Jama v. Gonzalez

395 Wis.2d 655

954 N.W.2d 1

2021 WI App 3

Jama I. JAMA, Plaintiff-Appellant,

v.Jason C. GONZALEZ and Wisconsin Lawyers Mutual Insurance Company, Defendants-Respondents.^†

Appeal No. 2019AP629

Court of Appeals of Wisconsin.

Submitted on Briefs: September 6, 2019

Opinion Filed: December 10, 2020

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of David J. Lang and Kevin G. Raasch of Judge Lang & Katers, LLC, Wauwatosa.

On behalf of the defendants-respondents, the cause was submitted on the brief of Peyton B. Engel, of Hurley Burish S.C., Madison.

Before Blanchard, Kloppenburg and Nashold, JJ.

KLOPPENBURG, J.

¶1 This appeal presents the issue of whether a former criminal defendant may, as a plaintiff, sue his or her former criminal defense attorney for legal malpractice when that plaintiff alleges that he or she can show actual innocence as to some, but not all , of the criminal charges in the underlying criminal case, and the civil complaint alleges that the former defense attorney provided negligent representation only as to the charges as to which the criminal malpractice plaintiff alleges that he or she can show actual innocence. This issue involves what we refer to as criminal malpractice plaintiffs’ claims of "split innocence," an issue that, as we will explain, has not yet been specifically addressed by controlling case law.¹

¶2 On appeal, Jama argues that Wisconsin case law requires that he be able to prove his innocence only for the specific criminal charges as to which he alleges his former criminal attorney performed negligently. Based on our review of that case law, we agree and, therefore, we reverse and remand for further proceedings.

BACKGROUND

¶3 Jama I. Jama, the criminal malpractice plaintiff in this case, filed this legal malpractice action. ²

We first summarize the allegations in his civil complaint and then the proceedings that followed his filing of that complaint.

¶4 After Jama was criminally charged with sexual assault, burglary, and theft, he hired attorney Jason C. Gonzalez as his defense counsel. Jama told Gonzalez that he had committed the theft as charged in the criminal complaint, but that he had not committed the other crimes charged, including the two sexual assault charges. Jama asserted his innocence as to the sexual assault charges at that time, and has continued to do so since then.

¶5 The civil complaint further alleges that, during the criminal jury trial, Gonzalez made numerous errors, including not meeting with Jama until the third day of trial after both sides rested, and not asking Jama details about the case until after the trial was completed, when sentencing was impending.

¶6 The jury found Jama guilty of four felonies (second-degree sexual assault, third-degree sexual assault, and two charges of burglary) and one misdemeanor (theft).³

¶7 While serving time related to his sexual assault convictions, Jama, through new counsel, filed a postconviction motion for a new trial on the basis of ineffective assistance of counsel by Gonzalez in connection with the trial. After a Machner hearing,⁴ the circuit court vacated all convictions based on Gonzalez's ineffective assistance and ordered a new trial. This was based on findings by the court that:

[Jama] had no one to advocate for his version of events as [Gonzalez] intentionally did not speak with him, intentionally did not investigate the facts in [Jama's] possession and intentionally did not incorporate [Jama's] version into the defense theory ... [Gonzalez] chose to make up "facts" which had no nexus to the facts known by [Jama], which had little to no support in the evidence, and which were internally conflicting.

¶8 The State subsequently moved to dismiss all of the original charges against Jama except the misdemeanor theft charge, and issued a new charge of misdemeanor resisting or obstructing an officer. Jama, represented by his same postconviction counsel, pleaded guilty to both theft and resisting or obstructing. For these two convictions, the circuit court sentenced Jama to nine months in jail, "deeming time served."⁵

¶9 The complaint further alleges that, as a result of Gonzalez's negligent representation at trial, Jama suffered damages including the loss of his "civil liberties and freedoms." Specifically, before the circuit court granted the postconviction motions and Jama entered the misdemeanor pleas, he served over two and one-half years in prison, and was ordered to complete an Alcohol and Other Drug Abuse assessment, maintain absolute sobriety, not enter an establishment whose purpose is the sale of alcohol, report for the sex offender registry list for life, and not appear on State Street in Madison for six years.

¶10 We now move from the allegations in Jama's complaint to summarize what took place after Jama filed this action against Gonzalez. Gonzalez moved to dismiss the complaint on the basis that Jama's allegations, even if true, do not entitle Jama to relief. The gravamen of Gonzalez's argument was that, because Jama pleaded guilty to the theft charge after his convictions were vacated and a new trial was ordered, Jama could not prove that he was innocent of all charges, as required to pursue this civil action under the "actual innocence" rule stated in then controlling case law, specifically Hicks v. Nunnery , 2002 WI App 87, 253 Wis. 2d 721, 643 N.W.2d 809, and Tallmadge v. Boyle , 2007 WI App 47, 300 Wis. 2d 510, 730 N.W.2d 173.

¶11 In response, Jama asserted that this malpractice action addresses only Gonzalez's negligent representation of Jama on the sexual assault charges, that Jama suffered damages from the sexual assault convictions, and that Jama is able to prove, and has always maintained, his innocence of the sexual assault charges. Jama's position was that this action alleges negligence in connection with the sexual assault convictions only and does not allege negligence in connection with the misdemeanor theft charge to which he pleaded guilty.

¶12 The circuit court granted Gonzalez's motion to dismiss, stating that, under Hicks and Tallmadge , Jama has to provide "proof of innocence of all charges" that were charged in the underlying criminal case. The court ruled, "because Mr. Jama pled guilty to the theft charge, even though he ... has always claimed that he was innocent of the sexual assault charges ... [Gonzalez has] prevailed on [his] motion to dismiss."

¶13 Jama appealed. After the parties filed their appellate briefs, the Wisconsin Supreme Court accepted review in Skindzelewski v. Smith , 2020 WI 57, 392 Wis. 2d 117, 944 N.W.2d 575, in which the criminal malpractice plaintiff sought an exception to the "actual innocence" rule adopted by this court in Hicks to allow him to pursue his legal malpractice claim premised on former defense counsel's failure to raise a valid statute of limitations defense. Skindzelewski , 392 Wis. 2d 117, ¶2, 944 N.W.2d 575. After the supreme court issued its decision in Skindzelewski , in which it for the first time addressed and relied on the actual innocence rule adopted in Hicks to decline to recognize the exception to that rule as requested by Skindzelewski, id. at ¶¶2, 21-23, this court certified the split innocence issue raised in this case to the supreme court for its review and determination.

The supreme court has now denied the certification request. Accordingly, we now proceed to address the split innocence issue raised in this case.⁶

DISCUSSION

I. Standard of Review and Legal Principles

¶14 "A motion to dismiss for failure to state a claim tests the legal sufficiency of the complaint." Data Key Partners v. Permira Advisers LLC , 2014 WI 86, ¶19, 356 Wis. 2d 665, 849 N.W.2d 693 (quoted source omitted). "Upon a motion to dismiss, we accept as true all facts well-pleaded in the complaint and the reasonable inferences therefrom." Id. (citing Kaloti Enters., Inc. v. Kellogg Sales Co. , 2005 WI 111, ¶11, 283 Wis. 2d 555, 699 N.W.2d 205 ). Whether a complaint adequately pleads a cause of action is a question of law we review de novo. Hermann v. Town of Delavan , 215 Wis. 2d 370, 378, 572 N.W.2d 855 (1998).

¶15 In Wisconsin, all plaintiffs alleging legal malpractice must prove four elements in order to prevail: "(1) an attorney-client relationship existed; (2) the attorney's actions were negligent; (3) the attorney's negligent actions caused the client's injury; and (4) the client suffered an actual injury." Skindzelewski , 392 Wis. 2d 117, ¶9, 944 N.W.2d 575. Citing Hicks , the court in Skindzelewski stated that, in a criminal malpractice case, the plaintiff "must additionally prove that he [or she] was actually innocent of the criminal charge as a component of the causation element." Id . See also Tallmadge , 300 Wis. 2d 510, ¶¶21-22, 730 N.W.2d 173 (applying the actual innocence rule to criminal malpractice claims against postconviction counsel).

II. Analysis

¶16 The parties here do not dispute that, in Wisconsin, the actual innocence rule applies to all criminal malpractice plaintiffs. However, as stated above, the parties dispute how to resolve the specific split innocence issue under the reasoning and language of controlling Wisconsin case law. Gonzalez asserts that the case law supports his argument that Jama, as the criminal malpractice plaintiff in this case, has to prove innocence as to all charges of which Jama was convicted. Jama asserts that the case law supports his argument that it is sufficient to allege that he can prove innocence only as to those charges for which he alleges that his former defense counsel provided negligent representation, even if he cannot prove innocence on one or more other charges. As we explain, we agree with Jama.

¶17 We first discuss pertinent details of the Wisconsin Court of Appeals’ Hicks and Tallmadge decisions and the Wisconsin Supreme Court's Skindzelewski decision, explaining how public policy considerations identified in each of those opinions support adoption of the actual...