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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.
November 25, 1997
A party may file with the Supreme Court a
Marilyn L. Graves                                                                           petition  to  review  an  adverse  decision  by  the
Clerk, Court of Appeals                                                                     Court of Appeals.  See § 808.10 and RULE 809.62,
of Wisconsin                                                                                STATS.
Nos.  97-1326-CR; 97-1327-CR; 97-1328-
CR; 97-1329-CR & 97-1330-CR
STATE OF WISCONSIN                                                                          IN COURT OF APPEALS
                                                                                            DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
MICHAEL G. KACHELSKI,
DEFENDANT-APPELLANT.
APPEAL  from  judgments  and  an  order  of  the  circuit  court  for
Milwaukee  County:    MICHAEL  P.  SULLIVAN  and  KITTY  K.  BRENNAN,
Judges.  Affirmed.
WEDEMEYER,  P.J.1                                                                           Michael  G.  Kachelski  appeals  from
judgments  entered  after  he  pled  guilty  to  five  counts  of  battery,  contrary  to
§ 940.19,  STATS.    He  also  appeals  from an  order  denying  his  postconviction
1  This appeal is decided by one judge pursuant to § 752.31(2), STATS.




Nos. 97-1326-CR; 97-1327-CR; 97-1328-CR; 97-1329-CR & 97-1330-CR
motion.   Kachelski claims the trial court erred in denying his motion seeking to
withdraw his guilty plea.    He argues that his plea was not entered voluntarily
because:                                                                                (1) his trial counsel had a conflict of interest related to the flat-fee
contract between counsel and the State Public Defender’s office, and (2) his trial
counsel did not provide him with effective assistance.   Because Kachelski failed to
show that a manifest injustice existed, the trial court did not err in denying his
motion to withdraw his plea, and this court affirms.
I.   BACKGROUND
Kachelski was charged with five counts of battery and one count of
bail  jumping.    The  battery charges  stemmed  from incidents  that  occurred  on
March 14,                                                                               1995,     May  7,                                                          1995,  August   6,   1995,  September   9,   1995,  and
October 1, 1995.   The victim of each battery was Kachelski’s girlfriend, Annette
Teska.   On the last three dates, Teska was pregnant.
Trial counsel was appointed on November 13, 1995.   Trial counsel
met with Kachelski on November 27, 1995, before the pre-trial.   At that time, trial
counsel discussed with Kachelski the police reports, the complaints, whether the
facts as alleged were true, possible defenses, the plea agreement offered by the
State and the effect of entering guilty pleas.   Kachelski decided to plead guilty.
During the plea, the trial court informed Kachelski that it intended to sentence him
in  accordance  with  the  State’s  recommendation,  which  included  jail  time.
Kachelski told the trial court that he understood that and that he did in fact commit
the crimes charged.
The trial court accepted the plea, dismissed the bail jumping charge
and sentenced Kachelski to twelve months in prison, with concurrent probation.
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Nos. 97-1326-CR; 97-1327-CR; 97-1328-CR; 97-1329-CR & 97-1330-CR
Following the sentencing, Kachelski moved to withdraw his plea, alleging that
trial counsel had a conflict of interest and provided ineffective assistance.
A Machner2 hearing was conducted.    The  trial court found that
Kachelski’s version of events was more credible than Kachelski’s and denied the
motion.   Kachelski now appeals.
II.   DISCUSSION
A defendant who seeks to withdraw a guilty plea after sentencing
must show that a  “manifest injustice would result if the withdrawal were not
permitted.”   State v. Booth, 142 Wis.2d 232, 235, 418 N.W.2d 20, 21 (Ct. App.
1987).   Kachelski argues that a manifest injustice will result because he did not
actually commit these crimes, but was “railroaded” into pleading guilty by his trial
counsel.
At  the  Machner  hearing,  both  Kachelski  and  his  trial  counsel
testified.   Trial counsel testified that he did not treat Kachelski’s case any different
than any other case despite the fact that it represented a “flat-fee” assignment from
the public defender’s office.   He testified that Kachelski wanted to plead guilty to
get the case over with, that Kachelski admitted committing the crimes as described
in the police report and that it was Kachelski’s decision to plead guilty.   Trial
counsel also testified that he discussed the State’s plea agreement with Kachelski,
that he told Kachelski the trial court usually imposes the sentence recommended
by the State, and this would mean Kachelski’s sentence upon the guilty plea would
include some jail time.
2  See State v. Machner, 92 Wis.2d 797, 285 N.W.2d 905 (Ct. App. 1979).
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Nos. 97-1326-CR; 97-1327-CR; 97-1328-CR; 97-1329-CR & 97-1330-CR
Kachelski  offered  a  very  different  version  of  events  when  he
testified at the Machner hearing.   He said that the only reason he agreed to plead
guilty was because trial counsel told him he would get out of jail.   He testified that
he told trial counsel that he did not commit the crimes, and that he lied to the trial
court when he admitted committing these crimes.   He stated that despite the trial
court’s statement that it would impose jail time, Kachelski still believed that he
would get out of jail if he pled guilty.
The trial court found that Kachelski’s testimony was  “completely
self serving and … a sham attempt to get out of the plea and the sentences,” and
incredible.   There is evidence in the record to support this finding.   In addition to
trial counsel’s testimony, there is strong evidence to show that Kachelski was
guilty of committing the crimes charged.   There were witnesses who observed the
events, medical records to support the claims and Kachelski’s own representations
at the plea hearing.
Given the conflicting testimony, and the additional support in the
record, the trial court's findings are not clearly erroneous.    Section  805.17(2),
STATS.   Moreover, the trial court's decision turns on its credibility assessment.   It
is the trial court’s responsibility to assess the reliability, weight and credibility to
be given to the witnesses’ testimony.   See State v. Anderson, 149 Wis.2d 663,
680, 439 N.W.2d 840, 847 (Ct. App. 1989), rev'd on other grounds, 155 Wis.2d
77,  454 N.W.2d  763 (1990).   This court is obligated to give due regard to the
opportunity of the trial court to judge the credibility of the witnesses.   See id.   This
court cannot substitute its judgment.
Kachelski based his motion on two factors:                                                   (1) that trial counsel’s
flat-fee contract with the public defender’s office created a conflict of interest,
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Nos. 97-1326-CR; 97-1327-CR; 97-1328-CR; 97-1329-CR & 97-1330-CR
because it motivated trial counsel to dispose of his case as quickly as possible so
trial counsel would not be underpaid; and (2) that trial counsel did not provide
effective representation.  This court is not persuaded.
First, as to the alleged conflict of interest, the trial court found that
Kachelski failed to satisfy his burden of proof on this issue.   See State v. Franklin,
111 Wis.2d 681, 686, 331 N.W.2d 633, 636 (Ct. App. 1983).   This court agrees.
Although the flat-fee contract may raise a suspicion of potential conflict, there is
no evidence that a conflict arose regarding the facts in this case.   Trial counsel
testified that his representation in this case was not based on how he was being
paid and that he would have handled the case the same even if he was representing
a private client.   There is no evidence that trial counsel would have handled this
case differently if it had involved a private client who had paid a large retainer or
that  this  representation  was  based  on  greed,  financial  pressure  or  economic
calculations.
Second, Kachelski claims he received ineffective assistance because
trial counsel failed to perform any investigation, (such as interviewing witnesses),
failed to make a discovery demand, and failed to represent him as to bail issues.
This  court  concludes  that  Kachelski  has  not  shown  he  received  ineffective
assistance of trial counsel.
Whether  counsel  has  provided  ineffective  assistance  is  stated  in
Strickland v.  Washington,  466 U.S.  668  (1984).    The  ultimate  determination
involves  reviewing                                                                       “whether  counsel's  conduct  so  undermined  the  proper
functioning of the adversarial process that the trial cannot be relied on as having
produced a just result.”   Id. at 686.   The overall purpose of this inquiry is to make
sure that a defendant receives a fair trial.   A fair trial is defined as “one in which
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Nos. 97-1326-CR; 97-1327-CR; 97-1328-CR; 97-1329-CR & 97-1330-CR
evidence subject to adversarial testing is presented to an impartial tribunal for
resolution of issues defined in advance of the proceeding.”   Id. at 685.
Strickland  set  forth  a  two-part  test  for  determining  whether
counsel’s  actions  constitute  ineffective  assistance.    The  first  test  requires  the
defendant to show that his counsel’s performance was deficient.                               “This requires
showing that counsel made errors so serious that counsel was not functioning as
the  ‘counsel’ guaranteed the defendant by the Sixth Amendment.”    Id. at  687.
Review of trial counsel’s performance gives great deference to the attorney and
this court will make efforts to avoid determinations of ineffectiveness based on
hindsight.   The case is reviewed from trial counsel’s perspective at the time of the
representation, and the burden is placed on the defendant to overcome a strong
presumption that counsel acted reasonably within professional norms.
Even if deficient performance is found, the judgment will not be
reversed unless the defendant proves that the deficiency prejudiced his defense.
“This requires showing that counsel’s errors were so serious as to deprive the
defendant of a fair [proceeding], a [proceeding] whose result is reliable.”   Id.   The
standard  of  review  of  the  ineffective  assistance  of  counsel  components  of
performance and prejudice is a mixed question of law and fact.   Id. at 698.   Thus,
the trial court’s findings of fact, “the underlying findings of what happened,” will
not be overturned unless clearly erroneous.   State v. Pitsch, 124 Wis.2d 628, 634,
369 N.W.2d 711, 714 (1985).   The ultimate determination of whether counsel’s
performance was deficient and prejudicial to the defense are questions of law
which this court reviews independently.  Id.
Although it may seem at first glance that an attorney who fails to
perform any investigation, request any discovery and so forth, has hardly provided
6




Nos. 97-1326-CR; 97-1327-CR; 97-1328-CR; 97-1329-CR & 97-1330-CR
effective representation, a closer look at the facts present here compel a different
conclusion.   Trial counsel stated that his client admitted committing the crimes,
that the client wanted to plead guilty, that his client waived discovery, and that in
his opinion the State’s plea agreement was beneficial.   The agreement involved
dismissing one count and a recommendation of twelve months jail time.   Trial
counsel indicated that the facts of this case, if tried, probably would have rendered
a much lengthier sentence.    Kachelski battered his girlfriend on five separate
occasions.   On three of those occasions she was pregnant with his child, and on
one of these three, the battery involved punching her in the stomach.   In addition,
the  State  had  a  strong  case,  including witnesses-other  than the  victim-to  the
crimes, a 911 tape, and medical injury evidence.
Based on the foregoing, the trial court found that any investigation
would not have made a difference.   This court concurs.   Even in the absence of
testimony for the victim, the State’s case was strong.   Hence, even if trial counsel
would have interviewed the victim and learned that she did not want Kachelski to
go to jail, that she played some role in instigating the events leading to the battery
and that she would not testify, this information does not render the result of the
plea hearing unreliable.   Kachelski admitted that he was guilty and he wanted to
plead to get the case over with.   In light of the foregoing, it was not unreasonable
for trial counsel to handle the case in the manner he did.
By the Court.—Judgments and order affirmed.
This opinion will not be published.   See RULE 809.23(1)(b)4, STATS.
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