State v. Silva

SCHUDSON, J.

¶ 39. (concurring/dissenting). I concur with the majority in many respects. On one issue, however — whether Silva was denied his right to a jury trial — I depart from part of the majority's analysis; and on another — whether defense counsel's closing argument constituted ineffective assistance — I disagree with the majority and conclude that a new trial is required.

A. Jury Trial

¶ 40. The majority correctly concedes that counsel's performance was deficient by virtue of his ignorance of Wallerman. Had Silva waived a jury trial based on counsel's erroneous advice, grounded in ignorance of Wallerman, then his jury waiver would have been invalid and his right to a jury trial would have to be restored. No further analysis would be needed. Prejudice would be clear because, under such circumstances, it is not to be measured by the reasonable probability of a different verdict, but rather, by the reasonable probability of a different result of the jury-waiver proceeding. See State v. Smith, 207 Wis. 2d 258, ¶ 276, 558 N.W.2d 379 (1997) ("The Strickland test is not an outcome-determinative test. In decisions following Strickland, the Supreme Court has reaffirmed that the touchstone of the prejudice component is 'whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.' " (quoting Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (emphasis added))).

¶ 41. In Smith, the supreme court elaborated that "[i]n certain instances, prejudice is presumed once *934deficient performance has been proven," id. at 278, and recounted various circumstances in which that is so, id. at 278-79. A review of the supreme court's eight examples reveals several proceedings that certainly would be deemed far more consequential than a jury-waiver hearing. See id.; see also State v. Stallings, 658 N.W.2d 106, 112 (Iowa 2003) (defense counsel’s failure to ensure defendant's jury waiver was valid constituted a structural defect; thus, prejudice was presumed for purposes of establishing ineffective assistance of counsel).

¶ 42. Here, to the extent that it focuses broadly on the reversal of Wallerman and the likely outcome of the trial, rather than narrowly on the result of the jury waiver proceeding, the majority misses the mark. Obviously, no one knows what the verdict would have been following a jury trial.1 But the result of the jury-waiver proceeding is known. Thus, if Silva's jury waiver was uninformed, due to faulty advice based on ignorance of Wallerman, his right to a new trial, with a jury if he so desired, would be clear. And contrary to what the majority implies, no subsequent development, including *935the overruling of Wallerman, would alter the immutable fact that Silva was denied his right to a jury trial.2

¶ 43. Here, however, the majority correctly recognizes that the postconviction court's finding — that Silva decided to waive his right to a jury trial for reasons unrelated to counsel's ignorance of Wallerman — is not clearly erroneous. Indeed, that finding is substantially supported by defense counsel's testimony at the Mach-ner hearing. For that reason alone, counsel's deficient performance was not prejudicial; it did not deny Silva his right to a jury trial.

B. Closing Argument

¶ 44. Last year, with words that not only would seem to anticipate the instant case but also would refute the majority's rather desperate rationalization for defense counsel's closing argument, we declared:

[A] defense attorney may not admit his client's guilt, which is contrary to his client's plea of not guilty, unless the defendant unequivocally understands and consents *936to the admission. See Wiley v. Sowders, 647 F.2d 642, 649 (6th Cir. 1981). Logically, we also hold that an attorney may not stipulate to facts which amount to the "functional equivalent" of a guilty plea without the defendant's consent. See id.; see also People v. Carter, 354 N.E.2d 482, 485 (Ill. App. Ct. 1976) (stating that counsel's closing argument that was tantamount to an admission of guilt cannot be overlooked as mere errors in judgment or trial strategy).

State v. Gordon, 2002 WI App 53, ¶ 27, 250 Wis. 2d 702, 641 N.W2d 183, rev'd, 2003 WI 69, 262 Wis. 2d 380, 663 N.W.2d 765.

¶ 45. Until last month, our decision in Gordon should have controlled. (After all, in the instant case, defense counsel conceded, "I suppose technically this is a case of first-degree sexual assault." The rest of defense counsel's meager closing argument offered nothing to suggest otherwise.) But the supreme court reversed. See id., 262 Wis. 2d 380, ¶ 5. In doing so, however, the supreme court all the more clearly established why we must reverse here.

¶ 46. In Gordon, the supreme court held:

The concession [of the defendant's guilt] by counsel was not the functional equivalent of a guilty plea under the circumstances of this case, where it came in closing argument, on one count in a multiple-count case, after full adversarial testing of the State's case and after the defendant had admitted on the witness stand the facts constituting the offense.

Id., ¶ 5. The supreme court repeatedly emphasized that its conclusion was inextricably connected to two critical circumstances: (1) counsel conceded guilt on only one count in a three-count trial, while "argu[ing] vigorously for acquittal on the more serious felony and misdemeanor counts," id., ¶ 26; and (2) the defendant, *937testifying at trial, admitted the conduct constituting the conceded count and, therefore, "Gordon's attorney did not concede anything that Gordon had not admitted as a factual matter on the witness stand," id.

¶ 47. Citing numerous cases, and noting their significantly distinguishing features, the supreme court further emphasized the importance of these two circumstances. Id., ¶¶ 27-30. Any fair reading of the supreme court's decision leads to the inescapable conclusion that, but for either or both of those two circumstances, reversal is required.

¶ 48. Silva faced only one charge. At trial, Silva never testified; he never admitted the conduct constituting the crime. Nevertheless, in closing argument, defense counsel conceded Silva's guilt. The supreme court's decision in Gordon controls; Silva's conviction must be reversed.

C. The Ironic Link

¶ 49. One last link joins these two issues. And given the majority's treatment of the jury-waiver issue, the irony is interesting. Counsel's closing argument, at best, could have called upon a jury to nullify — i.e., to find Silva not guilty despite the uncontroverted evidence of guilt. But, unquestionably, in a bench trial, counsel's concession that "technically this is a case of first-degree sexual assault" called for a guilty verdict.3

*938¶ 50. The United States Supreme Court has declared:

[T]he adversarial process protected by the Sixth Amendment requires that the accused have "counsel acting in the role of an advocate." The right to the effective assistance of counsel is thus the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted — even if defense counsel may have made demonstrable errors— the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated.

United States v. Cronic, 466 U.S. 648, 656-57 (citations and footnotes omitted; emphasis added).

¶ 51. Here, where was the advocacy? Where was the "meaningful adversarial testing"? Defense counsel advised Silva to waive his right to a jury trial. He made no opening statement, called no witnesses, and conceded Silva's guilt in closing argument. While the first two factors are not determinative, they bring added understanding of the context in which the closing concession came. Under Cronic and Gordon, the closing argument is dispositive; conceding guilt, it was both deficient and prejudicial, thus requiring a new trial.

D. Conclusion

¶ 52. The injustice in this case — for both Silva and the victim of his alleged assault — now prolonged by the need for a new trial, is significant. Still, Silva's right to a jury trial with the effective assistance of counsel *939must be preserved and, therefore, while sharing the majority's view of many matters in this case, I must, in part, respectfully dissent.

Indeed, that very uncertainty all the more supports Silva's position. The supreme court explained:

Part of the rationale behind presuming prejudice is the difficulty in measuring the harm caused by the error or the ineffective assistance. In [State v.] Behnke, for instance, [in which the supreme court "assumed prejudice" resulting from defense counsel's absence from the verdict return, and the resulting failure to poll the jury], we declined to indulge in calculation or speculation about the prejudice arising from the absence of counsel and the failure to poll the jury.

State v. Smith, 207 Wis. 2d 259, 280, 558 N.W2d 379 (1997) (citations omitted).

The majority's reliance on Lockhart v. Fretwell, 506 U.S. 364 (1993) is misplaced. Lockhart has not displaced Strickland v. Washington, 466 U.S. 668 (1984); it moves beyond the Strickland standards only in those circumstances where "[u]n-reliability or unfairness does not result [because] the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right." Lockhart, 506 U.S. at 372. Here, however, we have the substantive right to a jury trial and the procedural right to a fully informed jury-waiver proceeding. See Jones v. Barnes, 463 U.S. 745, 751 (1983) ("It is ... recognized that the accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to ... waive a jury ... ."); see also State v. Gordon, 2002 WI App 53, ¶ 27, 250 Wis. 2d 702, 725, 641 N.W2d 183 (quoting Jones, 463 U.S. at 751.).

And, we must keep in mind, counsel's argument left the trial court no option — no lesser-included offense was at issue. See State v. Kramar, 149 Wis. 2d 767, 792, 440 N.W2d 317 (1989) (option of finding defendant guilty of lesser-included offense exists "only when there are reasonable grounds in the evidence both for acquittal on the greater charge and conviction on the lesser offense").