State v. Dennis J. Tims

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.
July 3, 2025
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2023AP1112-CR Cir. Ct. No. 2017CF116

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DENNIS J. TIMS,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Clark
County: NICHOLAS J. BRAZEAU, JR. and DANIEL S. DIEHN, Judges.
Affirmed.

Before Kloppenburg, P.J., Blanchard, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2023AP1112-CR

¶1 PER CURIAM. Dennis Tims, pro se, appeals a judgment of
conviction for two counts of repeated physical abuse of a child, causing bodily
harm. He also appeals the circuit court’s order denying his motion for
postconviction relief.1 We affirm.

¶2 Tims was initially charged with two counts of repeated physical
abuse of a child with a high probability of great bodily harm and two counts of
mental harm to a child. The charges were based on allegations relating to two
children in Tims’ care.

¶3 After Tims was appointed counsel, the case was resolved by plea
agreement. Tims agreed to plead no contest to two amended counts of repeated
physical abuse of a child, causing bodily harm, and the State agreed that the
mental harm counts as well as additional counts in two other cases would be
dismissed and read in at sentencing.

¶4 Prior to sentencing, while Tims was still represented by counsel, he
moved to withdraw his pleas. The circuit court denied the motion. The court
sentenced Tims to seven years of initial confinement and five years of extended
supervision on each of his two convictions, with the sentences to be served
consecutively to one another.

¶5 Tims file a pro se motion for postconviction relief, raising multiple
claims. The circuit court scheduled an evidentiary hearing, and Tims appeared
with postconviction counsel. Counsel informed the court that Tims intended to

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The Honorable Nicholas J. Brazeau, Jr., presided over the trial and entered the
judgment of conviction. The Honorable Daniel S. Diehn entered the order denying Tims’
postconviction motion.

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No. 2023AP1112-CR

narrow his claims to two claims for ineffective assistance of trial counsel. The
witnesses at the evidentiary hearing included Tims and two attorneys who had
represented him in the earlier circuit court proceedings. The court made factual
findings, rejected Tims’ claims for ineffective assistance of counsel, and denied
Tims’ postconviction motion.

¶6 Tims now appeals pro se.

¶7 As an initial matter, we note that Tims’ briefing does not comply
with this court’s briefing rules. The briefing consists largely of disjointed
assertions that raise numerous possible arguments without meaningfully
developing one or more of these arguments. For this reason alone, we could
affirm the circuit court. Although this court makes some allowances for pro se
litigants, “[w]e cannot serve as both advocate and judge” by developing arguments
for a litigant. See State ex rel. Harris v. Smith, 220 Wis. 2d 158, 164-65, 582
N.W.2d 131 (Ct. App. 1998); see also State v. Jackson, 229 Wis. 2d 328, 337, 600
N.W.2d 39 (Ct. App. 1999) (“A party must do more than simply toss a bunch of
concepts into the air with the hope that either the [circuit] court or the opposing
party will arrange them into viable and fact-supported legal theories.”).

¶8 However, we will proceed instead to address what appear to be
Tims’ main intended arguments. For the reasons we explain in the rest of this
opinion, none of these arguments persuades us.

¶9 We begin by addressing arguments relating to whether Tims should
be permitted to withdraw his pleas based on constitutionally ineffective assistance
of trial counsel. These arguments correspond to the claims that the circuit court
rejected in the postconviction proceedings.

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No. 2023AP1112-CR

¶10 To show ineffective assistance of counsel, a defendant must
establish both that counsel’s performance was deficient and that the deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668,
687 (1984). To establish deficient performance, the defendant must show that
“counsel’s representation fell below an objective standard of reasonableness.” Id.
at 687-88. 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. at 694.

¶11 “[W]hether a person was deprived of the constitutional right to the
effective assistance of counsel presents a mixed question of law and fact.” State v.
Mayo, 2007 WI 78, ¶32, 301 Wis. 2d 642, 734 N.W.2d 115. “The circuit court’s
findings of fact … will be upheld unless they are clearly erroneous.” Id. (quoted
source omitted). “Whether counsel’s performance was deficient and prejudicial to
[the] defense is a question of law that we review de novo.” Id.

¶12 Here, Tims makes two claims for ineffective assistance of counsel,
one relating to a child protective services (CPS) report and the other relating to
digital discovery. We address each claim in turn.

¶13 Tims first argues that counsel was ineffective when counsel moved
for plea withdrawal prior to sentencing because counsel failed to use the CPS
report to support the motion.2 According to Tims, the CPS report included new
information that was not known to the defense at the time of his pleas, and the

2
Tims also appears to make a closely related, secondary argument that successor counsel
was ineffective by not filing a new plea withdrawal motion using the CPS report. Our analysis in
the text applies equally to this secondary argument.

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No. 2023AP1112-CR

report supported a claim of innocence because it showed that investigating officers
did not observe injuries to confirm the abuse allegations.

¶14 The State counters that Tims’ ineffective assistance claim based on
the CPS report is defeated by the circuit court’s postconviction factual findings.
We agree with the State.

¶15 The circuit court found that the information in the CPS report was
not new information to the defense. Rather, the CPS report was derived from
police reports that had already been provided to the defense. The court’s findings
also show that the court rejected Tims’ characterization of the report as supporting
a claim of innocence.

¶16 Tims does not show that these finding by the circuit court are clearly
erroneous. Moreover, the record before us includes the CPS report, and we agree
with the court that the report is not exculpatory. The CPS report indicates that the
investigating officers observed injuries to the child victims that were consistent
with some of the specific abuse allegations against Tims. The officers observed
injuries included welts on the victims’ backs allegedly resulting from blows
delivered by Tims with a metal broomstick. Although the CPS report indicates
that the officers did not observe additional injuries that could have confirmed
additional abuse allegations, this does not establish that these additional
allegations were untrue. Further, the CPS report includes other inculpatory details,
including allegations that Tims had been abusing the victims for several years, “as
long as the kids [could] remember.”

¶17 Based on the circuit court’s findings relating to the CPS report, we
conclude that Tims has not shown that trial counsel performed deficiently by
failing to use the CPS report to support a motion for plea withdrawal. Based on

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No. 2023AP1112-CR

the same findings, we also conclude that Tims has not shown that he was
prejudiced by counsel’s performance in this respect.

¶18 Tims next argues that trial counsel was ineffective by not providing
Tims with digital discovery, including in particular police body camera video
recordings. Tims maintains that the video recordings show that he was falsely
accused because one or more family members can be heard on the recording
admitting that they were setting him up. According to Tims, if he had personally
viewed these video recordings prior to entering his pleas, he would not have
accepted the State’s plea offer and would have taken his case to trial.

¶19 The State counters that Tims’ ineffective assistance claim relating to
the video recordings, just like his claim relating to the CPS report, is defeated by
the circuit court’s factual findings based on the evidence at the postconviction
hearing. We agree with the State.

¶20 Tims’ attorneys who testified in the postconviction proceedings said
that they offered to show Tims the digital discovery and that Tims declined the
offer or said that he did not want to see it. Although Tims testified differently, the
circuit court’s factual findings show that the court did not credit Tims’ testimony
on this point. When, as here, there is conflicting testimony, credibility findings
are left to the circuit court as part of the factfinding process. Cogswell v.
Robertshaw Controls Co., 87 Wis. 2d 243, 250, 274 N.W.2d 647 (1979). Based
on the court’s findings here, Tims cannot show that counsel performed deficiently
by failing to provide Tims with the digital discovery.

¶21 Moreover, as the State points out, the record before us does not
include the video recordings in question, and Tims, as the appellant, is responsible
for ensuring a complete record. See Fiumefreddo v. McLean, 174 Wis. 2d 10, 26,

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No. 2023AP1112-CR

496 N.W.2d 226 (Ct. App. 1993). “[W]hen an appellate record is incomplete in
connection with an issue raised by the appellant, we must assume that the missing
material supports the [circuit] court’s ruling.” Id. at 27. Here, this means that we
must assume that the content of the video recordings supports the court’s
conclusion that Tims has not shown ineffective assistance of counsel.

¶22 Having addressed and rejected Tims’ claims for ineffective
assistance of counsel, we turn to other arguments that Tims appears to be making.
The State identifies six such arguments, and it contends that each of these
arguments should be rejected on one or more grounds. We agree. We address
each of the arguments in the paragraphs that follow, and for each argument we
provide one or more reasons for rejecting the argument. This is not to say that
these are the only reasons that would support rejection of the arguments.

¶23 Tims’ first argument is that he should be permitted to withdraw his
pleas because he is innocent and was set up by his family. We reject this
argument because Tims does not point to evidence showing that he is innocent or
to authority for the proposition that the mere assertion of innocence is grounds for
plea withdrawal. A no-contest plea generally “constitutes a waiver of
nonjurisdictional defects and defenses.” State v. Bangert, 131 Wis. 2d 246, 293,
389 N.W.2d 12 (1986).

¶24 Tims’ second argument is that the circuit court failed to ascertain a
factual basis for his pleas. This argument lacks merit. The court may fulfill its
duty to establish a factual basis through a variety of methods. State v. Black, 2001
WI 31, ¶¶11-14, 242 Wis. 2d 126, 624 N.W.2d 363. Here, the court fulfilled this
duty by confirming that the State was relying on the criminal complaint and prior

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No. 2023AP1112-CR

hearings for a factual basis and by then eliciting from Tims personally that Tims
was stipulating that there was a factual basis for his pleas.

¶25 Tims’ third argument is that the State committed a Brady3 violation
by withholding the CPS report. We reject this argument because, as we now
explain, even if the State failed to timely disclose the CPS report, Tims has not
satisfied the test for a Brady violation.

¶26 To establish a Brady violation, the defendant must satisfy a three-
prong test. State v. Wayerski, 2019 WI 11, ¶35, 385 Wis. 2d 344, 922 N.W.2d
468. First, “the evidence at issue must be favorable to the accused, either because
it is exculpatory or impeaching.” Id. Second, “the evidence must have been
suppressed by the State.” Id. Third, “the evidence must be material.” Id.
Evidence is not “material” for Brady purposes unless there is a reasonable
probability that timely disclosure of the evidence would have produced a different
result. Id., ¶36.

¶27 Here, at a minimum, Tims has not satisfied the first and third prongs
of this test. He has not satisfied the first prong because he has not shown that the
CPS report is exculpatory or impeaching. He has not satisfied the third prong
because he has not shown that there is a reasonable probability that he would have
pled differently had he known of the CPS report at the time of his pleas. As noted
above, the circuit court found that the information in the CPS report was not new
and was derived from police reports that had already been provided to the defense.

3
Brady v. Maryland, 373 U.S. 83 (1963).

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No. 2023AP1112-CR

Based on this finding, it is not plausible to argue that there was a reasonable
probability that Tims would have pled differently had he known of the CPS report.

¶28 Tims’ fourth argument is that that the circuit court erroneously
exercised its discretion at sentencing by relying on improper factors and inaccurate
information. This argument is wholly undeveloped and we reject it on that basis.
See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992)
(explaining that the court of appeals may decline to review issues that are
inadequately briefed).

¶29 Tims’ fifth argument appears to be that the circuit court violated his
First Amendment rights by prohibiting him from having contact with his
biological sons. This argument, like Tims’ fourth argument, is wholly
undeveloped, and we reject Tims’ fifth argument on this same basis. See id.

¶30 Tims’ sixth and final argument is that two circuit court judges who
presided in his case were biased against him. According to the State, Tims’
assertions of bias are forfeited or, alternatively, outside the scope of this appeal for
jurisdictional reasons. Regardless, we conclude that Tims’ appellate arguments do
not establish a viable claim for judicial bias because “[t]here is a presumption that
a judge has acted fairly, impartially, and without prejudice,” State v. Herrmann,
2015 WI 84, ¶24, 364 Wis. 2d 336, 867 N.W.2d 772, and Tims’ arguments are
insufficient to rebut that presumption.

¶31 In sum, for all of the reasons discussed above, we affirm the
judgment of conviction and the circuit court’s order denying postconviction relief.

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No. 2023AP1112-CR

By the Court.—Judgment and order affirmed.

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

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