State v. Kiddchosen G. Cvikel

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 27, 2026
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. 2024AP1339-CR Cir. Ct. No. 2020CF4074

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KIDDCHOSEN G. CVIKEL,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: DAVID L. BOROWSKI and DAVID C. SWANSON, Judges.
Affirmed.

Before Donald, C.J., Colón, P.J., and Geenen, J.

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. 2024AP1339-CR

¶1 PER CURIAM. Kiddchosen G. Cvikel appeals a judgment of
conviction entered after he pled guilty to felony murder. He also appeals an order
denying his motion for postconviction relief.1 He claims that the trial court erred
by failing to grant his pre-plea request for new counsel. He further claims that, in
light of the trial court’s alleged error, the circuit court should have granted his
postconviction motion and permitted him to withdraw his guilty plea. We conclude
that, by pleading guilty, Cvikel forfeited his claim of trial court error. We further
conclude that the postconviction proceedings did not demonstrate a manifest
injustice warranting plea withdrawal. Therefore, we affirm.

BACKGROUND

¶2 The State charged Cvikel in 2020 with felony murder and with
attempted armed robbery as a party to the crime. The state public defender
appointed counsel for him.

¶3 Cvikel filed a letter with the trial court in early October 2021, asking
for new counsel. However, when Cvikel next appeared in court, on November 22,
2021, no one mentioned the letter or raised the issue of new counsel. Instead, Cvikel
resolved the charges with a plea agreement. The trial court conducted a colloquy
with Cvikel and then accepted his guilty plea to felony murder. The second charge
against him was dismissed and read in for sentencing purposes. The trial court
subsequently sentenced Cvikel to a 37-year term of imprisonment.

1
The Honorable David L. Borowski presided over the plea and sentencing in this matter
and entered the judgment of conviction. We refer to Judge Borowski as the trial court. The
Honorable David C. Swanson presided over Cvikel’s postconviction motion and entered the order
denying postconviction relief. We refer to Judge Swanson as the circuit court.

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No. 2024AP1339-CR

¶4 Following sentencing, the state public defender appointed
postconviction counsel for Cvikel, and he moved for postconviction relief. As
grounds, he claimed that the trial court had erroneously exercised its discretion by
not addressing his request for new counsel. He requested a hearing on that claim
and, if he prevailed, leave to withdraw his guilty plea.

¶5 The circuit court held a hearing at which Cvikel testified on his own
behalf, and trial counsel testified for the State. Following the hearing and receipt of
post-hearing memoranda, the circuit court denied postconviction relief. The circuit
court assessed Cvikel’s testimony at the hearing, including his allegation that trial
counsel never discussed a plea with him, and the circuit court found that Cvikel was
“just not credible.” Rather, the circuit court found that “the transcripts here show
that a plea was discussed on the record ... months before the plea was entered.” The
circuit court also rejected Cvikel’s argument that he was “cemented to a lawyer with
whom full and fair communication was impossible,” finding that “the record here
just does not support that determination.” The circuit court particularly noted that
at the plea hearing, the trial court conducted an extensive colloquy with Cvikel, and
none of his answers reflected any concerns about his lawyer. The circuit court
concluded that Cvikel entered his guilty plea knowingly, intelligently, and
voluntarily, and that he failed to establish a basis for plea withdrawal. Cvikel
appeals.

DISCUSSION

¶6 Cvikel first asserts that the trial court erred when it failed to conduct
an inquiry into his letter request for new counsel. See State v. Lomax, 146 Wis. 2d
356, 361-62, 432 N.W.2d 89 (1988) (holding that a trial court is required to inquire
into a defendant’s request for a change of counsel). We agree with the State that

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No. 2024AP1339-CR

this claim is forfeited. By rule, a plea other than not guilty constitutes a forfeiture
of “all nonjurisdictional defects, including constitutional claims.” State v. Kelty,
2006 WI 101, ¶18 & n.11, 294 Wis. 2d 62, 716 N.W.2d 886 (citation omitted). We
reject Cvikel’s suggestion that an exception to the rule exists for claims related to
requests for new counsel. The law is otherwise. See State v. Rockette, 2005 WI
App 205, ¶32, 287 Wis. 2d 257, 704 N.W.2d 382 (holding that a defendant’s no-
contest plea resulted in forfeiture of a challenge to an earlier order denying a motion
to proceed pro se or with new counsel).

¶7 In light of the forfeiture rule, the State asks us to dispose of the entirety
of Cvikel’s postconviction litigation as a forfeited claim to replace his trial counsel.
However, a defendant may raise claims related to errors occurring before a plea if
those errors are “put forward as grounds for plea withdrawal.” State v. Villegas,
2018 WI App 9, ¶47, 380 Wis. 2d 246, 908 N.W.2d 198. Here, Cvikel’s
postconviction motion included a request for plea withdrawal: Cvikel not only
sought an opportunity to prove facts surrounding his request for new counsel but
also asserted that the facts would entitle him to withdraw his plea. Moreover, the
circuit court understood Cvikel to seek plea withdrawal and expressly denied that
request. Accordingly, we turn to whether the circuit court erred by doing so.

¶8 Whether to permit plea withdrawal after sentencing “rests in the
circuit court’s discretion.” State v. Shallcross, 2025 WI App 66, ¶35, 418 Wis. 2d
575, 28 N.W.3d 194 (citation omitted). Our review is therefore deferential. See
State v. Bentley, 201 Wis. 2d 303, 311, 548 N.W.2d 50 (1996). We will uphold a
circuit court’s discretionary decision if the circuit court “undertook a reasonable
inquiry and examination of the facts, and the record shows that there is a reasonable
basis for the court’s determination.” State v. Jeske, 197 Wis. 2d 905, 912, 541
N.W.2d 225 (Ct. App. 1995) (citation modified). We will not overturn findings of

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No. 2024AP1339-CR

fact underlying discretionary determinations unless those findings are clearly
erroneous. State v. Holmgren, 229 Wis. 2d 358, 366, 599 N.W.2d 876 (Ct. App.
1999). Because the exercise of discretion is so essential to a circuit court’s
functioning, we search the record for reasons to sustain a discretionary decision.
See Jeske, 197 Wis. 2d at 912.

¶9 A defendant seeking to withdraw a guilty plea after sentencing must
demonstrate to the circuit court, by evidence that is clear and convincing, that the
circuit court should permit plea withdrawal “to correct a ‘manifest injustice.’” State
v. Thomas, 2000 WI 13, ¶16, 232 Wis. 2d 714, 605 N.W.2d 836 (citations omitted).
To establish a manifest injustice, the defendant must show that there are “serious
questions affecting the fundamental integrity of the plea.” State v. Dillard, 2014
WI 123, ¶36, 358 Wis. 2d 543, 859 N.W.2d 44 (citation omitted).

Our supreme court has recognized six scenarios that may constitute a
manifest injustice warranting plea withdrawal:

(1) ineffective assistance of counsel; (2) the defendant did
not personally enter or ratify the plea; (3) the plea was
involuntary; (4) the prosecutor failed to fulfill the plea
agreement; (5) the defendant did not receive the concessions
tentatively or fully concurred in by the court, and the
defendant did not reaffirm the plea after being told that the
court no longer concurred in the agreement; and, (6) the
court had agreed that the defendant could withdraw the plea
if the court deviated from the plea agreement.

State v. Taylor, 2013 WI 34, ¶49, 347 Wis. 2d 30, 829 N.W.2d 482 (citations
omitted). Cvikel did not allege the existence of any of those six scenarios. He
conceded at the plea withdrawal hearing that he was not challenging the voluntary

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No. 2024AP1339-CR

nature of his plea or alleging ineffective assistance of trial counsel.2 He did not
suggest that any of the remaining four scenarios outlined in Taylor had any
application to his case. Cvikel instead tied his claim for postconviction relief to a
scenario that Taylor does not list, namely, an allegation that he was unable to
communicate with trial counsel. See State v. Jones, 2007 WI App 248, ¶13, 306
Wis. 2d 340, 742 N.W.2d 341 (emphasis omitted) (explaining that an “indigent
defendant is entitled to a lawyer with whom he or she can communicate”).

¶10 For the sake of argument, we will assume without so holding that
inability to communicate with trial counsel, standing alone, may constitute a
manifest injustice that is distinct from a claim of ineffective assistance of counsel.
Cf. id. (concluding that an inability to communicate with counsel “would make a
mockery of the hallowed right to effective legal representation”); but see United
States v. Volpentesta, 727 F.3d 666, 674 (7th Cir. 2013) (reflecting the 7th Circuit’s
view that communication between attorney and client is “but one facet of the general
inquiry into whether counsel was effective”). A defendant, however, must prove
inability to communicate with counsel before any relief is warranted. Jones, 306
Wis. 2d 340, ¶19 (holding that a hearing-impaired defendant would be entitled to a
new trial if the defendant could prove an inability to communicate with the attorney
who represented him at trial). Here, the circuit court considered Cvikel’s argument
that “full and fair communication [with trial counsel] was impossible,” and the
circuit court found that “the record just doesn’t bear that out.” We see no error.

2
We observe that Cvikel’s trial counsel and postconviction counsel were both employees
of the state public defender’s office, reflecting the state public defender’s determination that the
case did not present an arguable claim that trial counsel was ineffective. See WIS. ADMIN. CODE
§ PD 2.11(2) (through Nov. 2024) (providing that “[t]he state public defender shall assign to
independent private counsel any case in which a staff attorney of the state public defender’s office
provided trial representation and it is arguable that the client was not afforded effective
representation”).

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No. 2024AP1339-CR

¶11 The record shows that the trial court asked Cvikel during the plea
colloquy: “You’re able to communicate with your attorney; is that correct?” Cvikel
answered: “That’s correct.” The trial court also asked Cvikel during the colloquy
whether he had reviewed the plea questionnaire and jury instructions with his
attorney, and Cvikel said that he had done so. Cvikel’s subsequent testimony at the
postconviction hearing included admissions that he had received multiple visits
from trial counsel while in jail prior to his plea, that counsel asked him many
questions during those visits, and that trial counsel agreed to “see what he c[ould]
do” in regard to a suppression motion that Cvikel wanted to pursue. The circuit
court’s finding that Cvikel could communicate with trial counsel is thus supported
by the record and is not clearly erroneous. Accordingly, assuming that inability to
communicate with counsel constitutes a manifest injustice that could warrant plea
withdrawal, Cvikel failed to carry his burden to prove that circumstance.

¶12 We conclude by emphasizing that we have no quarrel with Cvikel’s
contention that a trial court should explore a defendant’s request for new counsel
before taking steps to advance the case. Lomax requires such an inquiry, which
serves the interests of the parties, the courts, and the public in ensuring both timely
consideration of a defendant’s complaints about counsel and protection of “societal
interest in the prompt and efficient administration of justice.” Id., 146 Wis. 2d at
359-60. Like other important issues and nonjurisdictional claims, however, the right
to seek substitution of counsel before trial does not survive a valid guilty plea. See
Villegas, 380 Wis. 2d 246, ¶47. Here, Cvikel gave up the opportunity to claim that
he was denied the opportunity to proceed with new counsel when he elected to plead
guilty. See Rockette, 287 Wis. 2d 257, ¶32. He then failed to show that his guilty
plea constituted a manifest injustice. For all the foregoing reasons, we affirm.

By the Court.—Judgment and order affirmed.

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No. 2024AP1339-CR

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

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