profile—was one of the men who assaulted Mila. Mila stated
that Simmons began having vaginal intercourse with her when she was nine years
old. During an interview with law enforcement, Mila reported that Simmons had

1
Pursuant to the policy underlying WIS. STAT. RULE 809.86(4) (2021-22), we use
pseudonyms when referring to the victims and their mother in this case. All references to the
Wisconsin Statutes are to the 2021-22 version unless otherwise noted.

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No. 2022AP257-CR

an “indent” on the “back of his thigh near to the buttocks.” Given Mila’s
description, law enforcement executed a search warrant for Simmons’ body and
took photographs, which showed “pockmarks or types of scars” that were “exactly
where [Mila] said they would be.”

¶4 Early in the proceedings, Simmons stated his desire to represent
himself. At the preliminary hearing, he asserted that he did not want to be
represented by appointed counsel and that he was “prepared … to do this myself.”
At a later hearing, the circuit court conducted a full colloquy with Simmons and
confirmed his knowing, intelligent, and voluntary waiver of his right to counsel.
At that hearing, the court also stated its intent to appoint standby counsel “because
of the serious nature of these charges.” The court informed Simmons that standby
counsel would be available to answer Simmons’ questions, “but you would not
have to or in any way be obligated to use them.” Once standby counsel had been
appointed, the court explained: “[J]ust to briefly let you know, standby counsel is
for the convenience of the court. She is there and may provide assistance for when
you have questions. It is not the same as having full representation, which you did
previously waive. Do you understand that?” Simmons affirmed that he
understood.

¶5 Pretrial, the State provided Simmons with discovery in the case,
which was admittedly “voluminous.” Simmons informed the circuit court that he
had received discovery, but he was “not sure if it’s, like, all there.” The State
asserted that it had provided Simmons with a full copy. Simmons expressed his
frustration with the discovery, noting that “none of it[’]s in order.” The court
responded, “I understand that discovery can be large and cumbersome. You have
a right to discovery. You do not have a right to have it put in any specific order or
organized for you by the State.” The court advised him to consult with standby

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No. 2022AP257-CR

counsel regarding the discovery and follow up if he had specific concerns. At a
hearing held the day before the trial began, Simmons again asked how he would
be able to resolve his “discovery issues.” The court offered to postpone the trial to
resolve those issues, but Simmons declined the court’s offer.

¶6 On the first day of trial, Simmons expressed his intent to call
Melinda as a witness. Melinda’s attorney was present, and he informed the circuit
court that Melinda would “be invoking her right to remain silent and her right not
to incriminate herself to every single question.” Her attorney also stated that he
did not believe that Melinda had been subpoenaed for trial. According to
Simmons, Melinda’s subpoena was “brought back to me because she wasn’t here,”
meaning that she was not being held at the same jail facility as Simmons. Because
Melinda was not properly served with a subpoena, and given that she likely would
assert her Fifth Amendment right not to testify, the court did not order that she be
transported for trial. Simmons also stated that he planned to call Joshua, but after
a discussion, it came to light that Joshua was also not properly subpoenaed.

¶7 During the three-day trial, Mila, among other witnesses, testified for
the State. Mila recounted for the jury the details of her history with Simmons and
identified him as one of the men who assaulted her beginning when she was nine
years old. According to Mila, her mother abused, traded, exchanged, and sold her
and her younger brother Joshua for drugs or money. On cross-examination,
Simmons questioned Mila about the marks that she had alleged were on his legs.
Mila could not recall exactly where the marks were located, noting that she “was
young” and the assaults occurred “like 12 years ago.”

¶8 After the State rested, Simmons presented his case. Simmons called
several witnesses, and he testified in his own defense. According to Simmons, he

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No. 2022AP257-CR

had a casual sexual relationship with Melinda, but he did not have sexual
intercourse with Mila or give Melinda drugs or money for that purpose. At one
point during his presentation of evidence, Simmons informed the circuit court,
outside the presence of the jury, that he planned to call Mila again to ask her
whether she told someone that she lost her virginity in 2014. The State objected.
The court took a recess, and the State discussed the issue with Mila. The State
then informed the court that Mila did not “recall making that statement” and that
her perception was that “everything that happened when she was a child wasn’t
consensual and she doesn’t believe she’s lost her virginity to a man since
becoming an adult.” In response, Simmons interjected, “What about Bobby
Prosser …? Bobby Prosser, that’s another guy that she accused.”2 The court ruled
that Simmons would not be permitted to ask Mila about her alleged statement
pertaining to when she lost her virginity.

¶9 The jury found Simmons not guilty of repeated sexual assault of a
child but guilty of trafficking a child as a party to the crime. The circuit court
sentenced Simmons to twenty-five years’ initial confinement followed by ten
years’ extended supervision.

¶10 With the assistance of postconviction counsel, Simmons moved for a
new trial based on several theories. As relevant to this appeal, he claimed that he
received ineffective assistance of standby counsel and that the State failed to
comply with its discovery obligations in violation of Brady v. Maryland, 373 U.S.
83 (1963), and WIS. STAT. § 971.23(1)(h). Simmons alleged that standby counsel

2
In its response brief, the State noted that “Bobby Prosser” is also referred to as “Bobby
Poser” in the record. The State and Simmons both use “Poser” in their briefing before this court,
so we will as well.

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No. 2022AP257-CR

rendered ineffective assistance by failing to properly subpoena Joshua and
Melinda to testify at trial. As to the discovery violations, Simmons claimed that
the State failed to provide him with the search warrant application, which
prevented him from attacking the validity of the photographs of his legs.
Simmons also alleged that the State did not provide the police report pertaining to
Mila’s sexual assault accusation against Poser, which he alleged he could have
used to impeach Mila.

¶11 The circuit court held an evidentiary hearing on the motion. Standby
counsel, Simmons, and a prosecutor at Simmons’ trial each testified. After
hearing arguments from the parties, the court denied Simmons’ postconviction
motion. As to Simmons’ claim of ineffective assistance of standby counsel, the
court explained that Simmons was aware of standby counsel’s role and
responsibilities and “that she wasn’t taking on the full scope of representation.”
On his discovery violation claim, the court observed that it had taken steps to
assist Simmons prior to trial with the discovery issues, including offering him a
continuance. Regardless, based on the testimony at the hearing, the court did not
find that “there was any denial of [a] right to appropriate discovery.” Simmons
appeals.3

3
We note that, on appeal, Simmons filed what he identifies as a “supplemental appellate
brief.” Simmons, however, is represented by postconviction counsel. The Wisconsin
Constitution gives a litigant the right to prosecute or defend a lawsuit in state court “either in his
own proper person or by an attorney of the suitor’s choice.” WIS. CONST. art. I, § 21(2). As a
result, we entered an order stating that we would not accept Simmons’ supplemental appellate
brief.

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No. 2022AP257-CR

DISCUSSION

¶12 On appeal, Simmons repeats his claims of ineffective assistance of
standby counsel and discovery violations. We conclude that Simmons waived
both these claims. Accordingly, he is not entitled to a new trial on either of these
bases.

¶13 We first address Simmons’ argument that standby counsel provided
constitutionally ineffective assistance. A criminal defendant has the right to
conduct his or her own defense under both the Sixth Amendment of the United
States Constitution and article I, § 7 of the Wisconsin Constitution. State v.
Klessig, 211 Wis. 2d 194, 203, 564 N.W.2d 716 (1997). “When a defendant seeks
to proceed pro se, the circuit court must [ensure] that the defendant (1) has
knowingly, intelligently and voluntarily waived the right to counsel, and (2) is
competent to proceed pro se.” Id. If both these criteria have been met, then the
defendant’s request for self-representation must be granted. Id. at 204.
Nevertheless, “[w]hen a defendant chooses to exercise his [or her] right to
self-representation and relinquish his [or her] right to be represented by counsel,
the circuit court, acting in its discretion, has the authority to appoint an attorney to
act as standby counsel.” State v. Campbell, 2006 WI 99, ¶64, 294 Wis. 2d 100,
718 N.W.2d 649. Standby counsel, however, is “primarily an aid to the circuit
court.” Id. Thus, the scope of standby counsel’s duties is within the circuit
court’s discretion. Douglas County v. Edwards, 137 Wis. 2d 65, 81, 403 N.W.2d
438 (1987).

¶14 Simmons argues that standby counsel provided ineffective assistance
and that we should apply the well-known test for ineffective assistance claims
under Strickland v. Washington, 466 U.S. 668, 686 (1984). Simmons asserts that

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No. 2022AP257-CR

standby counsel took on the duty of filing and serving some subpoenas for him by
submitting a subpoena for Joshua to victim-witness advocates. Standby counsel
testified before the circuit court that she provided a subpoena for Joshua to a
victim-witness advocate because “[t]hat was our best guess on how to get” service
on Joshua as a named victim. On the first day of trial, however, the State reported
that Joshua had not been served because he was not a named victim in Simmons’
case, only in Melinda’s case. At that point, standby counsel informed the court
that neither she nor Simmons was informed that the victim-witness advocates were
not going to accept service for Joshua, but Simmons then admitted that the State
had informed him the night before trial that Joshua had not been served. The court
responded that “the State did provide the information that [Joshua] was not served,
and it’s on [Simmons] to get him here tomorrow.”

¶15 Joshua never appeared at trial. According to Simmons, Joshua’s
testimony would have impeached Mila. Specifically, Simmons claims that
Joshua’s testimony would have been useful to dispute the dates of Mila’s
allegations and to show that Joshua did not name Simmons as a perpetrator.

¶16 Simmons also claims that Melinda was not served. He does not,
however, specifically allege that the failure to serve Melinda was standby
counsel’s error, noting only that “[a]nother crucial witness for Simmons who was
not served was alleged coconspirator [Melinda].” The State also observes: “For
reasons that are not entirely clear in the record, [Melinda] was not served with a
subpoena prior to trial.” Simmons claims that Melinda’s testimony was important
because it would have been used to impeach Mila, but, as noted above, Melinda’s
attorney informed the circuit court that she planned to invoke her Fifth
Amendment privilege against self-incrimination.

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No. 2022AP257-CR

¶17 Whether standby counsel was ineffective or not, Simmons has no
basis to assert that his constitutional right to effective assistance of counsel was
violated as a result of standby counsel’s performance. Simmons waived his right
to counsel after a proper colloquy with the circuit court. He does not challenge
that waiver on appeal. By waiving his right to counsel, he also waived his right to
the effective assistance of counsel. See Moore v. State, 83 Wis. 2d 285, 300, 265
N.W.2d 540 (1978) (observing that a defendant has a right to represent himself or
herself or a right to be represented by counsel; he or she does not have a right to
both); see also Faretta v. California, 422 U.S. 806, 834 n.46 (1975) (“[A]
defendant who elects to represent himself [or herself] cannot thereafter complain
that the quality of his [or her] own defense amounted to a denial of ‘effective
assistance of counsel.’”). Wisconsin has not recognized a constitutional right to
standby counsel, see State v. Cummings, 199 Wis. 2d 721, 753 n.15, 754 n.17,
546 N.W.2d 406 (1996), nor are we aware of any federal constitutional right to
standby counsel, see United States v. Windsor, 981 F.2d 943, 947 (7th Cir. 1992)
(“This court knows of no constitutional right to effective assistance of standby
counsel.”). The decision to appoint standby counsel is made for the convenience
of the circuit court. See Edwards, 137 Wis. 2d at 77; Cummings, 199 Wis. 2d at
754 n.17. Therefore, without a constitutional right to standby counsel, there is no
basis for a claim that standby counsel rendered ineffective assistance.

¶18 Simmons argues, however, that “[e]ven if standby counsel is not
required to do a task, if she takes a task upon herself, she has the duty to complete
it.” Accordingly, Simmons asserts that because standby counsel “began to serve
subpoenas on Simmons’ behalf,” “[h]er failure to follow through fell below the

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No. 2022AP257-CR

performance of a reasonable attorney.” We disagree. First, Simmons does not cite
any legal support for this proposition.4 See State v. Pettit, 171 Wis. 2d 627, 646,
492 N.W.2d 633 (Ct. App. 1992). Instead, Simmons concedes that ineffective
assistance of standby counsel has not been recognized by Wisconsin courts.

¶19 Second, the record does not support Simmons’ assertion that standby
counsel took over the duty of serving subpoenas. Simmons was told at various
points during this case, by both the circuit court and standby counsel, that
Simmons “is the attorney in this case” and that he was responsible for properly
subpoenaing witnesses. To the extent standby counsel did assist Simmons with
any subpoenas, she made it clear that it was done “merely as a courtesy to” him
and that “[a]s standby counsel, it is no[t] my responsibility to track down
witnesses, speak to witnesses and/or subpoena witnesses.”5 Thus, the record
demonstrates that Simmons was responsible for proper service of the subpoenas
and that standby counsel did not assume that responsibility. In summary,
Simmons waived his right to effective assistance of counsel, and, therefore, he
cannot now claim that standby counsel was ineffective.

¶20 Next, we address Simmons’ claim that the State violated its
discovery obligations. Simmons claims discovery violations under both Brady
and WIS. STAT. § 971.23(1)(h). A defendant has a Fourteenth Amendment due

4
Simmons only cites generally to a law review article written in 2015 for this
proposition. See Jona Goldschmidt, Judging the Effectiveness of Standby Counsel: Are They
Phone Psychics? Theatrical Understudies? Or Both?, 24 S. CAL. REV. L. & SOC. JUST. 133
(2015).
5
Simmons does not advance an argument that he was not acting as his own attorney as a
result of unsolicited intrusions by standby counsel. See McKaskle v. Wiggins, 465 U.S. 168, 177
(1984) (“[T]he objectives underlying the right to proceed pro se may be undermined by
unsolicited and excessively intrusive participation by standby counsel.”).

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No. 2022AP257-CR

process right to disclosure of any favorable evidence in the State’s possession that
is “material either to guilt or to punishment,” see Brady, 373 U.S. at 87, including
disclosure of any evidence that may impeach one of the State’s witnesses, see
Giglio v. United States, 405 U.S. 150, 154-55 (1972). “A Brady violation has
three components: (1) the evidence at issue must be favorable to the accused,
either because it is exculpatory or impeaching; (2) the evidence must have been
suppressed by the State, either willfully or inadvertently; and (3) the evidence
must be material.” State v. Wayerski, 2019 WI 11, ¶35, 385 Wis. 2d 344, 922
N.W.2d 468.

¶21 We analyze an alleged discovery violation under WIS. STAT.
§ 971.23 in three steps. State v. Rice, 2008 WI App 10, ¶14, 307 Wis. 2d 335, 743
N.W.2d 517 (2007). First, we determine whether the State failed to make a
required disclosure. Id. Next, we determine whether the State had “good cause”
for the failure. Id. Finally, if we determine that the evidence should have been
excluded under the first two steps, we decide whether admission of the evidence
was harmless. Id.

¶22 Simmons identifies two items of evidence that he alleges the State
failed to provide to him with the discovery materials. The first item was a police
report about Mila’s sexual assault accusation against Poser. Simmons stated that
he was provided Department of Health Services (DHS) reports in which Mila
accused Poser of sexually assaulting her, and the DHS reports mentioned a police
report. Simmons testified that he received the DHS reports, but he did not receive
the police report until after his conviction. Simmons claims that Poser’s testimony
would have called Mila’s credibility into question. In response, one of the
prosecutors testified at the postconviction motion hearing that the police report
was, in fact, provided to Simmons in advance of trial. When asked, on

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No. 2022AP257-CR

cross-examination, about whether the report was the DHS report or a police report,
the prosecutor responded, “My recollection is that it was an Eau Claire Police
Department report, but without looking through the paper discovery right now, I
couldn’t tell you for sure.”

¶23 The second item of evidence was law enforcement’s application for
the search warrant for Simmons’ body. The State admits that the actual search
warrant application was not provided to Simmons. The prosecutor testified,
however, that “the information that made up that search warrant application [was]
included in the police reports,” which Simmons received. Simmons argues that
both of these items of evidence were material, exculpatory, and impeachment
evidence and that the State’s violations warrant either dismissal or a new trial.

¶24 As noted above, at a motion hearing the day before trial, Simmons
informed the circuit court that there were “discovery issues.” Simmons did not
specify the discovery issues to which he was referring or what specific items he
believed were missing. After a discussion with the parties, the court responded:

The options, if you think there’s a discovery violation
that impedes your ability to be prepared tomorrow, is we
can have the trial moved to a later time to allow you time to
review this [evidence] or we can discuss other potential
sanctions, for example, if there’s something in discovery
that [the State] just turned over that [it] intends to
introduce.

The court later reiterated that Simmons “would have every right at this point to
request a different trial date” to address the discovery concerns and review the
evidence. Thus, the court provided Simmons the opportunity to postpone his trial
in order to address his continuing discovery concerns.

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No. 2022AP257-CR

¶25 Under the circumstances, we conclude that regardless of whether a
discovery violation occurred, Simmons has waived6 that claim. The circuit court
provided Simmons information regarding his discovery rights and his options if he
believed that the State had violated its discovery obligations. As the court noted in
its decision on Simmons’ postconviction motion, “Simmons chose to proceed and
move forward and not postpone the trial. And acting as his own attorney, that was
his right to make such a decision.” Therefore, Simmons intentionally chose not to
postpone the trial to resolve his claimed discovery issues after being informed of
his rights. He cannot now claim a discovery violation as a basis to obtain another
opportunity to try his case. See State v. Counihan, 2020 WI 12, ¶¶26-27, 390
Wis. 2d 172, 938 N.W.2d 530; State v. Huebner, 2000 WI 59, ¶10, 235 Wis. 2d
486, 611 N.W.2d 727 (“[I]ssues must be preserved at the circuit court.”). Further,
Simmons fails to respond in his reply brief to the State’s argument that we should
deny his claim on this basis. As a result, Simmons concedes the point. See State
v. Chu, 2002 WI App 98, ¶41, 253 Wis. 2d 666, 643 N.W.2d 878 (argument raised
in response brief and not disputed in reply may be deemed admitted). Simmons
waived his claim that the State violated its discovery obligations.

By the Court.—Judgment and order affirmed.

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

6
The State suggests that this court could “apply forfeiture principles to Simmons’ claims
pertaining to discovery.” “Although cases sometimes use the words ‘forfeiture’ and ‘waiver’
interchangeably, the two words embody very different legal concepts.” State v. Ndina, 2009 WI
21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612. “[F]orfeiture is the failure to make the timely
assertion of a right” whereas “waiver is the intentional relinquishment or abandonment of a
known right.” Id. Given the facts in this case, waiver is the appropriate term.

13