Vladimir Gorokhovsky v. State Public Defender Office

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.
March 23, 2021
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2018AP1677 Cir. Ct. No. 2017CV13552
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
VLADIMIR GOROKHOVSKY,
PETITIONER-APPELLANT,
V.
STATE PUBLIC DEFENDER OFFICE AND BOARD OF
DIRECTORS OF THE STATE PUBLIC DEFENDER OFFICE,
RESPONDENTS-RESPONDENTS.
APPEAL from an order of the circuit court for Milwaukee County:
WILLIAM S. POCAN, Judge. Affirmed.
Before Brash, P.J., Blanchard and Dugan, JJ.
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. 2018AP1677
¶1 PER CURIAM. Vladimir Gorokhovsky appeals the circuit court’s
order affirming the decision of the State Public Defender Board.1 He argues:
(1) the Board improperly failed to consider client satisfaction surveys that were
favorable to him; (2) the Board failed to provide a rational explanation for
choosing to decertify him for a period of two years; (3) the Board violated his
substantive due process rights and his rights under WIS. ADMIN. CODE § PD
1.08(1) (through February 2021);2 and (4) the Board’s factual findings with regard
to one of the cases in which he acted as appointed counsel were not supported by
substantial evidence. We affirm.
¶2 The State Public Defender decided to permanently decertify
Gorokhovsky from the list of attorneys eligible to receive appointments based on
his lack of candor with the circuit court, his poor performance, and his lack of
preparation in representing his clients. Gorokhovsky appealed the decision to the
State Public Defender Board. The Board affirmed decertification, but it reduced
the length to two years. The circuit court affirmed the Board’s decision.
Gorokhovsky now appeals to this court.
¶3 Gorokhovsky argues that the Board improperly failed to consider
client satisfaction surveys that he submits were favorable to him, which were
received by the Board as Exhibit 11 at its hearing dated November 16, 2017.
Gorokhovsky’s argument is premised on the fact that Exhibit 11 was not included
1
We review the decision of the Board, not the circuit court. Gabler v. Crime Victim
Rights Bd., 2017 WI 67, ¶24, 376 Wis. 2d 147, 897 N.W.2d 384.
2
All references to the Administrative Code are to the February 2021 Register.
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No. 2018AP1677
in the record that the Board transmitted to the circuit court. The Board
acknowledges that the exhibit has been misplaced.
¶4 As a preliminary matter, we note that the fact that the surveys were
misplaced after the Board’s hearing does not necessarily mean that the Board did
not consider the surveys in rendering its decision. Regardless, Gorokhovsky fails
to show how client surveys expressing some form of satisfaction based on the
clients’ perceptions could have been relevant to the reasons that the Board
decertified Gorokhovsky. The Board decertified him for his lack of candor with
the circuit court in State v. Davidson, Milwaukee County Circuit Court case Nos.
15CM2891 and 16CM57, his inadequate understanding of criminal procedure in
State v. Clay, Milwaukee County Circuit Court case No. 16CF2010, and his
failure to take responsibility for his shortcomings. Assuming without deciding
that many of Gorokhovsky’s clients expressed satisfaction, Gorokhovsky fails to
persuade us that this would have been relevant to the specific issues evaluated by
the Board. Therefore, we reject Gorokhovsky’s argument that he is entitled to
relief because the Board improperly failed to consider his client satisfaction
surveys, and we also reject any implicit alternative argument that the Board was
required to give the surveys weight in his favor.
¶5 Separately, Gorokhovsky argues that the Board did not provide an
adequate explanation as to why it decided to decertify him for a period of two
years and not for a lesser period. The Board has the power to affirm, reverse, or
modify certification decisions of the State Public Defender pursuant to WIS.
ADMIN. CODE § PD 1.05(6). WISCONSIN STAT. § 227.47(1) (2019-20) provides
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No. 2018AP1677
that agency decisions “shall be in writing accompanied by findings of fact and
conclusions of law.”3
¶6 The Board issued findings of fact and conclusions of law that
provide ample explanation for its decision. Although the Board did not explicitly
explain why it chose to be more lenient than the State Public Defender, its
decision to reduce the term is supported by specific factual findings in
Gorokhovsky’s favor, and Gorokhovsky fails to persuade us that the Board was
obligated to settle on a period shorter than two years based on the Board’s findings
as a whole.
¶7 Separately, Gorokhovsky argues that the State Public Defender
violated his substantive due process rights and his rights under WIS. ADMIN. CODE
§ PD 1.08(1) by presenting evidence from the Board’s confidential file regarding
his prior suspensions and prior investigations about him. Section PD 1.08(1),
which addresses access to files held by the State Public Defender’s Office,
provides:
The state public defender may not disclose the
contents or substance of any review or investigation prior
to issuing a decision under s. PD 1.03, unless ordered to do
so by the chairperson of the public defender board or a
court, or unless the attorney who is the subject of the
review or investigation first discloses the contents or the
substance of the review or investigation.
¶8 This rule has the obvious intent of limiting the State Public
Defender’s ability to release information outside necessary channels about an
investigation before it issues its decision in a matter. It would be absurd to
3
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
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No. 2018AP1677
interpret this rule to preclude the State Public Defender from disclosing its
investigation files to the Board, the entity charged with reviewing the propriety of
the State Public Defender’s decision; the Board could not be prohibited from
considering information over which it has control and authority to release to
others. Further, even assuming a violation of this administrative rule,
Gorokhovsky has not presented a cogent argument that his substantive due process
rights would have been implicated by a violation. The United States Supreme
Court explained long ago that “[m]ere violation of a state statute does not infringe
the federal Constitution.” Snowden v. Hughes, 321 U.S. 1, 11 (1944).
¶9 Separately, Gorokhovsky argues that the Board’s factual findings
regarding Clay, Milwaukee County Circuit Court case No. 16CF2010, were not
supported by substantial evidence. An agency’s factual findings must be
supported by substantial evidence in the record. WIS. STAT. § 227.57(6). “[A]
court shall not substitute its judgment for that of the agency as to the weight of the
evidence on any disputed finding of fact.” Id.
¶10 The Board made the following factual findings regarding Clay: the
State Public Defender had received complaints about Gorokhovsky’s performance
in multiple cases, including Clay; Gorokhovsky improperly
attempted to argue at a preliminary hearing that the
criminal complaint had to show probable cause for a stop
and seizure of a client, and … the court had to explain to
[him] that the contents of a criminal complaint are not an
issue to decide at a preliminary hearing.
Gorokhovsky’s representation in Clay demonstrated that he lacked an adequate
understanding of criminal procedure.
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No. 2018AP1677
¶11 These factual findings are well supported by the Board hearing
transcripts. The transcripts demonstrate that Gorokhovsky did not understand
basic principles of criminal procedure. They show that Gorokhovsky improperly
attempted to argue the insufficiency of the allegations within the four corners of
the complaint after evidence had been taken at the preliminary hearing, and that he
improperly attempted to argue suppression issues at the preliminary hearing. They
also show that Gorokhovsky attempted to impeach a police officer at the
suppression hearing with the officer’s testimony at the preliminary hearing based
on Gorokhovsky’s memory of the officer’s testimony, as opposed to through use
of a transcript of the preliminary hearing testimony, because Gorokhovsky had not
ordered the preliminary hearing transcript. We reject Gorokhovsky’s claim that
the Board’s factual findings regarding Clay were not supported by substantial
evidence.4
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
4
Gorokhovsky asserts in his brief that he did file a motion to dismiss the complaint prior
to the preliminary hearing in State v. Clay, Milwaukee County Circuit Court case No. 16CF2010,
in support of the idea that he had a proper basis to argue that the complaint was insufficient on its
face. However, this court’s review of an agency’s decision is “confined to the record.” WIS.
STAT. § 227.57(1). Gorokhovsky’s assertion is not support by any evidence in the record.
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