                                                                2018 WI 37

                  SUPREME COURT               OF   WISCONSIN
CASE NO.:               2016AP619
COMPLETE TITLE:         In the matter of the mental commitment of J.M.:

                        Winnebago County,
                                  Petitioner-Respondent,
                             v.
                        J. M.,
                                  Respondent-Appellant-Petitioner.

                             REVIEW OF A DECISION OF THE COURT OF APPEALS
                              Reported at 372 Wis. 2d 834, 890 N.W.2d 49
                                         (2016 – Unpublished)

OPINION FILED:          April 18, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          November 7, 2017

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Winnebago
   JUDGE:               Karen L. Seifert

JUSTICES:
   CONCURRED:           A.W. BRADLEY, J., concurs (opinion filed).
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:


       For the respondent-appellant-petitioner, there were briefs
and an oral argument by Colleen D. Ball, assistant state public
defender.


       For the petitioner-respondent, there was a brief and oral
argument by James A. Kearney, assistant corporation counsel.


       An amicus        curiae brief was filed on behalf of National
Disability          Rights    Network   by   Kendall   W.   Harrison,   Bryan   J.
Cahill, Allison W. Reimann, and Godfrey & Kahn, S.C., Madison.
                                                                             2018 WI 37
                                                                     NOTICE
                                                     This opinion is subject to further
                                                     editing and modification.   The final
                                                     version will appear in the bound
                                                     volume of the official reports.
No.    2016AP619
(L.C. No.   2015ME617)

STATE OF WISCONSIN                               :            IN SUPREME COURT

In the matter of the mental commitment of J.M.



Winnebago County,
                                                                          FILED
             Petitioner-Respondent,
                                                                     APR 18, 2018
      v.
                                                                        Sheila T. Reiff
J. M.,                                                               Clerk of Supreme Court


             Respondent-Appellant-Petitioner.




      REVIEW of a decision of the Court of Appeals.                     Affirmed.


      ¶1     SHIRLEY     S.   ABRAHAMSON,   J.       This     review       involves       a

Chapter     51   commitment-extension       proceeding.           The      unpublished

decision    of   the     court   of   appeals    affirmed       an     order     of    the

circuit court for Winnebago County, Karen L. Seifert, Judge,
                                                                                 No.        2016AP619



denying J.M.'s motion for post-disposition relief.1                                   J.M. seeks

relief, claiming ineffective assistance of counsel.

     ¶2        Three questions are presented to this court:

     ¶3        First, does J.M. have a statutory right to effective

assistance      of     counsel      at     a    Chapter          51    commitment-extension

proceeding, and if so, what standard should apply in evaluating

a claim of ineffective assistance of counsel?

     ¶4        Second, did the failure of J.M.'s trial counsel to

object    to,       prevent   the    admission            of,    or    request        a     curative

instruction regarding evidence presented to the jury of J.M.'s

status    as    a    prisoner    (including           J.M.'s          wearing    prison        garb)

constitute ineffective assistance of counsel?

     ¶5        Third,    is     J.M.       entitled             to     a   new    Chapter         51

commitment-extension          proceeding             in    the        interest        of     justice

because the jury was repeatedly exposed to evidence of J.M.'s

status as a prisoner and the circuit court gave conflicting jury

instructions?

     ¶6        We respond as follows to these questions:
     ¶7        First,    J.M.       had    a        statutory         right      to        effective

assistance      of    counsel    in       his   Chapter          51    commitment-extension

hearing.       The legislature has provided that the subject of every

civil commitment proceeding is entitled to be "represented by

adversary counsel."           Wis. Stat. § 51.20(3) (2015-16).2                            When the
     1
       Winnebago Cnty. v. J.M., No. 2016AP619, unpublished slip
op. (Wis. Ct. App. Nov. 9, 2016).
     2
       All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.


                                                2
                                                                 No.    2016AP619



legislature provides the right to be "represented by counsel,"

the     legislature     intends    that   right    to    include       effective

assistance of counsel.        In re M.D.(S)., 168 Wis. 2d 995, 1004,

485 N.W.2d 52 (1992).        The standard set forth in Strickland v.

Washington, 466 U.S. 668 (1984), is the correct standard for

evaluating a claim of ineffective assistance of counsel in a

commitment-extension hearing.

      ¶8       Second, given the overwhelming evidence presented by

Winnebago County at the commitment-extension proceeding, J.M.

has not shown that a reasonable probability exists that the

result of the proceeding would have been different had his trial

counsel's      performance   not   been   allegedly     deficient      regarding

J.M.'s appearance in prison garb.

      ¶9       Third, J.M. has not established that he is entitled to

a new trial under Wis. Stat. § 751.06 on the ground that his

wearing of prison garb during the trial so distracted the jury

"that    the    real   controversy   [was]   not   []    fully   tried,"     and

justice     was     miscarried.      Moreover,     the     circuit       court's
conflicting jury instructions likewise do not entitle J.M. to a

new trial in the interest of justice.

      ¶10      Accordingly, we affirm the decision of the court of

appeals.

                                      I




                                      3
                                                                     No.    2016AP619



       ¶11    The facts are undisputed for purposes of this review.3

On November 20, 2014, J.M. was involuntarily committed for a

period of one year pursuant to Wis. Stat. § 51.20.                         In 2015,

Winnebago County filed a petition to extend J.M.'s commitment.

J.M. requested and received a jury trial on the petition.

       ¶12    Prior   to    trial,   J.M.'s     counsel    asked    the    Wisconsin

Resource Center (where J.M. was being held) to ensure that J.M.

wore civilian clothes on the day of the trial on his petition.

Despite his counsel's request and for reasons not in the record,

J.M.       appeared   at    his   jury    trial     dressed    in   prison    garb,

shackled,      and    accompanied    by   two      uniformed   guards      from   the

Department of Corrections.            J.M.'s trial counsel did not seek a

continuance      when      J.M.   appeared    in    his   prison    garb    but   did

persuade the circuit court to have J.M.'s shackles removed.4

       ¶13    During voir dire, J.M.'s trial counsel drew attention

to J.M.'s prison garb:

       The kind of apparel that [J.M.'s] wearing, he's an
       inmate of the Wisconsin Correctional system, but this

       3
       On November 20, 2017, J.M. filed a motion to strike
certain facts asserted by Winnebago County during oral argument
before this court. On December 6, 2017, Winnebago County filed
a response stating that it concurs with J.M.'s request that this
court not consider any facts stated by Winnebago County during
oral argument that are not part of the record.

     J.M.'s motion is granted.      Facts asserted by Winnebago
County during oral argument that do not appear in the record are
not considered by the court in resolving the instant case.
       4
       J.M. was required to wear a stun belt around his ankle,
but the stun belt was not visible to the jury.


                                          4
                                                                           No.     2016AP619


       isn't a criminal case, as the judge had advised you,
       this is one involving a mental commitment for him.

       Does anyone feel because of the fact that he's an
       inmate with the correctional system that they wouldn't
       be able to give a fair opinion or evaluate things
       fairly?
       ¶14   J.M.'s     trial      counsel      once    again       addressed       J.M.'s

prison garb during opening statements:

       As I mentioned earlier, [J.M.] is an inmate of the
       Wisconsin correctional system.   He was transferred to
       the Wisconsin Resource Center right next to the
       Winnebago Mental Health Institute and he's receiving
       treatment and care there. It's my understanding that
       he's likely or they developed plans to try to transfer
       him back into the regular community of prisoners in
       one of the facilities here in the state, that's the
       goal they try to reach and that's what he's in prison
       for or what he's involved in, that's really not our
       affair, but should commitment be imposed upon [J.M.]
       ¶15   After opening statements, the County called two expert

witnesses to testify.         Both had met with and evaluated J.M.

       ¶16   First, the County called Dr. Marshall Bales, a medical

doctor board certified in general psychiatry.                         Dr. Bales based

his testimony on the following:                (1) an examination of J.M. that

took    place    on    November     11,    2015;       (2)    a     review    of    J.M.'s

treatment       records;     and    (3)   a     discussion          with     correctional

officers who had interacted with J.M.

       ¶17   Dr.   Bales     testified     at    trial       that    J.M.'s       diagnoses

were     schizophrenia        and       antisocial           personality          disorder.

Further, Dr. Bales testified that "[i]t was abundantly clear"

after   meeting       J.M.   for    a   brief    time    that       J.M.     is    severely

mentally ill.



                                           5
                                                                                   No.    2016AP619



      ¶18    During his testimony, Dr. Bales twice reiterated that

he   terminated       the    evaluation           of     J.M.       early    because       J.M.'s

behavior made Dr. Bales fear for his safety.                                 Dr. Bales also

testified that it was his opinion, based upon J.M.'s treatment

records,     that    if     J.M.'s       involuntary          commitment       expires,        J.M.

will stop taking his medication and will become more delusional

and dangerous.

      ¶19    Second,      the      County       called        Dr.    Barbara       Waedekin,     a

psychiatrist employed by the Wisconsin Resource Center.                                        Dr.

Waedekin had served as J.M.'s treating psychiatrist since March

28, 2014, and saw J.M. approximately 19 to 20 times before the

instant      Chapter        51     commitment-extension                proceeding.             Dr.

Waedekin      based       her      opinions         on    the        following:          (1)   her

interactions with J.M.; (2) a review of his treatment records;

and (3) communications with other staff at Wisconsin Resource

Center who interacted with him.

      ¶20    Dr.     Waedekin          testified       that    J.M.    has     a    substantial

disorder of thought, mood, and perception that grossly impairs
his behavior, judgment, and capacity to recognize reality.                                     She

testified that J.M. believes that he is the "Lord God Jesus

Christ      Omnipotent"          and    that    he       wants       his    records       at   the

Department      of    Corrections          to       reflect         that    identity.          Dr.

Waedekin     further      testified        that      J.M.      denies       having       hepatitis

despite a positive blood test because he claims his blood is

mixed with Jeffrey Dahmer's.

      ¶21    Dr.     Waedekin           offered        several       examples        of     J.M.'s
violent behavior, including charging doors, attempting to grab
                                                6
                                                                       No.    2016AP619



staff through the trap door in his cell, spitting at staff, and

throwing things.         She described one particular instance when she

met with J.M. to advise him that an extension of his commitment

was being requested.             When she brought up J.M.'s medication

during that meeting, he became agitated and began yelling at

her:

       He stated that he was my Lord, God Jesus Christ, he
       addressed me by my first name and he kept saying he
       was damming [sic] me. He also was yelling that I was
       lying.

       He continued to get more and more agitated, stood up,
       and was approaching me such that the PCT [patient care
       technician] told him he had to leave, that he had to
       go through the door with him and out of the office.
       ¶22    Dr.     Waedekin   further          testified     that   during      this

interaction, J.M. was very menacing and threatening towards her

and    that    J.M.    had   been     deemed       one   of    the   most    dangerous

individuals at the facility by one of the guards because he had

a volatile anger that could erupt without warning.                     Dr. Waedekin

explained that although J.M. was responding well to treatment,

he would "become more violent" if he did not take his medication

and that J.M. was unlikely to take his medication without an

order to do so.

       ¶23    In contrast, J.M. testified that he had calmed down

and that the instances Dr. Waedekin described had happened when

he was "still very angry."             J.M. stated his belief that he was

not mentally ill or dangerous and that the experts' conclusions

were "opinions, not facts."             Furthermore, J.M. confirmed on the
stand   that    he     was   "Jesus    the       Lord"   and   elaborated     on   this

                                             7
                                                                       No.       2016AP619



belief, claiming, "I was born from the house of the Lord, it's

the house that I came from and that's who I am."                                 He also

testified that he had the ability to damn people.

       ¶24     Pursuant    to   Wis.    Stat.   § 51.20(1)(a),       the        jury    was

instructed to determine (1) whether J.M. was mentally ill; (2)

whether J.M. was a danger to himself or others; and (3) whether

J.M. was a proper subject for treatment by "clear, satisfactory

and    convincing     evidence."5         Following    deliberation,            the    jury

unanimously        found   that    J.M.   was     mentally    ill,     a       danger   to

himself or others, and a proper subject for treatment.                                Based

upon       these   findings,      the   circuit    court     ordered       a    12-month

extension to J.M.'s commitment.

       ¶25     J.M. then filed a post-disposition motion for a new

commitment-extension hearing based on ineffective assistance of

counsel, or alternatively, in the interest of justice.                                 J.M.

contended that his trial counsel was ineffective because his

trial counsel failed to arrange to have J.M. appear in civilian

clothing and failed to request a jury instruction directing that
J.M.'s status as a prisoner had no bearing on the commitment-

extension proceeding.6            Alternatively, J.M. requested a new trial


       5
       The petitioner, the County in the instant case, has the
burden of proving all required facts by clear and convincing
evidence. Wis. Stat. § 51.20(13)(e).
       6
       The motion alleged that J.M.'s trial counsel called the
Wisconsin Resource Center about obtaining civilian clothes for
J.M to wear during trial, but for some unknown reason, J.M.'s
counsel did not follow up on the matter.


                                           8
                                                                                      No.    2016AP619



under Wis. Stat. § 751.06 because his appearance in prison garb

distracted the jury from the real controversy at hand.

      ¶26      The       circuit      court      concluded             that      J.M.       had    not

satisfied          the     two-prong     test        set    forth           in    Strickland           v.

Washington,          466    U.S.   668        (1984),       to        establish        ineffective

assistance of counsel.                Also applying the Strickland test, the

court    of    appeals        affirmed        the    order       of     the      circuit       court,

holding in part that even if his trial counsel's performance was

deficient,          J.M.    was    not    prejudiced             by     counsel's           allegedly

deficient performance.             For the reasons set forth, we affirm the

decision of the court of appeals.

                                                II

      ¶27      We    first    address         whether      the        grant      of    a    statutory

right to counsel in Wis. Stat. § 51.20(3) is a grant of a right

to effective assistance of counsel.                        We determine this question

of statutory interpretation independently of the circuit court

and court of appeals, In re Commitment of Franklin, 2004 WI 38,

¶5,     270        Wis. 2d 271,        677      N.W.2d 276,             and      conclude         that
§ 51.20(3) grants a right to effective assistance of counsel.

      ¶28      Next, we address the legal standard to be applied for

evaluating the ineffective assistance of counsel claim in this

Chapter       51    proceeding.          Determining             the    legal         standard     for

evaluating         an    ineffective      assistance             of    counsel         claim      is   a

question of law that an appellate court decides independently,

benefiting from the analyses of other courts.                                    See Megal Dev.

Corp.     v.       Shadof,     2005      WI    151,        ¶8,        286     Wis. 2d 105,         705


                                                9
                                                               No.    2016AP619



N.W.2d 645;    State    v.   McCallum,    208   Wis. 2d 463,   474-75,     561

N.W.2d 707 (1997).

      ¶29    We conclude, as did the court of appeals, that the

applicable standard for evaluating the ineffective assistance of

counsel claim in the instant case is the two-prong standard

announced in Strickland v. Washington, 466 U.S. 668 (1984):                  A

movant must demonstrate that counsel's performance was deficient

and   that   the    movant   was   prejudiced    by   counsel's      deficient

performance.       Strickland, 466 U.S. at 687.

      ¶30    The first prong of Strickland requires the movant to

show specific acts or omissions by counsel that fall "outside

the   wide     range    of    professionally      competent    assistance."

Strickland, 466 U.S. at 690.

      ¶31    The second prong of Strickland requires the movant to

demonstrate "a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have

been different."        Strickland, 466 U.S. at 694.           A reasonable

probability is a probability sufficient to undermine confidence
in the outcome.       Strickland, 466 U.S. at 694.7     In some cases the
      7
       The standard announced in Strickland v. Washington, 466
U.S. 668 (1984), has not been modified or supplanted.        See
Glover v. United States, 531 U.S. 198, 203 (2001) ("[O]ur
holding in Lockhart [v. Fretwell, 506 U.S. 364 (1993),] does not
supplant the Strickland analysis.").

     The Strickland analysis has frequently been applied in
Wisconsin cases. See, e.g., State v. Dillard, 2014 WI 123, ¶95,
358 Wis. 2d 543, 573, 859 N.W.2d 44; State v. Domke, 2011 WI 95,
¶41, 337 Wis. 2d 268, 805 N.W.2d 364 (citing State v. Carter);
State v. Carter, 2010 WI 40, ¶23, 324 Wis. 2d 640, 782
N.W.2d 695.


                                     10
                                                                                    No.    2016AP619



court     has       stated      that    the     Strickland            test    for     prejudicial

performance by counsel is whether counsel committed errors that

were so serious "as to deprive the defendant of a fair trial, a

trial whose result is reliable."8                         If J.M. does not show that a

reasonable probability exists that the result of the proceeding

would be different (i.e., that he was deprived of a fair trial

whose result is reliable), the court need not determine whether

the performance was deficient.                      Strickland, 466 U.S. at 697.                  We

conclude      that        the   second    prong       of       Strickland         (the    prejudice

prong) has not been met in the instant case.

      ¶32       A    claim      of    ineffective         assistance         of    counsel    under

Strickland is a mixed question of fact and law:                                      findings of

fact will not be disturbed unless they are clearly erroneous,

but     the     ultimate          determination           of    whether       trial       counsel's

performance          was     deficient        and     whether         the     movant       suffered

prejudice           are     questions      of       law        that    an     appellate       court

determines independently.                 State v. Carter, 2010 WI 40, ¶19, 324

Wis. 2d 640, 782 N.W.2d 695.                    We conclude that J.M. failed to
show that a reasonable probability exists that the result of the

proceeding          would    be      different.           He    cannot      show    that     he   was

deprived of a fair trial whose result is reliable.

      ¶33       Finally, whether to grant a party a new trial in the

interest of justice, the third question presented, is a question

that an appellate court decides independently, benefiting from

      8
       Strickland, 466 U.S. at 687; State v. Jenkins, 2014 WI 59,
¶37, 355 Wis. 2d 180, 848 N.W.2d 786.


                                                11
                                                                              No.     2016AP619



the analyses of other courts that have considered the issue.

Morden     v.    Cont'l   AG,   2000    WI       51,    ¶88,   235     Wis. 2d 325,         611

N.W.2d 659.        We conclude that a new trial in the interest of

justice is not warranted.

                                            III

      ¶34       The first issue presented is whether the grant of a

statutory right to counsel in Wis. Stat. § 51.20(3) is a grant

of a statutory right to effective counsel and, if so, whether a

claim of ineffective assistance of counsel should be evaluated

using     the    Strickland     standard.          We    conclude      that         § 51.20(3)

grants     a    statutory   right      to    effective         counsel    and        that   the

Strickland       standard     applies       to    J.M.'s       claim     of    ineffective

assistance of counsel in the instant Chapter 51 proceeding.

      ¶35       To determine whether Wis. Stat. § 51.20(3) grants a

right to effective counsel in Chapter 51 involuntary commitment

proceedings, we look to the language of the statute.                                 Pursuant

to   Wis.      Stat.   § 51.20(3),      "the      court    shall       assure        that   the

subject individual is represented by adversary counsel" at the
time of the filing of the petition for commitment.9                             This court

has concluded that when the legislature provides the right to be


      9
          Wisconsin Stat. § 51.20(3) provides:

      (3) Legal counsel.   At the time of the filing of the
      petition the court shall assure that the subject
      individual is represented by adversary counsel by
      referring the individual to the state public defender,
      who shall appoint counsel for the individual without a
      determination of indigency, as provided in s. 51.60.


                                             12
                                                                                  No.     2016AP619



"represented by counsel," the legislature intends that right to

include effective assistance of counsel.                          See In re M.D.(S).,

168 Wis. 2d 995, 1004, 485 N.W.2d 52 (1992).                                 Accordingly we

conclude          that    § 51.20(3)     establishes         a    statutory             right    to

effective assistance of counsel.10

       ¶36       Next, we must determine the standard to apply to the

claim       of    ineffective      assistance       of    counsel           in    the     instant

Chapter      51     proceeding.        J.M.     proposes     a        modified          Strickland

standard,          essentially arguing that prejudice should be presumed

upon a showing of deficient performance.

       ¶37       Strong    legal   support      exists     for        our    denying       J.M.'s

proposal and instead applying the Strickland analysis in the

instant Chapter 51 proceeding.

       ¶38       First, the liberty interests of a movant at stake in

the involuntary commitment proceeding are similar to the liberty

interests of a movant in criminal proceedings.                               The similarity

of liberty interests involved in these proceedings, namely that

an    institutionalized          person    is      subject       to    state       control      and
direction (here medical treatment) that the institutionalized

person claims is not warranted under the law, supports applying

the    same       standards     for    evaluating        ineffective             assistance     of

counsel          claims    in   criminal      proceedings         and       in     involuntary

commitment proceedings.


       10
       Winnebago County agrees with J.M. and the court of
appeals that the right to counsel necessarily includes the right
to effective assistance of counsel.


                                              13
                                                                    No.   2016AP619



      ¶39    Second, the court has applied the Strickland standard

in   other   cases       involving   important    liberty     interests.       For

example,     the     court    has    applied    Strickland     to    ineffective

assistance    of     counsel     claims    in   involuntary    termination      of

parental rights cases.           See In re M.D.(S)., 168 Wis. 2d at 1003

(citing Santosky v. Kramer, 455 U.S. 745, 763-64 (1982)).11

      ¶40    Third, the Strickland standard has been known to and

applied by both the bench and the bar for more than 30 years.

Strickland,        466    U.S.   668   (1984);     State      v.    Harvey,     139

Wis. 2d 353, 407 N.W.2d 235 (1987) (adopting Strickland).                     Thus,




      11
        In Santosky v. Kramer, 455 U.S. 745 (1982), the United
States Supreme Court recognized the formidable task faced by
parents   in   defending  themselves  against the   involuntary
termination of their parental rights:

      The State's ability to assemble its case almost
      inevitably dwarfs the parents' ability to mount a
      defense. No predetermined limits restrict the sums an
      agency may spend in prosecuting a given termination
      proceeding. The State's attorney usually will be
      expert on the issues contested and the procedures
      employed at the factfinding hearing, and enjoys full
      access to all public records concerning the family.
      The State may call on experts in family relations,
      psychology,   and  medicine   to   bolster  its  case.
      Furthermore, the primary witnesses at the hearing will
      be the agency's own professional caseworkers whom the
      State has empowered both to investigate the family
      situation and to testify against the parents. Indeed,
      because the child is already in agency custody, the
      State even has the power to shape the historical
      events that form the basis for termination.

Santosky, 455 U.S. at 763-66.


                                          14
                                                                     No.      2016AP619



the Strickland standard would be easier for the bench and bar to

apply in a variety of cases than a new standard.

      ¶41   Fourth,    the   Strickland      standard    carries          with   it   a

developed body of case law that will aid courts in the efficient

and timely resolution of claims of ineffective assistance of

counsel.     See In re Henry B., 159 A.3d 824, 827 (Me. 2017)

(noting the advantages of applying the Strickland standard to

involuntary commitment proceedings).

      ¶42   Also,     despite    Strickland's           roots        in       criminal

proceedings, this court12 and courts in other jurisdictions13 have

not limited Strickland to criminal cases.               Our decision to apply

the   Strickland      standard   to    resolve    claims        of        ineffective

assistance of counsel in commitment proceedings is in accord

with jurisdictions that have considered the issue.

      ¶43   Indeed,    neither   the    parties    nor     our       research      has

revealed    any   jurisdiction   that       currently    applies          a   standard

      12
       See, e.g., In re M.D.(S)., 168 Wis. 2d 995, 1004, 485
N.W.2d 52 (1992) (applying Strickland to ineffective assistance
of counsel claims in termination of parental rights cases); In
re Commitment of Thayer, 2001 WI App 51, ¶14, 241 Wis. 2d 417,
626 N.W.2d 811 (applying Strickland to a claim of ineffective
assistance of counsel in a ch. 980 civil commitment proceeding).
      13
       See, for example, the following cases applying Strickland
in commitment proceedings: Pope v. Alston, 537 So. 2d 953, 956-
57 (Ala. Civ. App. 1988); Matter of Carmody, 653 N.E.2d 977,
983-84 (Ill. App. Ct. 1995); Jones v. State, 477 N.E.2d 353,
356-357 (Ind. Ct. App. 1985); In re B.T.G., 784 N.W.2d 792, 799
(Iowa Ct. App. 2010); In re Henry B., 159 A.3d 824, 827 (Me.
2017); Matter of J.S., 401 P.3d 197, ¶¶18-19 (Mont. 2017); In re
Protection of H.W., 85 S.W.3d 348, 355-56 (Tex. App. 2002);
Matter of Chapman, 796 S.E.2d 843, 849-50 (S.C. 2017).


                                       15
                                                                       No.     2016AP619



different than Strickland to claims of ineffective assistance of

counsel in commitment proceedings.14

      ¶44    In contrast, the modified Strickland standard proposed

by    J.M.   could    encourage        the    proliferation       of    ineffective

assistance     of    counsel    challenges          and   delay   the        permanency

necessary to stabilize a mentally ill individual's treatment in

a safe environment.      See, e.g., In re Henry B., 159 A.3d at 827.

      ¶45    Accordingly,      we     adopt    the    Strickland       standard     for

ineffective assistance of counsel claims raised in Chapter 51

involuntary commitment proceedings.

                                         IV

      ¶46    We next determine whether in the instant case J.M. is

entitled to a new commitment-extension proceeding on the ground

of ineffective assistance of counsel.                 We conclude that J.M. is

not entitled to a new commitment-extension proceeding because he

has   not    demonstrated      that    he     was    prejudiced    by    his     trial

counsel's allegedly deficient performance.

      ¶47    In order to be entitled to a new trial, J.M. must
satisfy the two-prong test announced in Strickland.                     First, J.M.

must show that trial counsel's performance was so poor as to


      14
       In In re Mental Health of K.G.F., 29 P.3d 485 (Mont.
2001), the Montana Supreme Court rejected the Strickland
standard in civil commitment proceedings and instead applied a
five-factor analysis to determine whether counsel had provided
effective assistance.   This case has since been overruled and
the Montana Supreme Court now applies the Strickland standard to
ineffective assistance of counsel claims in civil commitment
proceedings. Matter of J.S., 401 P.3d 197 (Mont. 2017).


                                         16
                                                                                     No.     2016AP619



deny him effective counsel.                    Strickland, 466 U.S. at 687.                        This

prong    requires       a    showing          of    specific       acts       or    omissions        by

counsel   that     fall      "outside          the      wide     range    of       professionally

competent assistance."                 Strickland, 466 U.S. at 690.

    ¶48     Second,           J.M.        must           demonstrate           "a         reasonable

probability that, but for counsel's unprofessional errors, the

result     of     the        proceeding             would       have      been           different."

Strickland, 466 U.S. at 694.

    ¶49     A     reasonable             probability              under       the          Strickland

prejudice       prong       is     a     probability            sufficient          to     undermine

confidence in the outcome.                    Strickland, 466 U.S. at 694.                         This

statement of the prejudice prong corresponds with another oft-

quoted    statement         from       Strickland         about     the       prejudice       prong,

namely    that    the       defendant         was       prejudiced       if    he     or     she    was

deprived of a fair trial whose result is reliable.                                       Strickland,

466 U.S. at 694.

    ¶50     Because J.M. has not shown he was prejudiced by trial

counsel's   performance,               this    court       need    not    determine           whether
counsel's performance was deficient.

    ¶51     J.M.    argues         that       his       trial    counsel       was       ineffective

during trial for not objecting to J.M.'s appearance in prison

garb and to "other references" to J.M.'s status as an inmate,

and for failing to request a curative instruction.                                       In support

of this claim, J.M. relies on cases that indicate that constant




                                                   17
                                                              No.     2016AP619



reminders to the jury that the defendant is an inmate undermine

fair fact-finding and due process.15

     ¶52    The key case upon which J.M. relies is              Estelle v.

Williams,    425   U.S.   501   (1976),   in   which   the   United    States

Supreme Court explained that the accused's prisoner status may

be a continuing unfair influence on a jury:

     [T]he constant reminder of the accused's condition
     implicit in such distinctive, identifiable attire may
     affect a juror's judgment.    The defendant's clothing
     is so likely to be a continuing influence throughout
     the trial that, not unlike placing a jury in the
     custody of deputy sheriffs who were also witnesses for
     the prosecution, an unacceptable risk is presented of
     impermissible factors coming into play.
Estelle, 425 U.S. at 504-05.

     ¶53    J.M. highlights this language from Estelle because it

suggests    that   a   defendant's   clothing   alone   could   constitute

prejudice.    In the instant case, not only did J.M. wear prison

garb during the proceeding, but he was accompanied by uniformed

     15
       See, e.g., Holbrook v. Flynn, 475 U.S. 560, 569 (1986)
("[T]he sight of a security force within the courtroom might
under certain conditions 'create the impression in the minds of
the jury that the defendant is dangerous or untrustworthy.'")
(quoted source omitted); People v. Hernandez, 247 P.3d 167, 173
(Cal. 2011) (while a deputy standing by a defendant on a witness
stand is not a "human shackle," it is potentially prejudicial);
State v. Champlain, 2008 WI App 5, ¶22, 307 Wis. 2d 232, 744
N.W.2d 889 (a defendant cannot be compelled to appear before a
jury wearing an armband taser).

     J.M. also relies upon an opinion by the Wisconsin Attorney
General that the same principles that govern ineffective
assistance of counsel claims in criminal proceedings should
apply to Chapter 51 proceedings as well. 71 Wis. Op. Att'y Gen.
183, 184-85 (1982) (OAG 58-82).


                                     18
                                                                                 No.    2016AP619



guards during the proceeding and while he was on the witness

stand.

      ¶54     We conclude that J.M. failed to demonstrate that a

reasonable probability exists that the result of his Chapter 51

commitment-extension proceeding would have been different had

trial      counsel's       conduct       not    been    deficient      as    alleged.         We

therefore need not decide whether counsel's alleged deficiencies

constitute deficient performance under Strickland.

      ¶55     In     determining           whether         there      is     a        reasonable

probability of a different result, the reviewing court considers

all the evidence in the record.                        Strickland, 466 U.S. at 695.

The   court     of     appeals       accurately           described    the       evidence     as

overwhelmingly         in     favor        of    continuing         J.M.'s        commitment.

Winnebago Cnty. v. J.M., No. 2016AP619, unpublished slip op.,

¶16 (Wis. Ct. App. Nov. 9, 2016).16

      ¶56     At    the     commitment-extension             proceeding,         two     medical

doctors specializing in psychiatry, Dr. Bales and Dr. Waedekin,

testified      in    support        of    extending        J.M.'s     commitment.           Both
doctors were of the opinion "to a reasonable degree of medical

certainty" that (1) J.M. was mentally ill; (2) J.M. was a danger

to himself or others; and (3) J.M. was a proper subject for

treatment.           The    experts        based       their   opinions          on    personal

interactions        with     J.M.    as    well      as    reviews     of    his       treatment


      16
       "[A] verdict or conclusion only weakly supported by the
record is more likely to have been affected by errors than one
with overwhelming record support." Strickland, 466 U.S. at 696.


                                                19
                                                                   No.    2016AP619



history and records.         See supra ¶¶16-22 (describing the medical

testimony).

    ¶57   In contrast, J.M. presented no countervailing expert

testimony to rebut the opinions of Dr. Bales or Dr. Waedekin.

Instead, J.M. testified on his own behalf.                J.M. testified that

he was not mentally ill or dangerous, that he had calmed down,

and that the County's experts' conclusions were "opinions, not

facts."   J.M. also testified that he identifies as "Jesus the

Lord" and has the ability to damn people.

    ¶58   Further,     both       doctors   shared    experiences        of   their

interactions with J.M. that contradicted J.M.'s testimony that

he was no longer a danger to himself or others and that he had

calmed down.    Dr. Bales testified to terminating his evaluation

of J.M. early because J.M.'s reactions caused him to fear for

his safety.    This evaluation occurred just one day prior to the

commitment-extension proceeding.            Dr. Waedekin also testified to

being the subject of a menacing and threatening outburst that

included being yelled at and "damned" by J.M. when she met with
J.M. to advise him that an extension of his commitment was being

requested.

    ¶59   To    prevail       in     the    instant       commitment-extension

proceeding    and   obtain    a    continuation      of   J.M.'s   confinement,

Winnebago County had to prove by clear and convincing evidence

that J.M. was (1) mentally ill; (2) a danger to himself or

others; and (3) a proper subject for treatment.                      Wis. Stat.

§ 51.20(1)(a), (13)(e).


                                       20
                                                                         No.    2016AP619



       ¶60   The jurors were instructed to determine a witness's

credibility         based    on   the   witness's     conduct,    appearance,         and

demeanor       on    the     witness    stand    and    all      other     facts      and

circumstances.         No reasonable jurors would have thought that the

jury    instructions         directed     them   to    base   their       credibility

assessment on J.M.'s clothing.              Although in-person evaluation of

witness credibility is important, we are not persuaded that the

jury would have given different credence to J.M.'s testimony had

he not worn prison garb.

       ¶61   Given the testimony presented by the County and J.M.,

the jury's findings that J.M. was mentally ill, a danger to

himself or others, and a proper subject for treatment were well-

supported by the evidence.              The evidence presented by Winnebago

County supporting its position was overwhelming.                    J.M. is unable

to demonstrate a reasonable probability that the result of the

proceeding would have been different but for his trial counsel's

allegedly deficient performance.

                                           V
       ¶62   Lastly, we determine whether J.M. is entitled to a new

commitment-extension proceeding in the interest of justice under

Wis. Stat. § 751.06.

       ¶63   Wisconsin Stat. § 751.06 permits this court to order a

new    trial    "if     it    appears     from   the    record     that        the   real

controversy has not been fully tried, or that it is probable

that justice has for any reason miscarried . . . ."                        Wis. Stat.

§ 751.06.       This court's discretionary power pursuant to Wis.
Stat. § 751.06 is to be "exercised sparingly and with great
                                           21
                                                                                     No.     2016AP619



caution."      State v. Watkins, 2002 WI 101, ¶79, 255 Wis. 2d 265,

647 N.W.2d 244.

      ¶64     J.M.        contends        that      because             the     jury        received

contradictory instructions on the burden of proof and because

J.M. was in prison attire, the real controversy was not tried in

the instant case.

      ¶65     Before        opening          statements,            the         circuit           court

erroneously told the jury that Winnebago County was required to

prove its case by the "greater weight of the credible evidence."

No   one    pointed       out   the     mistake.             At    the    end    of        testimony,

immediately         prior    to    jury      deliberations,              the     circuit       court

orally correctly instructed the jury that Winnebago County had

to prove all facts by "clear and convincing evidence."                                             The

correct      standard       was       also     included            in    the     written          jury

instructions;         the    circuit       court        is    required          to    submit       the

written jury instructions to the jury. Wis. Stat. § 805.13(4).

Under      these    circumstances,           the    conflicting           jury       instructions

fail to raise sufficient qualms about the commitment-extension
proceeding     to     justify      this      court's         use    of    its     discretionary

power under Wis. Stat. § 751.06.

      ¶66     Furthermore,         as     we     explained          above,       J.M.       was    not

prejudiced by his wearing of prison garb during his commitment-

extension proceeding.

      ¶67     Accordingly,         nothing         in   the       record       supports       J.M.'s

contention         that   the     court      should      exercise         its     discretionary

power under Wis. Stat. § 751.06 to grant a new trial on the


                                               22
                                                                              No.    2016AP619



ground that the real controversy was not fully tried.                               The real

controversy was fully tried.

                                       * * * *

      ¶68    For the reasons set forth, we conclude that J.M. is

not   entitled       to    a    new     Chapter         51       commitment-extension

proceeding.

      ¶69    The    legislature       has    granted        a    right    to        effective

assistance    of    counsel     in   the     Chapter     51      commitment-extension

proceeding at issue.            Wis. Stat. § 51.20(3).                   The Strickland

standard     is    the   correct     standard     to    apply      to    the        claim   of

ineffective assistance of counsel.                     J.M. did not demonstrate

that he was prejudiced by trial counsel's allegedly deficient

performance.

      ¶70    Accordingly, we affirm the court of appeals' decision

that J.M.'s post-disposition motion was properly dismissed.

      By    the    Court.—The    decision        of   the       court    of     appeals     is

affirmed.




                                            23
                                                                  No.    2016AP619.awb


      ¶71   ANN WALSH BRADLEY, J.               (concurring).         I agree with

the majority that the Strickland standard should be applied to

ineffective assistance of counsel claims in ch. 51 involuntary

commitment proceedings.           I further agree that the evidence is

"overwhelmingly     in   favor      of    continuing         J.M.'s     commitment."

Majority op., ¶55.       Accordingly, I also conclude that "J.M. is

unable to demonstrate a reasonable probability that the result

of the proceeding would have been different but for his trial

counsel's allegedly deficient performance."                  Id., ¶61.

      ¶72   However, I write separately to caution counsel in ch.

51 cases regarding the effect that prison garb and uniformed

guards may have on such a proceeding.              There is a dearth of case

law surrounding ineffective assistance of counsel in the context

of ch. 51 proceedings, making further guidance to the bench and

bar alike beneficial.          Indeed, this case represents our first

announcement that a potential ch. 51 committee is entitled to

the effective assistance of counsel in the first instance.

      ¶73   For the reasons set forth below, I urge ch. 51 counsel
to   be   mindful   of   the    unique        effect    that    prison     garb    and

uniformed     officers     could         have     on     a     proceeding         where

"dangerousness" is an element the county must prove.

      ¶74   Although     J.M.'s     counsel       had    asked    the      Wisconsin

Resource Center to ensure J.M. appeared for trial in civilian

clothing, it failed to do so.            Despite J.M. being clothed in his

prison uniform, counsel allowed the trial to continue without

objection.    Majority op., ¶12.



                                          1
                                                                     No.    2016AP619.awb


      ¶75     The United States Supreme Court has recognized that

prison uniforms          are     "so likely to be a continuing influence

throughout the trial that, not unlike placing a jury in the

custody     of     deputy     sheriffs    who   were   also    witnesses       for   the

prosecution, an unacceptable risk is presented of impermissible

factors coming into play."                Estelle v. Williams, 425 U.S. 501,

505 (1976).

      ¶76     Prison clothing is an "unmistakable indication[]                        of

the need to separate a defendant from the community at large."

Holbrook v. Flynn, 475 U.S. 560, 569 (1986).                   It is "a sign that

[a person] is particularly dangerous or culpable."                             See   id.

Such attire thus sends a strong signal to a jury not only that a

person is criminally guilty, but that a person is dangerous.

      ¶77     In      addition    to   wearing    prison      clothing,       J.M.   was

accompanied throughout trial by two uniformed guards from the

Department of Corrections.               See majority op., ¶12.            "[T]he sight

of a security force within the courtroom might under certain

conditions create the impression in the minds of the jury that
the defendant is dangerous or untrustworthy."                         Holbrook, 475

U.S. at 569 (internal quotation omitted).

      ¶78     The uniformed officers did not merely guard J.M. in

the courtroom during the proceedings, but also flanked J.M. even

as he testified from the witness stand.                 See majority op., ¶53.

The   image      of    this    guarded     closeness    has    the     potential      to

prejudice the jury.            See People v. Hernandez, 247 P.3d 167, 173-

74 (Cal. 2011) (explaining that although a deputy standing by a



                                            2
                                                                     No.   2016AP619.awb


defendant on the witness stand is not a "human shackle," it is

potentially prejudicial to the jury).

       ¶79    The   facts   alleged        here    give   rise      to   the    "certain

conditions" forewarned in Holbrook.                  The combination of prison

clothing      and   uniformed       officers      standing     guard     next    to   the

witness stand may leave "the impression in the minds of the jury

that the defendant is dangerous."                   See Holbrook, 475 U.S. at

569.

       ¶80    These    facts         are        particularly        potent      because

dangerousness is an element that the county must prove in a ch.

51 commitment proceeding.1             In re Helen E.F., 2012 WI 50, ¶20,

340 Wis. 2d 500, 814 N.W.2d 179; Wis. Stat. § 51.20(1)(a)1.-2.

When a person subject to a ch. 51 proceeding appears before the

jury surrounded by uniformed guards and wearing prison garb, the

dangerousness element could be established without a word from

the county's attorney.          One look at a person in this condition

may create a clear subtext:            this man is dangerous.

       ¶81    Accordingly, although I join the majority opinion, I
write separately to call attention to counsel's obligations in

ch.    51    proceedings.       I    urge    counsel      to   be    mindful     of   the

potentially harmful effects of prison garb and uniformed guards

when "dangerousness" is an element that must be proven.

       ¶82    For the foregoing reasons, I respectfully concur.

       1
       In order to be subject to involuntary commitment pursuant
to ch. 51, an individual must be (1) mentally ill; (2) a proper
subject for treatment; and (3) dangerous to themselves or to
others. In re Helen E.F., 2012 WI 50, ¶20, 340 Wis. 2d 500, 814
N.W.2d 179; Wis. Stat. § 51.20(1)(a)1.-2.


                                            3
    No.   2016AP619.awb




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