State v. Michele M. Ford

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.
October 31, 2023
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 Nos.
2022AP187-CR Cir. Ct. Nos. 2021CM1807
2021CM3452
2022AP188-CR
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
MICHELE M. FORD,
DEFENDANT-APPELLANT.
APPEAL from orders of the circuit court for Milwaukee County:
JACK L. DAVILA, Judge. Reversed and remanded for further proceedings.
¶1 DUGAN, J.1 Michele M. Ford appeals from orders of the circuit
court finding that she was incompetent to proceed in the criminal cases filed
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
Nos. 2022AP187-CR
2022AP188-CR
against her. On appeal, Ford argues that she received ineffective assistance of
counsel when trial counsel participated in a competency evaluation and spoke to
the evaluator about counsel’s impressions of Ford’s mental state. Upon review,
this court agrees, and therefore, this court reverses the circuit court’s order and
remands this matter for further proceedings as described below.
BACKGROUND
¶2 Ford was arrested on May 21, 2021, and on June 29, 2021, she was
charged with disorderly conduct, with use of a dangerous weapon, for a
disturbance at her apartment complex during which multiple witnesses stated that
Ford stole a package, began yelling profanities, threw a potted plant, and
threatened to kill another tenant with a knife. As further alleged in the criminal
complaint, when police arrived at the scene, they attempted to make contact with
Ford. When Ford refused to allow the police to enter, they forced their way into
her apartment, the police Tazed Ford, and then they took Ford into custody upon
observing Ford standing in the entry with a large black knife and appearing to
have blood covering her face.
¶3 Ford failed to appear at her originally scheduled initial appearance
on July 27, 2021; however, after she was returned on an arrest warrant, Ford made
her second scheduled initial appearance on August 4, 2021.
¶4 At a hearing held on August 26, 2021, the State raised the issue of
Ford’s competency, and the circuit court ordered that Ford be evaluated to
determine whether she was competent for purposes of continuing with the criminal
proceedings.
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¶5 After Ford missed two scheduled appointments for the evaluation
and another court appearance, she was arrested again and charged on October 9,
2021, with bail jumping. Ford then remained in custody for additional court
appearances that month, as well as her initial competency evaluation.
¶6 In the initial competency evaluation dated October 21, 2021, the
evaluator stated that he was “unable to provide the court with an opinion to a
reasonable degree of medical certainty at this time” and “recommend[ed] the court
remand Ms. Ford for an inpatient assessment of her competency.” Pursuant to a
subsequent court order for an inpatient evaluation, Ford was sent to Mendota
Mental Health Institute and evaluated again in November 2021. At this time, the
evaluator concluded that Ford lacked substantial mental capacity to understand the
proceedings and assist in her own defense, but was likely to be restored to
competency within the statutory period. At a hearing held on November 11, 2021,
the circuit court found Ford incompetent based on the report and ordered inpatient
treatment at Mendota. In its oral ruling, the circuit court specifically highlighted
the portion of the report indicating that Ford would struggle to work
collaboratively with trial counsel and assist in developing a legal strategy to
resolve her criminal charges. A written order to that effect was entered on
November 12, 2021.
¶7 Following treatment, Ford was later found competent at a hearing
held on January 31, 2022, and the proceedings were reinstated. On February 7,
2022, Ford filed a notice of appeal of the circuit court’s order finding her
incompetent.
¶8 Since the time Ford filed her notice of appeal, Ford failed to appear
for another court date, and her competency was revisited. At a hearing on
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August 19, 2022, the proceedings were again suspended following a finding that
Ford was incompetent to proceed. The proceedings remained suspended until the
circuit court ordered the proceedings to be administratively closed as a result of
the passing of the maximum penalty time.2
DISCUSSION
¶9 On appeal, Ford argues that trial counsel was ineffective when she
participated in the evaluation and provided a statement to the evaluator about
Ford’s competency. In response, the State raises several arguments that this court
need not reach the issue of ineffective assistance of counsel, including that the
notice of appeal was not timely filed and that this appeal is moot.
I. Timeliness of the Notice of Appeal
¶10 The State argues that the notice of appeal was not filed within the
deadline set by WIS. STAT. § 808.04(1). More specifically, the State argues that
the forty-five day deadline found in § 808.04(1) applies to Ford’s case because of
the notice generated by the electronic filing system for the circuit court’s written
order entered on November 12, 2021, and the presence of Ford’s attorneys at the
hearing at which the oral incompetency ruling was rendered. Thus, the State
argues that the deadline for Ford to file her notice of appeal was December 27,
2
This court notes that these facts are not contained in the record, as they occurred after
Ford filed her notice of appeal. Rather, the State asks that this court take judicial notice of these
facts as they are reflected on CCAP. See Kirk v. Credit Acceptance Corp., 2013 WI App 32, ¶5
n.1, 346 Wis. 2d 635, 829 N.W.2d 522 (recognizing that CCAP, an acronym of Wisconsin’s
Consolidated Court Automation Programs, reflects information entered by court staff of which
the court may take judicial notice).
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2021, and Ford’s notice of appeal was late when it was filed on February 7, 2022.
This court disagrees.
¶11 Pursuant to WIS. STAT. § 808.04(1),
[a]n appeal to the court of appeals must be initiated within
45 days of entry of a final judgment or order appealed from
if written notice of the entry of a final judgment or order is
given within 21 days of the final judgment or order as
provided in s. 806.06(5), or within 90 days of entry if
notice is not given, except as provided in this section or
otherwise expressly provided by law.
In this case, the final judgment or order appealed from is the circuit court’s written
order dated November 12, 2021, finding Ford incompetent to proceed with the
criminal charges against her. Thus, the question becomes whether “written
notice” of the November 21, 2021 order was given such that the forty-five day
deadline to file the notice of appeal applies to Ford’s case.
¶12 The State argues that written notice was provided because of the
notice of activity that was generated by the electronic filing system when the
circuit court entered the November 12, 2021 written order and the presence of
Ford’s attorneys at the hearing on November 11, 2021, at which the circuit court
made its oral ruling. The notice of activity from the electronic filing system and
the presence of Ford’s attorneys at the hearing, however, does not constitute the
written notice contemplated by WIS. STAT. § 808.04(1).3 See WIS. STAT.
§ 806.06(3) (“After an order or judgment is entered, either party may serve upon
the other a written notice of entry containing the date of entry.”); Soquet v.
3
Indeed, as Ford argues, if the notice of activity generated by the electronic filing system
constituted written notice, the forty-five day deadline would always apply because the notice of
activity is always generated from the electronic filing system.
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Soquet, 117 Wis. 2d 553, 554, 345 N.W.2d 401 (1984) (“[T]he period for filing an
appeal is shortened to forty-five days only if there has been a timely filing of a
formal notice of entry of judgment”). Rather, to trigger the forty-five day
deadline, “a formal, captioned and signed notice of entry of judgment stating the
date the judgment was entered must be served on the opposing party within
twenty-one days of the entry date.” Soquet, 117 Wis. 2d at 561.
¶13 Thus, in the absence of the requisite written notice served on Ford by
the State, this court concludes that the ninety day deadline to file an appeal applies
to Ford’s case, and Ford’s filing her notice of appeal on February 7, 2022, was
timely.
II. Mootness
¶14 The State additionally argues that Ford’s case is moot because Ford
was treated to competency since the time of the November 12, 2021 order
underlying her appeal and the underlying criminal cases have been
administratively closed. Thus, the State argues that Ford’s requested relief “to
reverse the finding of incompetency” has already been granted and a decision in
this case will have no force, meaning, or impact on the underlying controversy.
¶15 In response, Ford cites to Sauk County v. S.A.M., 2022 WI 46, 402
Wis. 2d 379, 975 N.W.2d 162, and argues that her case is not moot because her
liability for the cost of her care during her commitment is a collateral consequence
that precludes the State’s mootness argument. This court agrees with Ford.
¶16 “An issue is moot when its resolution will have no practical effect on
the underlying controversy.” Portage Cnty. v. J.W.K., 2019 WI 54, ¶11, 386
Wis. 2d 672, 927 N.W.2d 509 (citation omitted). “Appellate courts generally
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decline to reach moot issues[.]” Id., ¶12. If an appeal raises moot issues, it should
be dismissed. Id. Whether an appeal is moot is a question of law that this court
reviews de novo. S.A.M., 402 Wis. 2d 379, ¶17.
¶17 In S.A.M., our supreme court addressed the mootness of an expired
recommitment order and stated, “[W]e hold that at least two such consequences
render an appeal of an expired recommitment order not moot: (1) the restriction of
one’s constitutional right to bear arms; and (2) the liability for the cost of one’s
care.” Id., ¶¶2-3. The court continued that the expired recommitment order was
not moot because both situations were presented. Id., ¶3.
¶18 This court concludes that Ford’s case is analogous to the situation
presented in S.A.M. because Ford similarly raises the issue of the liability for the
cost of her care during commitment as a collateral consequence of the circuit
court’s November 12, 2021 order. See WIS. STAT. § 46.10(2) (imposing “the cost
of the care, maintenance, services and supplies” on a person committed under
WIS. STAT. § 971.14). Should the order finding Ford incompetent be vacated,
Ford would no longer be responsible for those costs. See S.A.M., 402 Wis. 2d
379, ¶24. Consequently, this court rejects the State’s argument and concludes that
Ford’s case is not moot.
III. Ineffective Assistance of Counsel
¶19 Ford argues that trial counsel was ineffective as a result of her
participation in the evaluation performed at Mendota. Specifically, Ford takes
issue with the following participation of counsel reflected in the evaluation:
On November 3, 2021, this writer contacted public
defender Paige Styler to inquire about her experiences
working with Ms. Ford. Attorney Styler indicated
Ms. Ford appears to have procedural understanding, but she
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was concerned that the approach Ms. Ford wanted to take
with her case was not always based on sound logic or
appropriate legal strategy. Attorney Styler indicated
Ms. Ford did not want to embrace all of her legal charges
as she believed her “stalker’ was to blame. Attorney Styler
also noted concern regarding Ms. Ford’s mental health and
well-being as she had observed some unusual behaviors,
including Ms. Ford reading a book in court, interrupting her
attorneys, giving them unusual legal advice outside of her
area of previous practice, and using legal jargon
incorrectly.
The evaluator additionally commented on her conversation with Ford’s counsel
saying, “This writer’s experience along with the discussion with Ms. Ford’s
attorney raises significant concern regarding her present ability to rationally
consult with her attorney.” Further, the evaluator noted, “Ms. Ford was not a
criminal attorney, yet she has offered legal advice to her attorneys that is not based
on sound logic and has been resistant to exploring other options.”
¶20 Ford argues that trial counsel breached her duty of client
confidentiality when she spoke with the evaluator, particularly in light of the fact
that Ford wanted to be found competent to proceed.4 Thus, Ford argues that trial
counsel performed deficiently and, pursuant to Weaver v. Massachusetts, 582
U.S. 286 (2017), prejudice is presumed from trial counsel’s deficient performance.
Alternatively, Ford argues that she can show prejudice because it is clear that the
evaluator relied on the information provided by trial counsel in reaching the
conclusion that Ford was incompetent to proceed.
4
In fact, when asked at the November 11, 2021 hearing if the defense would be
contesting the evaluator’s report, trial counsel stated, “Yes, Ms. Ford is indicating she is
competent.” Trial counsel additionally waived any testimony and requested that the circuit court
base its decision entirely on the report.
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¶21 A defendant must show two elements to establish that his or her
counsel’s assistance was constitutionally ineffective: (1) counsel’s performance
was deficient; and (2) the deficient performance resulted in prejudice to the
defense. State v. Balliette, 2011 WI 79, ¶21, 336 Wis. 2d 358, 805 N.W.2d 334.
“An ineffective assistance of counsel claim presents a mixed question of fact and
law.” State v. Pico, 2018 WI 66, ¶13, 382 Wis. 2d 273, 914 N.W.2d 95. “We will
not reverse the circuit court’s findings of fact unless they are clearly erroneous.”
Id. “We independently review, as a matter of law, whether those facts
demonstrate ineffective assistance of counsel.” Id.¶22 To resolve the matter, this court turns to State v. Meeks, 2003 WI
104, 263 Wis. 2d 794, 666 N.W.2d 869, and concludes that trial counsel’s
participation in the evaluation and the statements provided violated the attorney-
client privilege. Consequently, this court also concludes that trial counsel’s
performance was deficient and Ford was prejudiced.
¶23 In Meeks, our supreme court concluded that “an attorney’s opinions,
perceptions, and impressions relating to a former client’s mental competency fall
within the definition of a confidential communication pursuant to WIS. STAT.
§ 905.03(2) and SCR 20:1.6” and that “such communications may not be revealed
without the consent of the client.”5 Id., ¶2. While this court recognizes that
Meeks addressed the situation of an attorney testifying at a hearing about a former
client, the underlying principle remains the same—the attorney’s opinions,
perceptions, and impressions about a client’s mental competency are protected by
5
WISCONSIN STAT. § 905.03 sets forth the attorney-client privilege, and SCR 20:1.6. is a
specific rule adopted by the supreme court that outlines situations in which an attorney can reveal
information without consent of the client.
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the attorney-client privilege, whether the client is former or current. See id., ¶¶7-8,
40. “While the contents of confidential conversations with [Ford] were not
revealed …, [trial counsel’s] expressed opinions, perceptions, and impressions of
[Ford’s] competency were premised upon and inextricably linked to confidential
communications.” See id., ¶58. Consequently, trial counsel’s opinions,
perceptions, and impressions of Ford’s mental competency are protected by the
attorney-client privilege.
¶24 Thus, this court concludes that trial counsel’s participation in Ford’s
evaluation was a breach of the attorney-client privilege, and trial counsel’s
performance was deficient as a result of that breach. See Strickland v.
Washington, 466 U.S. 668, 687 (1984) (stating that deficient performance
“requires showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant”).
¶25 Further, this court concludes that Ford was prejudiced by trial
counsel’s performance as evidenced by the evaluator’s reliance on the information
provided by trial counsel, trial counsel’s request to base the competency decision
entirely on the report, and Ford’s desire to be found competent. To show
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. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694. Given the evaluator’s reliance on trial
counsel’s statements and then the circuit court’s sole reliance on the evaluator’s
report, this court concludes that there is a reasonable probability that the outcome
of Ford’s competency hearing would have been different had trial counsel’s
statements not been considered in determining Ford’s competency.
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¶26 Having so concluded, this court further concludes, as our supreme
court did in Meeks, that the appropriate remedy is a nunc pro tunc competency
hearing where Ford’s competency is evaluated without the benefit of trial
counsel’s opinions, perceptions, and impressions of Ford’s mental competency.6
See id., 263 Wis. 2d 794, ¶61; see also State v. Smith, 2016 WI 23, ¶¶44-45, 367
Wis. 2d 483, 878 N.W.2d 135 (“[T]he remedy is not to vacate the judgment of
conviction and order a new trial. Rather, the remedy is a remand to determine
whether a meaningful retrospective competency hearing can be held.”). Thus, this
court remands this matter for the circuit court to hold a hearing addressing Ford’s
competency in which trial counsel’s statements to the evaluator are not considered
when determining whether Ford was competent to proceed with the criminal
charges filed against her.
By the Court.—Orders reversed and remanded for further
proceedings.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.
6
The State argues that Ford failed to preserve her argument of ineffective assistance of
counsel by failing to raise the argument in the circuit court. However, an incompetency finding is
a civil matter, and it is subject to its own rules. See State v. Scott, 2018 WI 74, ¶¶27-34, 382
Wis. 2d 476, 914 N.W.2d 141.
11