State v. Reynaldo Rosalez

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.
June 11, 2024
Samuel A. Christensen A party may file with the Supreme Court a
Clerk of Court of Appeals petition to review an adverse decision by the
Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP1929-CR Cir. Ct. No. 2018CF3441

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

REYNALDO ROSALEZ,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: JOSEPH R. WALL and GLENN H. YAMAHIRO, Judges.
Affirmed.

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

¶1 GEENEN, J. Reynaldo Rosalez appeals from a judgment of
conviction entered on his no-contest plea to one count of second-degree sexual
assault of a child under the age of sixteen, and an order of the circuit court denying
No. 2022AP1929-CR

his motion for postconviction relief.1 Rosalez argues that he has no memory of the
events giving rise to the charge. Postconviction, Rosalez moved to withdraw his
plea based on ineffective assistance of counsel. Rosalez claims that his trial
counsel failed to inform him that, because of his amnesia, he could contest his
ability to be fairly tried, and if he had known of the availability of this defense, he
would not have pleaded no contest and would have instead taken his case to trial.
The circuit court held a Machner2 hearing, but it explicitly refused “to indulge in
the ineffective assistance analysis” because it found that Rosalez failed to prove he
had amnesia.

¶2 We conclude that the circuit court’s finding that Rosalez failed to
prove his amnesia was not clearly erroneous. Having not proved his amnesia,
Rosalez cannot prevail on his ineffective assistance of counsel claim because
counsel does not perform deficiently by failing to discuss with their client what
would have been a futile defense. See State v. Maloney, 2005 WI 74, ¶37, 281
Wis. 2d 595, 698 N.W.2d 583. Accordingly, we affirm.

BACKGROUND

¶3 According to the criminal complaint, on July 12, 2018, Rosalez
sexually assaulted his girlfriend’s ten-year-old daughter. Rosalez was arrested the
following day and subsequently charged with second-degree sexual assault of a
child under the age of sixteen.

1
The Honorable Joseph R. Wall presided over the plea hearing and sentenced Rosalez.
The Honorable Glenn H. Yamahiro presided over the postconviction proceedings.
2
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2022AP1929-CR

¶4 Rosalez pleaded no contest, and as part of the agreement, the State
made no sentencing recommendation. At the plea hearing, Rosalez represented
that he blacked out on the evening of the sexual assault and attributed it to a
combination of prescription Ambien and alcohol he had consumed. He claimed to
have no memory of sexually assaulting the victim, and for that reason, he decided
to plead no contest. The State consented, stating that a no-contest plea was
“appropriate if what the defense is proposing [is] that he doesn’t actually
remember.” Two months later, the circuit court sentenced Rosalez to ten years of
initial confinement followed by five years of extended supervision.

¶5 On March 19, 2021, Rosalez moved to withdraw his plea on the
basis of ineffective assistance of counsel. Rosalez claimed that trial counsel failed
to inform him that under State v. McIntosh, 137 Wis. 2d 339, 404 N.W.2d 557
(Ct. App. 1987), his amnesia allowed him to contest his ability to be fairly tried,
and if he had known of the availability of this defense, he would not have pleaded
no contest and would have instead taken his case to trial.

¶6 Rosalez’s motion included a report prepared by a psychologist. The
psychologist conducted tests designed to determine whether Rosalez was
“malingering,” i.e., feigning his lack of memory of the sexual assault. Based on
these tests, the psychologist concluded that Rosalez was not misrepresenting his
reported lack of memory. The circuit court held a Machner hearing at which three
witnesses testified: trial counsel, Rosalez’s psychologist, and Rosalez.

¶7 Trial counsel testified that he explored a potential involuntary
intoxication defense based on Rosalez’s alleged blackout and his prescription for
Ambien. Trial counsel learned that such a defense would be unsuccessful because
Rosalez had taken alcohol with the Ambien. See State v. Gardner, 230 Wis. 2d

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No. 2022AP1929-CR

32, 42, 601 N.W.2d 670 (Ct. App. 1999). Trial counsel knew of McIntosh, but
did not discuss it with Rosalez or pursue a defense based on amnesia.

¶8 The psychologist testified as an expert, repeating his conclusion that
“[t]here was no evidence of malingering, or faking, or exaggerating symptoms”
from Rosalez about his lack of memory. However, the psychologist clarified that
he was not affirmatively diagnosing Rosalez with amnesia. The psychologist’s
tests measured whether Rosalez was lying about his lack of memory, not whether
he suffered from amnesia.

¶9 Rosalez testified that he was originally going to go to trial, but
resigned himself to a plea after trial counsel told him that he had no available
defenses. He said that, had he known of McIntosh, he would have pursued that
defense and gone to trial. Rosalez testified that he mixed Ambien and alcohol
about once a month, but on cross-examination, he admitted that he drank two to
three times per week while taking Ambien nearly every night. At the end of the
hearing, the parties stipulated to the admission of two documents from the Ambien
manufacturer warning users that the drug could cause “anterograde amnesia” and
result in users engaging in activities “while not fully awake[.]”

¶10 The circuit court denied Rosalez’s motion. It found that Rosalez did
not prove that he had amnesia by a “clear preponderance of the evidence” as he
was required to do. It found that, without a medical diagnosis, Rosalez could not
satisfy his burden, contrasting his case with the defendant in McIntosh, who was
diagnosed with amnesia by a court-appointed psychiatrist. The circuit court also
found Rosalez not credible based on his inconsistencies about whether Ambien
had caused him to black out before and how frequently he drank alcohol with
Ambien. Because the circuit court had no “basis here to find that [Rosalez] suffers

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No. 2022AP1929-CR

from amnesia,” it concluded that it did not “have to indulge in the ineffective
assistance analysis” and denied Rosalez’s motion.

¶11 Rosalez appeals his judgment of conviction and the order denying
his motion to withdraw his plea.

DISCUSSION

¶12 We review a circuit court’s denial of a plea withdrawal motion under
the erroneous exercise of discretion standard. State v. Savage, 2020 WI 93, ¶24,
395 Wis. 2d 1, 951 N.W.2d 838. A plea withdrawal motion predicated on an
ineffective assistance of counsel claim raises a mixed question of fact and law.
Id., ¶25. To establish ineffective assistance of counsel, a defendant must prove
both (1) “that counsel’s performance was deficient” and (2) “that the deficiency
prejudiced the defense.” State v. Carter, 2010 WI 40, ¶21, 324 Wis. 2d 640, 782
N.W.2d 695 (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). We
uphold the circuit court’s findings of fact and credibility determinations unless
they are clearly erroneous. Carter, 324 Wis. 2d 640, ¶19. Whether the defendant
carried his or her burden to establish deficient performance and prejudice presents
a question of law that we review independently. Id.

¶13 To prove deficient performance, a defendant must show “that
counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed ... by the Sixth Amendment.” Savage, 395 Wis. 2d 1, ¶28 (citation and
internal quotation marks omitted; alteration in Savage). It is strongly presumed
that counsel acted within “‘the wide range of reasonable professional assistance.’”
Carter, 324 Wis. 2d 640, ¶22 (citation omitted). Importantly, “[c]ounsel does not
render deficient performance for failing to bring a ... motion that would have been
denied.” Maloney, 281 Wis. 2d 595, ¶37.

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No. 2022AP1929-CR

¶14 To prove prejudice, the 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.” Carter, 324 Wis. 2d 640, ¶37 (citation
omitted). In the context of a motion to withdraw a plea, a defendant “must show
that there is a reasonable probability that, but for counsel’s errors, he would not
have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart,
474 U.S. 52, 59 (1985); see also State v. Bentley, 201 Wis. 2d 303, 312, 548
N.W.2d 50 (1996). We need not “address both components of the inquiry if the
defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697.

¶15 Rosalez argues that under McIntosh, his amnesia allowed him to
contest his ability to be fairly tried, and if he had known of the availability of this
defense, he would not have pleaded no contest and would have instead taken his
case to trial. Whether an amnestic defendant can receive a fair trial is subject to a
multifactor analysis first adopted in McIntosh. Courts consider:

(1) The extent to which the amnesia affected the
defendant’s ability to consult with and assist his [or her]
lawyer.

(2) The extent to which the amnesia affected the
defendant’s ability to testify on his own behalf.

(3) The extent to which the evidence in suit could be
extrinsically reconstructed in view of the defendant’s
amnesia[.]

(4) The extent to which the [State] assisted the defendant
and his [or her] counsel in that reconstruction.

(5) The strength of the prosecution’s case, [including]
whether the [State]’s case is such as to negate all
reasonable hypotheses of innocence. If there is any
substantial possibility that the accused could, but for his [or
her] amnesia, establish [a] defense, it should be presumed
that he [or she] would have been able to do so.

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No. 2022AP1929-CR

(6) Any other facts and circumstances which would
indicate whether or not the defendant had a fair trial.

Id., 137 Wis. 2d at 349-50 (quoting Wilson v. United States, 391 F.2d 460, 463-64
(D.C. Cir. 1968)).

¶16 However, before the McIntosh framework applies, a defendant must
show that “permanent amnesia has been medically established[.]” Id., 137 Wis.
2d at 348. A defendant bears the burden of establishing his or her amnesia by a
“clear preponderance of the credible evidence.” Muench v. State, 60 Wis. 2d 386,
392-93, 210 N.W.2d 716 (1973), overruled on other grounds by Schimmel v.
State, 84 Wis. 2d 287, 267 N.W.2d 271 (1978), overruled by Steele v. State, 97
Wis. 2d 72, 294 N.W.2d 2 (1980).3

¶17 In McIntosh, the defendant received severe head injuries in an
automobile accident. Id., 137 Wis. 2d at 346. McIntosh was charged with
vehicular homicide, but he claimed that he was suffering from amnesia and had no
memory of the incident. Id. at 341, 346. Prior to the trial, he moved to suspend
the proceedings because, as a result of his amnesia, he would be unable to assist or
testify in his defense. Id. at 346. The circuit court appointed a psychiatrist who
concluded that

(1) McIntosh’s amnesia was consistent with his injuries;
(2) there was “no reason to doubt the permanence of a
significant part of [his] memory loss”; and (3) while
3
The cases following Muench v. State, 60 Wis. 2d 386, 210 N.W.2d 716 (1973) dealt
with an issue unrelated to this appeal, namely, whether to apply the rule that a defendant could
submit psychiatric evidence purporting to show that he or she lacked the mental ability to form
the requisite state of mind only if he or she pleaded not guilty by reason of mental disease or
defect. Muench applied the rule, Schimmel v. State, 84 Wis. 2d 287, 267 N.W.2d 271 (1978)
dissolved the rule, and Steele v. State, 97 Wis. 2d 72, 294 N.W.2d 2 (1980) restored the rule.
Neither Schimmel nor Steele affected the standard of proof applicable to a defendant’s claim of
amnesia as set forth in Muench.

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No. 2022AP1929-CR

McIntosh was unable to recall the details of the accident, he
was nonetheless “able to assist counsel in his own
defense ... to understand the nature of legal proceedings and
charges against him ... [and] otherwise able to work
effectively with counsel.”

Id. (alterations in McIntosh). The court denied the motion but invited McIntosh
to raise the issue after the trial in the event of a conviction because the court would
then “be in a much better position to weigh the testimony in determining whether
or not amnesia did deprive Mr. McIntosh of due process.” Id. at 347.

¶18 Importantly, the fact of McIntosh’s “permanent amnesia [had] been
medically established,” but the court denied the motion to suspend proceedings
because McIntosh was competent “in the sense of understanding the charges and
procedures and assisting in the defense[.]” Id. at 348-49. The psychiatrist opined
that a significant portion of McIntosh’s memory loss was permanent, and the
permanency of McIntosh’s condition appears to have been undisputed. See id. at
346 n.1.

¶19 In contrast, the defendant claiming amnesia in Muench failed to
establish the fact of his amnesia, and therefore, the due process issues considered
in McIntosh were not present. Muench, 60 Wis. 2d at 392-93. Muench was
charged with first-degree murder for a stabbing incident during a fight outside of a
bar, but he claimed that he had no memory of the event because he received at
least two blows to the head during the altercation. Id. at 387-89, 392. Our
supreme court concluded that Muench was not deprived of due process because
“[t]here [was] no medical evidence of anything else in the record, except the
subjective statements of the defendant and the observations and hearsay testimony
of his associate ... to indicate any loss of memory.” Id. at 392. It explained that
“[t]he claim of amnesia is one easily fabricated after the event by one seeking to

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No. 2022AP1929-CR

avoid responsibility for his [or her] acts.” Id. Thus, a due process claim
predicated on amnesia “is an affirmative defense that must be established by the
defendant by a clear preponderance of the credible evidence.” Id. at 393.4

¶20 Here, Rosalez’s psychologist concluded only that, based on the tests
conducted, “[t]here was no evidence of malingering, or faking, or exaggerating
symptoms” from Rosalez about his lack of memory. The psychologist specifically
testified that he was not affirmatively diagnosing Rosalez with amnesia, and there
was no evidence on the issue of permanency presented at all, whether in the
psychologist’s report or his testimony. The psychologist clarified that the tests
measured only whether Rosalez was lying about his lack of memory, not whether
he suffered from amnesia. Additionally, Rosalez was impeached with respect to
his history of blacking out while on Ambien and as to how often he mixed Ambien
with alcohol, damaging his credibility.

¶21 It is not clearly erroneous to conclude, as the circuit court did here,
that without a medical diagnosis on the record, Rosalez did not prove his amnesia
by a clear preponderance of the credible evidence. Not only did Rosalez lack a
medical diagnosis, he presented no evidence on the issue of permanency. Id., 60
Wis. 2d at 392 (citing a lack of “medical evidence” of amnesia); McIntosh, 137
Wis. 2d at 346 n.1 & 348 (observing that, in that case, the defendant’s “permanent
amnesia [had] been medically established” by a court-appointed psychiatrist).

4
The court went on to observe other facts supporting its conclusion that Muench’s
claimed amnesia did not present due process concerns, including that Muench “did in fact consult
with his attorney and did assist in his own defense,” and that based on the testimony at trial, there
was no “question as to where, when, or what acts of the defendant produced the fatal result.”
Muench, 60 Wis. 2d at 393.

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No. 2022AP1929-CR

¶22 The circuit court’s finding that Rosalez failed to prove his amnesia
was not clearly erroneous. As a consequence, Rosalez would not have been able
to invoke McIntosh, and trial counsel does not perform deficiently by failing to
discuss with him a defense that was not available. Maloney, 281 Wis. 2d 595,
¶37. Accordingly, we affirm the judgment of conviction and the order denying
postconviction relief.

By the Court.—Judgment and order affirmed.

Not recommended for publication in the official reports.

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