State v. Paul E. Mitchell

OFFICE OF THE CLERK
WISCONSIN COURT OF APPEALS
110 EAST MAIN STREET, SUITE 215
P.O. BOX 1688
MADISON, WISCONSIN 53701-1688
Telephone (608) 266-1880
TTY: (800) 947-3529
Facsimile (608) 267-0640
Web Site: www.wicourts.gov
DISTRICT I
November 2, 2021
To:
Hon. David C. Swanson
Circuit Court Judge
Electronic Notice
John Barrett
Clerk of Circuit Court
Milwaukee County
Electronic Notice
Winn S. Collins
Electronic Notice
Marcella De Peters
Electronic Notice
John D. Flynn
Electronic Notice
Paul E. Mitchell #544548
Racine Correctional Inst.
P.O. Box 900
Sturtevant, WI 53177-0900
You are hereby notified that the Court has entered the following opinion and order:
2020AP413-CRNM State of Wisconsin v. Paul E. Mitchell (L.C. # 2016CF961)
Before Brash, C.J., Donald, P.J., and Dugan, J.
Summary disposition orders 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).
Paul E. Mitchell pled guilty to three felonies, all arising on March 2, 2016. Upon his
guilty plea to possession with intent to deliver more than fifteen grams of cocaine, but not more
than forty grams of cocaine, he faced maximum penalties of a $100,000 fine and twenty-five
years of imprisonment. See WIS. STAT. §§ 961.41(1m)(cm)3., 939.50(3)(d) (2015-16).1 Upon
his guilty plea to possession of a firearm while a felon, he faced maximum penalties of a $25,000
1 All subsequent references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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fine and ten years of imprisonment. See WIS. STAT. §§ 941.29(1m)(a), 939.50(3)(g) (2015-16).
Upon his guilty plea to bail jumping, he faced maximum penalties of a $10,000 fine and six
years of imprisonment. See WIS. STAT. §§ 946.49(1)(b), 939.50(3)(h) (2015-16). The circuit
court imposed a fifteen-year term of imprisonment for the drug offense, bifurcated as eight years
of initial confinement and seven years of extended supervision. For the other two convictions,
the circuit court imposed evenly bifurcated sentences of six years of imprisonment and four years
of imprisonment, respectively. The circuit court ordered Mitchell to serve the three sentences
concurrently with each other, but consecutive to any other sentence. The circuit court found
Mitchell ineligible for the challenge incarceration program and the Wisconsin substance abuse
program and, following a restitution hearing, the circuit court ordered Mitchell to pay restitution
in the amount of $6,336.64. In postconviction proceedings, the circuit court determined that
Mitchell was not entitled to any sentence credit. He appeals.
Appellate counsel, Attorney Marcella De Peters, filed a no-merit report on Mitchell’s
behalf pursuant to Anders v. California, 386 U.S. 738 (1967), and WIS. STAT. RULE 809.32. In
that report, Attorney De Peters discussed Mitchell’s competency to proceed, the validity of
Mitchell’s guilty pleas, and the circuit court’s exercise of sentencing discretion. Following a
preliminary review of the record, we determined that the transcript of the restitution hearing had
not been prepared, and, at our direction, Attorney De Peters requested preparation of the missing
transcript. She subsequently filed a supplemental no-merit report explaining her conclusion that
a challenge to the restitution order would lack arguable merit. Mitchell then filed two responses.
Upon consideration of the no-merit reports, Mitchell’s responses, and an independent review of
the entire record as required by Anders, we conclude that no arguably meritorious issues exist for
an appeal. Therefore, we summarily affirm. See WIS. STAT. RULE 809.21.

No. 2020AP413-CRNM
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According to the criminal complaint, two police officers patrolling in Milwaukee on
March 2, 2016, saw a black Honda Pilot speeding in the area of Hampton Avenue and 20th
Street. When they attempted to stop the Honda, the driver accelerated to evade the officers.
During the ensuing chase, the Honda collided with two other vehicles. After the second
collision, the Honda’s driver got out of the car and fled on foot. The officers apprehended the
fleeing suspect, subsequently identified as Mitchell, when he tried to get into the first car that he
struck. Police searched Mitchell incident to the arrest and found $5,885 in his pocket. Police
also searched the Honda and found two loaded handguns, 31.38 grams of cocaine, and a digital
scale.
Further investigation revealed that on March 2, 2016, Mitchell was facing felony charges
in Milwaukee County Circuit Court case No. 2014CF3249, and was out of custody on bond with
a condition that he not commit any new crimes. Additionally, the State determined that Mitchell
had at least two prior felony drug convictions, one within the previous five years. The State
charged Mitchell with five felonies as a habitual offender: possession with intent to deliver more
than fifteen grams of cocaine but not more than forty grams of cocaine as a second or subsequent
narcotics offense; two counts of possessing a firearm while a felon; and two counts of bail
jumping. The State also charged him with one misdemeanor count of obstructing an officer.
Mitchell disputed the charges for some time, but eventually he decided to resolve the case
with a plea agreement. Pursuant to its terms, the State agreed to move to dismiss and read in the
misdemeanor count, one of the two counts of possessing a firearm as a felon, and one of the two
counts of bail jumping; and to strike all of the penalty enhancers alleged in connection with the
other three charges. Mitchell agreed to plead guilty to the three unenhanced felony charges that
the State would not dismiss, and he agreed that the two vehicle collisions that he caused on

No. 2020AP413-CRNM
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March 2, 2016, would be treated as read-in crimes for which he would be subject to restitution.
Each party was free to recommend whatever disposition the party thought was appropriate.
Additionally, Mitchell was free to dispute the amount of restitution that he owed, but he
“agree[d] to restitution in an amount that would ultimately be approved by the court.” The
circuit court accepted Mitchell’s guilty pleas in May 2017, and the matters subsequently
proceeded to sentencing.
We first consider whether Mitchell could raise an arguably meritorious claim that he was
not competent to proceed with criminal litigation. We agree with appellate counsel that he could
not do so. The circuit court referred Mitchell for a competency evaluation early in the
proceedings after his trial counsel advised that, in two other criminal cases pending against
Mitchell in front of other circuit court judges, competency evaluations had been ordered and
were underway. The examining psychologist, Dr. Deborah L. Collins, filed a report stating that
Mitchell was “motivated and able to reply to the charges,” he understood the available pleas, he
could “reason among plea options,” and he “displayed the capacity to understand the risks
attendant to proceeding to the resolution of a case through a trial or plea bargain.” Dr. Collins
noted that Mitchell had “proven to be a challenging client,” but that he exhibited “no clear
indication of an underlying formal mental illness,” and she opined to a reasonable degree of
professional certainty that he was competent to proceed. Neither the State nor Mitchell disputed
Dr. Collins’s conclusions. The circuit court found that Mitchell was competent to proceed.
“[A] defendant is incompetent if he or she lacks the capacity to understand the nature and
object of the proceedings, to consult with counsel, and to assist in the preparation of his or her
defense.” State v. Byrge, 2000 WI 101, ¶27, 237 Wis. 2d 197, 614 N.W.2d 477. This court will
uphold a circuit court’s competency determination unless that determination is clearly erroneous.

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See State v. Garfoot, 207 Wis. 2d 214, 225, 558 N.W.2d 626 (1997). In light of the
psychologist’s report and the standard of review, any further proceedings in regard to Mitchell’s
competence would lack arguable merit.
We next consider whether Mitchell could pursue an arguably meritorious claim for plea
withdrawal on the ground that his guilty pleas were not knowing, intelligent, and voluntary. See
State v. Bangert, 131 Wis. 2d 246, 257, 389 N.W.2d 12 (1986). At the outset of the plea
hearing, the circuit court established that Mitchell was thirty years old and that he had a high
school education. The circuit court also established that Mitchell had signed a guilty plea
questionnaire and waiver of rights form and addendum and that he understood their contents.
See State v. Pegeese, 2019 WI 60, ¶¶36-37, 387 Wis. 2d 119, 928 N.W.2d 590. The circuit court
then conducted a colloquy with Mitchell that complied with the circuit court’s obligations when
accepting a plea other than not guilty. See id., ¶23; see also WIS. STAT. § 971.08. The record—
including the plea questionnaire and waiver of rights form and addendum, the attached
documents describing the elements of the crimes to which Mitchell pled guilty, and the plea
hearing transcript—demonstrates that Mitchell entered his guilty pleas knowingly, intelligently,
and voluntarily.
Mitchell disagrees. He first claims that he has an arguably meritorious basis for
challenging his guilty plea to the charge of possessing a firearm as a felon because the State did
not attach a certified copy of a judgment of conviction to the criminal complaint as proof that he
was a felon. The claim lacks merit. The complaint alleged the prior felony conviction and
Mitchell admitted his status as a felon by pleading guilty. Nothing further is required. See
State v. Black, 2001 WI 31, ¶¶15-16, 242 Wis. 2d 126, 624 N.W.2d 363.

No. 2020AP413-CRNM
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Second, Mitchell claims that he has arguably meritorious bases for challenging his guilty
plea to the charge of bail jumping because the State did not prove that he was released on bond at
the time of his conduct in this case, and he did not know that he could dispute the allegation at
trial; the circuit court did not describe the bond conditions with which he did not comply; and
“no evidence [existed] that Mitchell had committed any new crimes” while on bond. The claim
lacks merit. A defendant who pleads guilty gives up the right to require the State to prove his or
her guilt. See Black, 242 Wis. 2d 126, ¶15. Moreover, while Mitchell states that he “did not
know ... that he ha[d] the right to have the mater[ia]l presented at trial and ... to challenge [its]
v[era]city ... before a jury,” the record shows otherwise. He assured the circuit court during his
plea colloquy that he understood that he was giving up his right to a jury trial where the State
would be required to prove each element of the charges against him beyond a reasonable doubt
before the jury could find him guilty. As to Mitchell’s suggestion that no evidence existed that
he committed any new crimes, we remind him that he pled guilty to committing two other crimes
while on bond.
Third, Mitchell claims that he has an arguably meritorious basis to challenge his guilty
pleas because the circuit court did not explain to him the mechanics of bifurcated sentencing.
This claim lacks merit. The circuit court told Mitchell the maximum term of imprisonment that
he faced for each conviction, “and no additional dissection of the potential punishment is
required.” See State v. Sutton, 2006 WI App 118, ¶15, 294 Wis. 2d 330, 718 N.W.2d 146.
We conclude that no arguably meritorious basis exists for Mitchell to challenge the
validity of his guilty pleas. Further pursuit of this issue would be frivolous within the meaning
of Anders.

No. 2020AP413-CRNM
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We also conclude that Mitchell could not pursue an arguably meritorious challenge to the
circuit court’s exercise of sentencing discretion. See State v. Gallion, 2004 WI 42, ¶17, 270
Wis. 2d 535, 678 N.W.2d 197. The circuit court stated that protection of the community was the
primary sentencing objective and that deterrence was also a “real concern.” The circuit court
then discussed the sentencing factors that it had considered in fashioning dispositions to achieve
the sentencing goals. See id., ¶¶41-43. The circuit court’s considerations were proper and
relevant and included the mandatory sentencing factors of “the gravity of the offense, the
character of the defendant, and the need to protect the public.” See State v. Ziegler, 2006 WI
App 49, ¶23, 289 Wis. 2d 594, 712 N.W.2d 76.
Mitchell asserts that he has an arguably meritorious claim that the circuit court
erroneously exercised its sentencing discretion because the circuit court did not give a reason for
requiring him to serve the sentences in this case consecutive to a previously imposed sentence
that he was already serving. This claim lacks merit. When a defendant faces sentencing for a
crime that is distinct from a past offense for which the defendant previously was sentenced and is
serving time, the circuit court is not required to identify additional reasons for imposing a
consecutive sentence if the circuit court “has considered the proper factors, explained its
rationale for the overall sentence it imposes, and the sentence is not unreasonable[.]” See State
v. Matke, 2005 WI App 4, ¶¶18-19, 278 Wis. 2d 403, 692 N.W.2d 265.
Mitchell next asserts that he has an arguably meritorious claim that the circuit court erred
because it did not determine “the a[]verage sentence” for the crimes that Mitchell committed,
and the sentences therefore ran afoul of the constitutional bar against cruel and unusual
punishment. See U.S. CONST. amend. VIII. There is no merit to this claim. “What constitutes
adequate punishment is ordinarily left to the discretion of the trial judge. If the sentence is

No. 2020AP413-CRNM
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within the statutory limit, appellate courts will not interfere unless clearly cruel and unusual.”
State v. Ninham, 2011 WI 33, ¶85, 333 Wis. 2d 335, 797 N.W.2d 451 (citations and brackets
omitted). Moreover, “[a] sentence is clearly cruel and unusual only if the sentence is ‘so
excessive and unusual, and so disproportionate to the offense committed, as to shock public
sentiment and violate the judgment of reasonable people concerning what is right and proper
under the circumstances.’” Id. (citations and some quotations marks omitted). The sentences
imposed here were well within the limits of the maximum sentences allowed by law and cannot
be considered shocking or unconscionable. See State v. Daniels, 117 Wis. 2d 9, 22, 343 N.W.2d
411 (Ct. App. 1983).
In sum, the record reflects that the circuit court properly exercised its sentencing
discretion. Further pursuit of this issue would be frivolous within the meaning of Anders.
Mitchell next asserts that his trial counsel was ineffective at sentencing for failing to
obtain a psychologist’s report to support his theory that his criminal conduct flowed from the
bereavement he suffered when his parents passed away in 2007. To prevail on a claim of
ineffective assistance of counsel, a defendant must show both that counsel’s representation was
deficient and that the deficiency prejudiced the defense. See Strickland v. Washington, 466 U.S.
668, 687 (1984). Here, nothing in the record suggests that Mitchell was prejudiced by his trial
counsel’s actions in not obtaining a psychological assessment for his sentencing. The circuit
court accepted trial counsel’s suggestion that Mitchell’s criminal behavior was sparked by his
parents’ deaths, expressly recognizing that Mitchell’s loss was a tragedy and finding that it
“might send a young man off the rails.” The circuit court found, however, that the deaths
occurred when Mitchell was twenty years old and “at an age where [he] knew better” than to
commit crimes. Further, the circuit court found that Mitchell had many chances to address his

No. 2020AP413-CRNM
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rehabilitative needs since the deaths of his parents, but he did not take advantage of his
opportunities. Accordingly, the record does not suggest any reasonable probability that the
outcome of the sentencing would have been different if Mitchell’s trial counsel had obtained a
psychological assessment for the proceeding. See id. at 694 (explaining that, to demonstrate
prejudice, “[t]he 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”).
Further pursuit of this issue would lack arguable merit.
We next consider whether Mitchell could pursue an arguably meritorious claim that the
circuit court erred by finding him ineligible to participate in the challenge incarceration program
and the Wisconsin substance abuse program. Successful completion of either prison treatment
program normally permits an inmate serving a bifurcated sentence to convert his or her
remaining initial confinement time to extended supervision time. See WIS. STAT. §§ 302.045(1),
302.045(3m)(b), 302.05(1)(am), 302.05(3)(c)2.; but see State v. Gramza, 2020 WI App 81, 395
Wis. 2d 215, 952 N.W.2d 836. A circuit court exercises its discretion when determining a
defendant’s eligibility for these programs, and we will sustain the circuit court’s conclusions if
they are supported by the record and the overall sentencing rationale. See State v. Owens, 2006
WI App 75, ¶¶7-9, 291 Wis. 2d 229, 713 N.W.2d 187; WIS. STAT. § 973.01(3g)-(3m).2 In this
case, the circuit court found that Mitchell’s rehabilitative needs were a secondary concern and
that his failure to take advantage of the treatment offered to him during an earlier period of
2 The Wisconsin substance abuse program was formerly known as the earned release program.
Effective August 3, 2011, the legislature renamed the program. See 2011 Wis. Act 38, § 19; WIS. STAT.
§ 991.11. The program is identified by both names in the current version of the Wisconsin Statutes. See
WIS. STAT. §§ 302.05, 973.01(3g).

No. 2020AP413-CRNM
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probation reflected that his “prior contacts with corrections didn’t have much of an impact,”
necessitating that he serve the entirety of the initial confinement imposed in the instant case. The
eligibility decision was thus consistent with the sentencing rationale. Further pursuit of this issue
would lack arguable merit.
We also conclude that Mitchell could not pursue an arguably meritorious claim for
sentence credit. The record shows that all of the time that Mitchell spent in presentence custody
after his arrest on March 2, 2016, until his sentencing in Milwaukee County Circuit Court case
No. 2014CF3249, was credited to those earlier imposed sentences, and the circuit court ordered
Mitchell to serve his sentences in this case consecutive to any other sentence. Dual credit on
consecutive sentences is not permitted. See State v. Boettcher, 144 Wis. 2d 86, 87, 423 N.W.2d
533 (1988). Further pursuit of this issue would lack arguable merit.
We next consider whether Mitchell could pursue an arguably meritorious challenge to the
order that he pay restitution of $6,336.64 to S.V., the driver of one of the vehicles involved in the
collisions that Mitchell caused on March 2, 2016.3 We conclude that he could not do so.
WISCONSIN STAT. § 973.20(1r) provides that a circuit court shall order the defendant to
pay restitution “to any victim of a crime considered at sentencing ... unless the court finds
substantial reason not to do so and states the reason on the record.” This provision applies to
read-in offenses, whether they are dismissed or not charged. See WIS. STAT. § 973.20(1g).
Mitchell therefore could not mount an arguably meritorious claim that the circuit court wrongly
considered S.V.’s request for restitution.
3 The record reflects that no other victim in the case sought restitution.

No. 2020AP413-CRNM
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Mitchell also could not mount an arguably meritorious challenge to the amount of
restitution awarded to S.V. “The determination of the amount of restitution to be ordered (and
thus whether a victim’s claim should be offset or reduced for any reason) is reviewed under the
erroneous exercise of discretion standard.” State v. Longmire, 2004 WI App 90, ¶16, 272
Wis. 2d 759, 681 N.W.2d 534 (emphasis omitted). We uphold factual findings that are part of a
discretionary decision unless they are clearly erroneous. See State v. Holmgren, 229 Wis. 2d
358, 366, 599 N.W.2d 876 (Ct. App. 1999). We affirm the circuit court’s decision if the circuit
court applied a correct legal standard, logically interpreted the facts, and used a rational process
to reach a reasonable conclusion. See Longmire, 272 Wis. 2d 759, ¶16.
S.V. testified at the restitution hearing that, before the collision, his 1998 Toyota Avalon
was in “perfect” condition and was worth $3,100. He further testified that, after the collision, the
car was “barely drivable” and was considered “totaled.” Mitchell suggests in his response to the
no-merit report that he can pursue an arguably meritorious claim that he is not responsible for the
entirety of the $3,100 in damages to S.V.’s car because responsibility for the damages is
“shared.” Mitchell is not clear regarding who he believes shares responsibility for causing the
damages. Regardless, the claim lacks arguable merit because when a defendant plays a part in a
criminal episode resulting in damages to a victim, the defendant may properly be held to pay the
entirety of the damages caused by the crime. See State v. Madlock, 230 Wis. 2d 324, 336, 602
N.W.2d 104 (Ct. App. 1999).
There is also no arguable merit to a claim that the circuit court erroneously determined
the extent of S.V.’s lost wages due to the collision. S.V. testified that he worked as a delivery
driver and that he was unable to work for a month after the collision because the car’s back lights
did not work. He presented a payroll summary from his employer to demonstrate that he lost

No. 2020AP413-CRNM
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wages of $3,236.64 during the four weeks required to render his car operable. The circuit court
found that S.V. required a drivable car in order to do his job and that he lost the wages he would
have earned during the time that he was unable to drive his car. These findings of fact are
supported by the testimony and therefore are not clearly erroneous.
Further, the circuit court applied proper legal standards in determining that S.V.’s lost
wages of $3,236.64 were compensable as restitution. A circuit court may order restitution for
“all special damages ... substantiated by evidence in the record, which could be recovered in a
civil action against the defendant for his or her conduct in the commission of a crime considered
at sentencing.” See WIS. STAT. § 973.20(5)(a). “Lost wages are a type of special damages.”
State v. Muth, 2020 WI 65, ¶50, 392 Wis. 2d 578, 945 N.W.2d 645. S.V. could have pursued
his lost wages in a negligence action. See Burlison v. Janssen, 30 Wis. 2d 495, 502-03, 141
N.W.2d 274 (1966). While the circuit court considered testimony that S.V. had received some
money from his father to fix the Toyota’s rear lights, the circuit court reasonably concluded that
Mitchell was not entitled to a setoff for that money against his restitution obligation. See
Ellsworth v Schelbrock, 2000 WI 63, ¶7, 235 Wis. 2d 678, 611 N.W.2d 764 (explaining that a
victim’s receipt of money from a collateral source for expenses does not redound to the benefit
of the tortfeasor).
Mitchell suggests that his trial counsel was ineffective for failing to argue that he was
unable to pay restitution. The record shows no deficiency. As the circuit court explained at the
outset of its ruling, Mitchell had “agreed to pay restitution as part of the plea agreement, so the
issue is the amounts.” The record also shows no prejudice. A defendant has the burden to prove
an inability to pay restitution. See Madlock, 230 Wis. 2d at 336. Mitchell described a work
history, albeit limited, to the psychologist who conducted his competency evaluation.

No. 2020AP413-CRNM
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Finally, Mitchell suggests that he has an arguably meritorious claim that the circuit court
should have ordered him to pay restitution only after he is released from prison. We disagree.
Mitchell admits that while imprisoned he earns a small wage that is available to use towards his
restitution obligation. Moreover, the Department of Corrections (DOC) is authorized by statute
to collect restitution from an inmate’s prison account. See State v. Williams, 2018 WI App 20,
¶2, 380 Wis. 2d 440, 909 N.W.2d 177. “Once the [sentencing] court orders restitution, it is
within the DOC’s authority to collect it from an inmate.” Id., ¶7.
Our independent review of the record does not disclose any other potential issues
warranting discussion. We conclude that further postconviction or appellate proceedings would
be wholly frivolous within the meaning of Anders and WIS. STAT. RULE 809.32.
IT IS ORDERED that the judgment of conviction is summarily affirmed. See WIS. STAT.
RULE 809.21.
IT IS FURTHER ORDERED that Attorney Marcella De Peters is relieved of any further
representation of Paul E. Mitchell in this matter. See WIS. STAT. RULE 809.32(3).
IT IS FURTHER ORDERED that this summary disposition order will not be published.
Sheila T. Reiff
Clerk of Court of Appeals