                                                               2017 WI 63

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2015AP671-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent,
                             v.
                        Keimonte Antonie Wilson, Sr.,
                                  Defendant-Appellant-Petitioner.
                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                           Reported at 371 Wis. 2d 564, 884 N.W.2d 534
                                       (2016 – Unpublished)

OPINION FILED:          June 22, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          February 17, 2017

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Milwaukee
   JUDGE:               William S. Pocan

JUSTICES:
   CONCURRED:
   DISSENTED:           ZIEGLER, J. dissents, joined by GABLEMAN, J.
   NOT PARTICIPATING:


ATTORNEYS:


       For the defendant-appellant-petitioner, there were briefs
and oral argument by Kaitlin A. Lamb, assistant state public
defender, and Jorge R. Fragoso, assistant State public defender.


       For        the   plaintiff-respondent     there   was    a   brief   by
Christopher G. Wren, assistant attorney general, and Brad D.
Schimel, attorney general, and an oral argument by                   Jason A.
Gorn, assistant attorney general.
                                                                                  2017 WI 63
                                                                       NOTICE
                                                         This opinion is subject to further
                                                         editing and modification.   The final
                                                         version will appear in the bound
                                                         volume of the official reports.
No.   2015AP671-CR
(L.C. No.    2013CF2103)

STATE OF WISCONSIN                                   :             IN SUPREME COURT

State of Wisconsin

             Plaintiff-Respondent,
                                                                             FILED
      v.                                                               JUN 22, 2017

Keimonte Antonie Wilson, Sr.,                                             Diane M. Fremgen
                                                                       Clerk of Supreme Court

             Defendant-Appellant-Petitioner.




      REVIEW of a decision of the Court of Appeals.                          Reversed and

cause remanded.



      ¶1     ANN WALSH BRADLEY, J.               Petitioner, Keimonte Antonie

Wilson,     Sr.    ("Wilson"),       seeks    review      of   a   court      of    appeals
decision affirming a circuit court judgment of conviction and

order denying his postconviction motion.1                      The court of appeals

determined        that   the   circuit       court   correctly        interpreted        the

statutory     procedure        for   subpoenaing         witnesses      in    a    criminal

case.       Additionally, it concluded that Wilson did not receive

      1
       State v. Wilson, No. 2015AP671-CR, unpublished slip op.
(Wis. Ct. App. July 6, 2016) (affirming judgment and order
entered by the circuit court for Milwaukee County, William S.
Pocan, J., presiding).
                                                                   No.    2015AP671-CR



ineffective assistance of counsel because he was not prejudiced

by the failure to obtain a witness's testimony at a suppression

hearing.

     ¶2     Wilson requests that this court reverse the court of

appeals' decision and remand for an evidentiary hearing to take

testimony on a material issue of fact from a key witness who

failed to appear at the suppression hearing.                      He contends that

the court of appeals erred in concluding that the witness was

improperly       served    a   subpoena.         In   the   alternative,      Wilson

asserts that his trial counsel was ineffective for failing to

argue     that    the     service   of     the     subpoena       was    proper,    or

alternatively, for failing to properly subpoena the witness.

     ¶3     Contrary to the court of appeals, we conclude that the

circuit court erred in determining that Wilson improperly served

a subpoena on the witness.               Wilson complied with Wis. Stat.

§ 885.03 (2013-14), which allows service of a subpoena on a

witness    in    a   criminal    case    by      leaving    the    subpoena    at   a

witness's abode.2          Because we determine that the subpoena was




     2
       All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.


                                           2
                                                                       No.       2015AP671-CR



properly served, we need not address the alternative argument

asserting ineffective assistance of counsel.3

     ¶4        Accordingly,      we    reverse      the     court     of     appeals      and

remand to the circuit court for a continuance of the suppression

hearing so that Wilson may present the testimony of the witness

who failed to appear.

                                             I

     ¶5        The initial material facts of this case are not in

dispute.       Wilson was charged with one count of possession with

intent to deliver between five and fifteen grams of cocaine as a

second offense.

     ¶6        According to the complaint, police officers observed a

truck parked in a vacant lot near a "No Trespassing" sign.                               They

saw Wilson get out of the truck and walk towards a known drug

house.      When      Wilson     reappeared       and   walked       back    towards      the

truck,    he    was     approached      by   three      officers.           He    allegedly

consented      to   a   search    of   his       person,    which     resulted      in    the

officers finding cocaine and cash.
     ¶7        Wilson    filed    a    suppression         motion,    contending         that

there was no basis for the stop and that he had not consented to

     3
       We need not determine whether Wilson received ineffective
assistance of counsel because Wilson prevailed on his statutory
interpretation argument. As Wilson's counsel explained at oral
argument, his ineffective assistance of counsel claim was raised
as an alternative argument if the court did not address the
merits of Wilson's statutory claim.    Because we determine that
Wilson properly subpoenaed the witness and thus remand for an
evidentiary hearing, we do not address the merits of Wilson's
ineffective assistance of counsel claim.


                                             3
                                                                       No.   2015AP671-CR



the search.            Accordingly, he argued that the evidence obtained

from the search (three plastic bags allegedly containing cocaine

and $449 in cash) must be suppressed.                       During the suppression

hearing,     a     factual      issue    arose       regarding   whether     the    police

officers had their guns drawn when they approached the truck and

searched Wilson.

       ¶8        The   police    officers    testified       that   that     their    guns

were not drawn.           For example, Officer Hunter testified:

       Q:   At any point in time prior to approaching the
       parked truck did you have your weapon drawn?

       A:        No.

       Q:   Did Officer Savagian have his weapon drawn did
       you see?

       A:        No.

                                           . . .

       Q: At any point of time in this encounter with either
       Darryl, the front seat passenger, or Mr. Wilson did
       any of the officers have their guns out?

       A:        No.
       ¶9        The    defense    called        a    witness    who    disputed       the

officers' account of events.                Darryl Roberts, who was sitting in

the truck with Wilson, testified that two "[o]fficers arrive[d]

with   their       guns    out."        Roberts       further    testified    that    one

officer opened the door, grabbed his arm, pulled him out of the

truck and immediately searched him.

       ¶10       A second defense witness, Jacqueline Brown, failed to

appear      to    testify    at    the    hearing.         Wilson's     trial      counsel
observed that the affidavit of service indicated that Brown had

                                             4
                                                            No.   2015AP671-CR



been served by leaving a copy of the subpoena with her daughter

at their residence.4          He proffered that if she were present,

Brown would testify that she observed the officers with guns

drawn approach the vehicle and take both Wilson and Roberts out

of the vehicle.

     ¶11      As his counsel further explained, Brown received the

subpoena and had notice of the hearing, but was unable to leave

work to attend the hearing:

     She indicated to me she was at work and she was unable
     to get someone to cover her shift.    The witness who
     did show up [Ms. Brown's son Darryl Roberts] brought
     us a letter from [Ms. Brown] indicating that she
     wasn't going to be able to attend today.            My
     impression is, is that she's a necessary witness since
     there's some dispute here as to the conditions
     surrounding the stop.   We do have a proper subpoena.
     I have an affidavit of service.
     ¶12      After Brown failed to appear at the hearing, defense

counsel moved to adjourn the hearing in order to resubpoena

Brown    or   proposed   that   Brown   testify    by   phone.    The   State

objected to having Brown testify by phone and instead suggested

a body attachment.       Defense counsel agreed with the State that a
body attachment should be ordered.

     ¶13      The   circuit     court       acknowledged   that    testimony

regarding whether the officers had their guns drawn "does seem

to be the issue in this case."          It stated:

     4
       In this case there is no dispute that the witness received
notice of the hearing. At oral argument it was underscored that
we need not address any concerns that may arise if a witness
does not receive notice.


                                        5
                                                               No.     2015AP671-CR




       As a practical matter if they came to the vehicle with
       guns ablaze, then we have a different issue because
       then the people in the car could have felt they were
       under arrest or——and didn't have any choice other than
       to be searched. So it's a key issue. It would seem
       to me it's the only key issue of all the testimony
       I've heard here today . . . .
Although Brown would have offered testimony on this key issue,

the circuit court concluded that "the problem that I have here

is that this is not a valid subpoena and I could not issue a

body attachment based on this subpoena."

       ¶14    According to the circuit court, the service of the

subpoena——an        apparent   single    attempt    that     used     substituted

service——was inadequate.          It reasoned that "you have to attempt

on a couple of occasions and make reasonable efforts before you

can   serve    by    substitute   service."        The   circuit     court    asked

defense counsel and the State whether it was "wrong on the law"

regarding     service    and   both   agreed   that      multiple    attempts   at

personal service need to be made before substituted service may

be    used.     Consequently,      the   circuit      denied   both     the   body

attachment and the adjournment request.

       ¶15    The hearing continued without testimony from Brown.

Wilson testified in his own defense that three officers ran up

with their guns drawn:

       [The officer] had his gun and then he just start
       patting on me. And I'm looking dead at the gun. I'm
       like——'cause I'm scared.  I'm like, oh, man, what's
       going on. . . .
       ¶16    However, the circuit court concluded that the police
officers' testimony was more credible than was the testimony of


                                         6
                                                                            No.    2015AP671-CR



Roberts     and      Wilson.       It     addressed       the    absence          of     Brown's

testimony,      concluding        that     even    if    she    had     testified,            this

likely would not have assisted the court in its ruling on the

motion because Roberts' and Wilson's testimony was inconsistent.

The     circuit       court     further    determined          there     was       reasonable

suspicion to stop and consent to the search.                         It denied Wilson's

motion to suppress.

      ¶17      Wilson    subsequently       pleaded       guilty       to    one       count    of

possession with intent to deliver between five and fifteen grams

of cocaine.           In exchange for Wilson's plea, the State dropped

the repeater charge.             The circuit court sentenced Wilson to five

years of imprisonment.

      ¶18      Wilson filed a postconviction motion, arguing that the

circuit     court       erroneously        determined         that     service          of     the

subpoena    was       inadequate.         Additionally,         he    asserted          that    he

received ineffective assistance of counsel because trial counsel

failed    to    make     an     argument    that       the    subpoena        was       properly

served.         In     the     alternative,       he     advances       that       if    it     is
determined that the witness was improperly served, then trial

counsel was ineffective for failing to ensure that service of

the subpoena was properly executed.

      ¶19      The     circuit     court     denied          Wilson's        postconviction

motion without a hearing.                 The court of appeals affirmed the

circuit court's judgment and order, concluding that the circuit

court    "properly       interpreted        the    subpoena      rules        and       that    no

prejudice       has     been    shown     from     the       failure     to       obtain       the


                                             7
                                                                          No.    2015AP671-CR



witness's     testimony."           State        v.    Wilson,      No.     2015AP671-CR,

unpublished slip op., ¶1 (Wis. Ct. App. July 6, 2016).

                                            II

       ¶20   We are asked to determine whether Wilson complied with

the statutory procedure for serving a subpoena on a witness in a

criminal case.          Accordingly, we are called upon to interpret and

apply    relevant       statutes.       The       interpretation           of    a    statute

presents a question of law that we decide independently of the

decisions     rendered      by    the   circuit         court    and       the    court       of

appeals.      State v. Harrison, 2015 WI 5, ¶37, 360 Wis. 2d 246,

858 N.W.2d 372.

       ¶21   Statutory interpretation begins with the language of

the statute.        State ex rel. Kalal v. Cir. Ct. for Dane Cty.,

2004    WI   58,   ¶45,    271   Wis. 2d 633,           681   N.W.2d 110.             We   give

statutory language its common, ordinary and accepted meaning,

except that technical or specially-defined words are given their

technical or special definitions.                 Id.

       ¶22   Statutory language is interpreted in the context in
which it is used, in relation to the language of surrounding or

closely-related         statutes.       Id.,          ¶46.      Generally,           "where    a

specific     statutory      provision       leads       in    one    direction         and     a

general statutory provision in another, the specific statutory

provision controls."            Marder v. Bd. of Regents of Univ. of Wis.

Sys.,    2005      WI    159,    ¶23,   286       Wis. 2d 252,         706       N.W.2d 110

(citation omitted).

       ¶23   If the meaning of a statute is clear, we may end our
analysis.       However, legislative history and other authoritative
                                            8
                                                                     No.     2015AP671-CR



sources     may     be     consulted       to      confirm     a         plain    meaning

interpretation.         Kalal, 271 Wis. 2d 633, ¶51.

                                           III

      ¶24      At issue in this case is the procedure for service of

a subpoena on a witness in a criminal case.                   The parties present

for   our      examination    four    Wisconsin       statutes       addressing       the

requirements for service of subpoenas.                       We begin by setting

forth    the    four     statutes    and    then    examine        how    the    statutes

interface one with the other.

      ¶25      Wilson    focuses     our    attention        and     relies      on   two

statutes, Wis. Stat. §§ 972.11 and 885.03.                         Chapter 972 Wis.

Stats.    is    entitled     Criminal      Trials    and     within       that   chapter

Wilson points to Wis. Stat. § 972.11 (Evidence and practice;

civil rules applicable).            It states that Chapter 885 shall apply

in all criminal proceedings:

      (1) Except as provided in subs. (2) to (4), the rules
      of evidence and practice in civil actions shall be
      applicable in all criminal proceedings unless the
      context of a section or rule manifestly requires a
      different construction. . . . Chapters 885 to 895,
      except ss. 804.02 to 804.07 and 887.23 to 887.26,
      shall apply in all criminal proceedings.
Wis. Stat. § 972.11(1).

      ¶26      Accordingly, we turn next to the second statute Wilson

advances.        It is located in Chapter 885 ("Witnesses and Oral

Testimony"), a Chapter apart from either the criminal or civil

rules of procedure.          Within the Chapter lies Wis. Stat. § 885.03

(Service of Subpoena), which provides three methods for serving
a subpoena, including by leaving a copy at the witness's abode:


                                            9
                                                                     No.    2015AP671-CR


       Any subpoena may be served by any person by exhibiting
       and reading it to the witness, or by giving the
       witness a copy thereof, or by leaving such copy at the
       witness's abode.
       ¶27     The State on the other hand asks us to focus primarily

on   two     statutes   that   are    set    forth   in    the      civil     rules   of

procedure, Wis. Stat. §§ 805.07 and 801.11.                         The former also

incorporates Chapter 885.

       ¶28     Wisconsin   Stat.     § 805.07    (Subpoena)          states    that    a

subpoena generally may be served in accordance with Chapter 885.

However, by reference to Wis. Stat. § 801.11(1)(b), it excepts

from    that    general    premise    the     manner      in    which      substituted

personal service of a witness subpoena must be accomplished.

Wis. Stat. § 805.07 provides:

       (1) ISSUANCE AND SERVICE.  Subpoenas shall be issued and
       served in accordance with ch. 885.        A subpoena may
       also be issued by any attorney of record in a civil
       action or special proceeding to compel attendance of
       witnesses for deposition, hearing or trial in the
       action or special proceeding.
                                 . . . .

       (5) SUBSTITUTED SERVICE. A subpoena may be served in the
       manner provided in s. 885.03 except that substituted
       personal service may be made only as provided in s.
       801.11(1)(b) and except that officers, directors, and
       managing agents of public or private corporations or
       limited    liability    companies  subpoenaed  in  their
       official capacity may be served as provided in s.
       801.11(5)(a).
       ¶29     Pursuant to the rules of civil procedure, Wis. Stat.

§ 801.11      ("Personal    jurisdiction,       manner         of   serving    summons

for") sets forth the manner for substituted personal service of

a summons on a defendant.          Section 801.11 states:



                                        10
                                                             No.   2015AP671-CR


    A court of this state having jurisdiction of the
    subject matter and grounds for personal jurisdiction
    as provided in s. 801.05 may exercise personal
    jurisdiction over a defendant by service of a summons
    as follows:

          (1) NATURAL PERSON. Except as provided in sub. (2)
          upon a natural person:

                 (a) By personally serving the summons upon
                 the defendant either within or without this
                 state.

                 (b)   If   with  reasonable   diligence  the
                 defendant cannot be served under par. (a),
                 then by leaving a copy of the summons at the
                 defendant's usual place of abode:

                     1. In the presence of some competent
                     member of the family at least 14 years
                     of age, who shall be informed of the
                     contents thereof;

                     1m. In the presence of a competent
                     adult, currently residing in the abode
                     of the defendant, who shall be informed
                     of the contents of the summons; or

                     2.   Pursuant  to   the law   for   the
                     substituted service of summons or like
                     process upon defendants in actions
                     brought    in    courts   of    general
                     jurisdiction of the state in which
                     service is made.
                                . . .

When read together with Wis. Stat. § 805.07, these two rules of

civil procedure instruct that substituted service may be used to

serve a subpoena only if after reasonable diligence a witness

cannot be personally served.

                                  IV
    ¶30   As     Kalal   instructs,       we        begin   our     statutory
interpretation    with   the   language        of    the    statute.       271

                                  11
                                                                          No.     2015AP671-CR



Wis. 2d 633, ¶45.             We focus first on Wis. Stat. § 972.11(1),

which is part of the criminal procedure statutes.                               It initially

provides   that        "the   rules      of    evidence       and   practice       in   civil

actions shall be applicable in all criminal proceedings unless

the context of a section or rule manifestly requires a different

construction."         However, it subsequently references Chapter 885,

which   governs        the    service     of        subpoenas.       Section       972.11(1)

expressly provides that "Chapter[s] 885 to 895 . . . shall apply

in all criminal proceedings."                  Therein lies the rub.              Which part

of Wis. Stat. § 972.11 directs our inquiry?                               The answer will

determine whether reasonable diligence was required here.

    ¶31     The       State   points      initially       to     Wis.     Stat.    § 972.11,

emphasizing the portion of its text that sets forth the general

premise that the rules of practice in civil actions shall be

applicable       in     criminal        proceedings       unless        context        clearly

requires    otherwise.

    ¶32     It        asserts    that         the     civil     statutes        Wis.     Stat.

§§ 805.07(5) and 801.11 control here and that their context does
not require a different construction.                         The State explains that

although Wis. Stat. § 801.11(1)(b) is the statute governing the

service    of    a     summons     in    civil        actions,      its    procedure      for

substituted service is incorporated by Wis. Stat. § 805.07(5) as

the procedure for serving a subpoena in a civil action.                                    See

Wis. Stat. § 805.07(5) ("A subpoena may be served in the manner

provided in s. 885.03 except that substituted personal service

may be made only as provided in s. 801.11(1)(b) . . . .").


                                               12
                                                                             No.     2015AP671-CR



       ¶33   In     a       civil       action,       a   subpoena    may    be     left       at    a

witness's     residence            only       if,    with    "reasonable     diligence"             the

defendant         cannot           be      personally          served.             Wis.        Stat.

§ 801.11(1)(b).             In such a case, it may be left with a competent

family member at least 14 years of age or in the presence of a

competent     adult          currently          residing       in     the    abode        of    the

defendant.        Wis. Stat. § 801.11(1)(b)1.-1m.                           Accordingly, the

State   maintains            that       the    subpoena       was    not    properly          served

because      Wilson          did     not       satisfy       the     reasonable          diligence

requirements when he used substituted service after only one

attempt at personal service.

       ¶34   Admittedly, Wis. Stat. § 972.11(1) points us in two

different     directions.                On    the    one    hand,    the    rules       of    civil

procedure     are       applicable             generally       to    criminal       proceedings

unless the context of a section or rule requires a different

construction.           The application of the rules of civil procedure

mandates     reasonable             diligence         for    substituted         service       of    a

subpoena.      On the other hand, Chapter 885 is to apply in all
criminal proceedings and within that chapter lies Wis. Stat.

§ 885.03 that sets forth three manners for service of a subpoena

that do not include the reasonable diligence mandate.

       ¶35   We    find       guidance          in    this    court's      prior    instruction

that    "where      a       specific          statutory       provision          leads    in     one

direction     and       a    general       statutory         provision      in    another,       the

specific      statutory                 provision         controls."              Marder,           286

Wis. 2d 252, ¶23, 706 N.W.2d 110 (citation omitted); see also


                                                     13
                                                                              No.    2015AP671-CR



State    v.       Schaefer,      2008     WI     25,     ¶47,     308       Wis. 2d 279,       746

N.W.2d 457.

       ¶36    Because Wis. Stat. § 972.11(1) explicitly references

Chapter 885, it is the more specific textual provision.                                        In

contrast,         the    rules     of    civil      procedure         are     only    generally

applied to criminal cases through Wis. Stat. § 972.11(1).                                    Thus,

service      of    a     witness    subpoena        in     a    criminal       proceeding      is

controlled by Wis. Stat. § 885.03, rather than by the rules of

civil procedure.

       ¶37    The plain language of Wis. Stat. § 885.03 sets forth

the procedures for serving a subpoena on a witness in a criminal

proceeding.         It provides only that "[a]ny subpoena may be served

by any person by exhibiting and reading it to the witness, or by

giving the witness a copy thereof, or by leaving such copy at

the witness's abode."              Wis. Stat. § 885.03.

       ¶38    We turn next to the legislative history of the civil

and    criminal         subpoena    statutes        to     confirm      our    plain       meaning

interpretation of the statute.                         Kalal, 271 Wis. 2d 633, ¶51.
More    specifically,         we    observe         that       when   the     civil    subpoena

statutes were amended to incorporate a "reasonable diligence"

requirement, the criminal subpoena statutes remained unchanged.

       ¶39    In the 1970s, as part of a revision to Wisconsin's

civil     procedure         code,       the    legislature            enacted       Wis.    Stat.

§ 805.07(5), which incorporates Wis. Stat.                              § 801.11(1)(b) and

its "reasonable diligence" standard.                       See Wis. Stat. § 805.07(5)

(1975-76) (effective Jan. 1, 1976); Rules of Civil Procedure
Committee 1970-1978.
                                               14
                                                                               No.     2015AP671-CR



       ¶40    At the time that Wis. Stat. § 805.07(5) was enacted,

the    legislature         did    not    alter      Wis.        Stat.    § 885.03.          If    the

legislature intended Wis. Stat. § 805.07(5) to apply to criminal

proceedings, it could have repealed Wis. Stat. § 885.03 and thus

removed the option of service by leaving a copy of the subpoena

at the witness's abode.                 It did not.         Alternatively, at the time

that Wis. Stat. § 805.07(5) was enacted, it could have amended

Wis.       Stat.     § 885.03       to       include        a     "reasonable         diligence"

requirement or to include a reference to Wis. Stat. §§ 805.07 or

801.11.      It did neither.             In 1993, the legislature last took the

opportunity to amend Wis. Stat. § 885.03 and there yet remains

no    reference       to    either       reasonable         diligence          or    Wis.     Stat.

§ 801.11(1).5

       ¶41    In    contrast,       in       2010    when       it     amended      Chapter      968,

which      governs    the        commencement        of     criminal       proceedings,           the

legislature        specifically          referenced         Wis.       Stat.     § 801.11.         In

amending      the     chapter,          it    created           Wis.     Stat.       § 968.375(5)

(governing subpoenas and warrants for records or communications
of customers of an electronic communication service or remote

computing service provider).                   It provides that "[a] subpoena or

warrant issued under this section may be served in the manner

provided for serving a summons under s. 801.11(5) . . ."                                         Wis.

Stat. § 968.375(5).



       5
       The 1993 amendment changed the statute to make it gender
neutral, but otherwise did not alter the statute.


                                                15
                                                                          No.     2015AP671-CR



       ¶42     If    Wis.   Stat.    § 801.11       already    applied          to    criminal

cases, it would be unnecessary to specifically reference this

civil    statute       in   Wis.     Stat.        § 968.375(5).           We     should      not

interpret      a     statute   in    a     way    that   renders      a    portion      of    it

superfluous.         Hutson v. State of Wis. Pers. Comm'n, 2003 WI 97,

¶49,     263    Wis. 2d 612,         665     N.W.2d 212       (quoting          Kollasch      v.

Adamany,       104    Wis. 2d 552,         563,    313   N.W.2d 47        (1981))       ("When

construing         statutes,   meaning       should      be   given       to    every   word,

clause and sentence in the statute, and a construction which

would make part of the statute superfluous should be avoided

wherever possible.").               If we were to conclude that Wis. Stat.

§ 801.11 already applied to the service of a subpoena in all

criminal cases, the language incorporating it into Wis. Stat.

§ 968.375 would be rendered superfluous.

       ¶43     This court's decision in State v. Popenhagen, 2008 WI

55, 309 Wis. 2d 601, 749 N.W.2d 611, also informs our analysis.

In Popenhagen, the State obtained documents in a criminal case

with subpoenas issued pursuant to Wis. Stat. § 805.07.                                     Id.,
¶¶7-8.       The parties agreed that the State erred in issuing the

subpoenas pursuant to Wis. Stat. § 805.07 because it should have

followed the procedure set forth in the criminal statutes.                                 Id.,

¶10.

       ¶44     The    Popenhagen      court       determined    that       the       documents

obtained with the subpoena must be suppressed because otherwise

the safeguards established by the criminal statutes regarding

the service of subpoenas would be rendered meaningless.                                    Id.,
¶71.     The concurrence in Popenhagen pointedly explained, "[t]he
                                             16
                                                                      No.     2015AP671-CR



criminal law has its own subpoena statutes . . . The Wisconsin

criminal code specifically provides that Chapter 885, Witnesses

and Oral Testimony, 'shall apply in all criminal proceedings.'"

Id.,   ¶¶138-39    (Ziegler,       J.,    concurring)          (quoting      Wis.    Stat.

§ 972.11(1)).       Likewise, the          Popenhagen         concurrence correctly

observed that Wis. Stat. § 805.07 is "a civil subpoena statute

meant for civil litigants."             Id., ¶141.

       ¶45   Our interpretation that Wis. Stat. § 885.03                          provides

the procedure for serving a              witness subpoena in a criminal case

appears to be well established.                 Indeed, the Wisconsin Criminal

Practice & Procedure Handbook, in both its first and second

editions,     instructs       that       service     of        a   subpoena       may    be

accomplished      "simply     by . . . leaving            a    copy   of     it    at    the

witness's     residence."          Christine         M.       Wiseman,      Nicholas     L.

Chiarkas,    &    Daniel    D.    Blinka,       9    Wis.      Practice:          Criminal

Practice and Procedure § 24.11 (1996); Christine M. Wiseman and

Michael Tobin, 9 Wis. Practice:                 Criminal Practice & Procedure

§ 24.13 (2016).
       ¶46   Thus, although both the civil and criminal procedures

statutes     incorporate         Wis.      Stat.      § 805.03,          they       do    so

differently.       In   the      civil    context,        Wis.     Stat.    § 885.03      is

modified by Wis. Stat. §§ 805.07 and 801.11 by providing for

substituted      service      premised          on    a       reasonable        diligence

requirement.      However, in the criminal context, the procedures

set forth in Wis. Stat. § 885.03 are unaltered.                            It sets forth

three manners of service of a witness subpoena (by exhibiting
and reading it to the witness, giving the witness a copy, or by
                                           17
                                                                 No.     2015AP671-CR



leaving it at the witness's abode) and no reasonable diligence

is mandated.        Accordingly, we determine that the procedures set

forth in Wis. Stat. § 885.03 govern the service of a witness in

a criminal proceeding.

      ¶47    This does not mean, however, that a party is precluded

from employing substituted service with reasonable diligence.

In many circumstances it may appear to be the prudent way to

proceed.     However, the statute as written does not mandate it.6

      ¶48    We turn now to examine whether the service of the

subpoena in this case was done in accordance with Wis. Stat.

§ 885.03.        It is undisputed that Wilson served the witness with

a   subpoena      by   leaving   it    at     the    witness's   abode    with   her

daughter.        When the witness failed to appear to testify at the

hearing, defense counsel moved to adjourn the hearing in order

to resubpoena the witness.                  The State suggested, and defense

counsel agreed, that the court issue a body attachment.

      ¶49    After     reviewing      the    subpoena,    however,     the   circuit

court concluded that its service was inadequate.                       It reasoned
that "you have to attempt on a couple of occasions and make

reasonable efforts before you can serve by substitute service."

The circuit court proceeded to ask defense counsel and the State

whether     it   was   "wrong    on   the     law"   regarding   service.        Both

agreed that the court            was correct that multiple attempts at

      6
       Additionally, we observe that a circuit court retains
discretion to issue a body attachment.   Pursuant to Wis. Stat.
§ 885.11(2), for an attachment to issue there must have been an
"unexcused failure to appear."


                                            18
                                                          No.     2015AP671-CR



personal service must be made before leaving a subpoena at a

witness's abode.

    ¶50    The circuit court concluded that "the problem that I

have here is that this is not a valid subpoena and I could not

issue a body attachment based on this subpoena."           It denied both

the body attachment and refused to adjourn the hearing so that

the witness could be resubpoenaed.           The circuit court erred,

because as set forth above, Wilson complied with Wis. Stat.

§ 885.03, which allows service of a subpoena on a witness in a

criminal case by leaving the subpoena at a witness's abode.

    ¶51    Finally,    we   pause      briefly   to     discuss     Wilson's

ineffective assistance of counsel claims.             Wilson asserts that

his trial counsel was ineffective for failing to argue that the

service   of   the   subpoena   was    proper,   or   alternatively,      for

failing to properly subpoena the witness.7            He further contends




    7
       Wilson argues in his brief that if the court finds he
forfeited the argument that Brown was properly subpoenaed, it
should address his ineffective assistance of counsel claims.

                                                                (continued)
                                      19
                                                                No.    2015AP671-CR



that at the suppression hearing he was prejudiced by the absence

of the testimony of a key witness.

       ¶52    In order to succeed on an ineffective assistance of

counsel      claim,   a   defendant     must   show   both:      (1)    that    his

counsel's      representation     was    deficient;       and   (2)    that    this

deficiency prejudiced him.            Strickland v. Washington, 466 U.S.

668,    687    (1984).       To   show       prejudice,    a    defendant      must

demonstrate that there is "a reasonable probability that, but


     Generally, issues not raised or considered by the circuit
court will not be considered for the first time on appeal.
State v. Holland Plastics Co., 111 Wis. 2d 497, 504, 331 N.W.2d
320 (1983).   However, it is within this court's discretion to
disregard alleged forfeiture and consider the merits of any
issue because the rule of forfeiture is one of judicial
administration and not of power.    See, e.g., State v. Beamon,
2013 WI 47, ¶49, 347 Wis. 2d 559, 830 N.W.2d 681; State ex rel.
Universal Processing Serv. of Wis., LLC v. Cir. Ct. of Milwaukee
Cty., 2017 WI 26, ¶53, 374 Wis. 2d 26, 892 N.W.2d 267 ("Rules of
forfeiture and waiver are rules of judicial administration, and
thus, a reviewing court may disregard a waiver or forfeiture and
address the merits of an unpreserved issue in an appropriate
case."); D.L. Anderson's Lakeside Leisure Co., Inc. v. Anderson,
2008 WI 126, ¶41, 314 Wis. 2d 560, 757 N.W.2d 803 (we may
address a forfeited issue at our discretion when we deem it
important).

     Although trial counsel did not object to the circuit
court's ruling that Brown was not properly subpoenaed, we
decline to apply the forfeiture rule here. The dissent contends
that application of the forfeiture rule is appropriate to avoid
a strategy in which trial counsel fails to object for strategic
reasons.   However, there is no evidence that counsel failed to
object for strategic reasons in this case.

     Additionally, the argument raised on appeal has been
briefed and argued by both parties.    Accordingly, we choose to
address Wilson's argument set forth above in order to clarify
the important issue of law that is presented in this case.


                                        20
                                                                              No.     2015AP671-CR



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.

          ¶53    We     need     not     determine         whether          Wilson      received

ineffective assistance of counsel because Wilson prevailed on

his   statutory          interpretation         argument.           As      Wilson's     counsel

explained         at    oral        argument,    his       ineffective         assistance      of

counsel claim was raised as an alternative argument if the court

did   not       address       the    merits     of    Wilson's      claim.          Because    we

determine that Wilson properly subpoenaed the witness and remand

for       an    evidentiary          hearing,        we    do     not       address     Wilson's

ineffective assistance of counsel claim.

                                                 V

          ¶54    In sum, we conclude that the circuit court erred in

determining           that    Wilson    improperly         served       a   subpoena     on   the

witness.         Wilson complied with Wis. Stat. § 885.03, which allows

service of a subpoena on a witness in a criminal case by leaving
the subpoena at a witness's abode.                          Because the subpoena was

properly served, we reverse the court of appeals and remand to

the circuit court for a continuance of the suppression hearing

so that Wilson may take the witness's testimony.

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

reversed and the cause is remanded to the circuit court.




                                                21
                                                                  No.   2015AP671-CR.akz


      ¶55     ANNETTE    KINGSLAND      ZIEGLER,        J.   (dissenting).           Even

if, as the court today concludes, the circuit court below erred

in its assessment of the validity of the subpoena of Jacqueline

Brown ("Brown"), Keimonte Antonie Wilson, Sr. ("Wilson") failed

to   object    to    that     error.     Under        well-established      precedent,

Wilson therefore forfeited the right to direct review of the

alleged error and this            court will only inquire into whether

Wilson's counsel was constitutionally ineffective in neglecting

to challenge the circuit court's ruling on the subpoena.                             See,

e.g., State v. Erickson, 227 Wis. 2d 758, 765-67, 596 N.W.2d 749

(1999).

      ¶56     Unfortunately,       I    must      dissent       because     the     court

deviates      from    this     "normal      procedure        in   criminal        cases,"

analyzing      Wilson's       claim    on       the    merits     without     adequate

justification.          Id.     I would adhere to precedent and analyze

whether Wilson received the effective assistance of counsel.                            I

conclude that Wilson's ineffective assistance of counsel claim

fails because he has not demonstrated that he was prejudiced by
his counsel's performance.             Suppression would have occurred with

or without Brown's testimony, and the decision of the court of

appeals     should      be    affirmed.          Accordingly,       I     respectfully

dissent.

                                            I

      ¶57     This case arose following an incident on May 2 or 3,

2013,1 in Milwaukee, Wisconsin, during which Wilson was seen

      1
       There is a discrepancy in the record regarding the date of
the incident.


                                            1
                                                                    No.   2015AP671-CR.akz


exiting     an     alleged    "known       and   active    drug      house"      and   was

searched     by     a    Milwaukee    police      officer;     the        officer   found

suspected        crack   cocaine     on    his   person.      On     May    8,   2013,   a

criminal complaint was filed against Wilson in Milwaukee County

circuit court charging him with one count of possession with

intent to deliver a controlled substance (cocaine) in the amount

of between 5 to 15 grams, second and subsequent offense, in

violation of Wis. Stat. § 961.41(1m)(cm)2.                     See also Wis. Stat.

§ 961.48(1)(b).

      ¶58    On June 24, 2013, Wilson filed a motion to suppress

evidence of the crime.             On December 3, 2013, a hearing was held

on   the    motion.        The     first    to   testify      was    Officer     William

Savagian         ("Officer       Savagian")       of    the     Milwaukee           Police

Department.        Officer Savagian testified that on May 2, 2013, at

about 7:00 p.m., he and his two partners——one male, one female——

were in the area of West Meinecke Avenue and North 18th Street

in the City of Milwaukee.                 Officer Savagian had worked in this

particular area for over seven years.                      Officer Savagian was
parked      on    the    street    "to     conduct     followup       on    a    reckless

endangering safety complaint" when he saw Wilson exit a red

sport utility vehicle ("SUV") and walk into the back yard of a

"known and active drug house."               The SUV was "more or less parked

behind the house in . . . what almost was like a vacant field."

There was a sign in the field that read "no parking, dumping or

trespassing."

      ¶59    Officer Savagian lost sight of Wilson for "not more
than 15, 20 seconds," after which he saw Wilson walk back to his

                                             2
                                                                    No.    2015AP671-CR.akz


vehicle and reenter it.            At that time Officer Savagian and one

of his partners, Officer James Hunter ("Officer Hunter"), were

already in the process of approaching the SUV.2                             According to

Officer         Savagian,   his   speed    was       a    "normal     walk"       and     the

officers' guns were not drawn.                 Officer Savagian walked up to

the driver's side door, which Wilson opened.                              Officer Hunter

went       to   the   passenger   side    of   the       vehicle.         There   was     one

additional individual in the front passenger seat.

       ¶60      Officer Savagian testified that he believed he would

have identified himself as a police officer.                              He then asked

Wilson if he had any drugs or firearms on his person.                               Wilson

responded        in   the   negative,    exited      the    vehicle       without       being

asked, stuck his arms out "like an airplane" and told Officer

Savagian he could search Wilson.3                 Officer Savagian stated that

Wilson was "shaking" and his eyes "became real wide," "[w]ider

than I guess normal people -- or someone that is scared would

look."



       2
       Officer Savagian was not aware of the position of the
third, female officer at this point in time.
       3
       Officer Savagian testified, "I don't know if that was his
exact words, but it was -- him stepping out with his arms raised
was implied."     Pressed on this point on cross-examination,
Officer Savagian elaborated:

       Yes, he did say I could search him. I don't know if
       he -- what I meant to say, the exact wording of that,
       but his arms extended obviously implies more of a
       willingness to search and there was never a like,
       ["]hey, I don't want you to search me["] or any kind
       of -- he never stopped the search either.


                                           3
                                                                  No.   2015AP671-CR.akz


       ¶61        Officer Savagian asked Wilson, "[']If I do search you,

am I going to find anything on you[?']"                      Wilson replied "no."

With his arms still out, Wilson informed Officer Savagian that

he was on probation.              Officer Savagian asked whether it was "for

drugs or guns," and Wilson "indicated that it was for drugs."

Officer Savagian searched Wilson and found, among other things,

"a plastic sandwich bag" containing "three individually bagged

up . . . chunks            of    this   white      chunky   substance"——"suspected

crack cocaine."            Officer Savagian gave the substance to one of

his partners and told Wilson he was going to be handcuffed.

       ¶62        After Officer Savagian's testimony at the hearing, the

defense called Darryl Roberts ("Roberts").                        Roberts testified

that Wilson was a friend of his as well as Roberts' sister's

boyfriend.          On the date and at the time in question, Roberts was

sitting in the front passenger seat of a "truck" with Wilson.

Roberts denied that the lot was vacant, stating, "[i]t's our

yard."4       Wilson was "talking to [Roberts] about school."                   Wilson

received a call from his father and then stepped out of the
vehicle to go to his father's house.                   About five minutes later,

Wilson returned to the vehicle, whereupon three officers arrived

and ordered Wilson and Roberts out of the vehicle.                        In Roberts'

telling, two of the officers, both male, had "their guns out."

One of the male officers was on the driver's side of the vehicle

"pointing the gun at" Wilson.                   Roberts agreed that the officer

"had       both    hands    on   the    gun"    and   the   gun   was   "pointed    out


       4
           Roberts testified that he lived on West Meinecke.


                                               4
                                                              No.     2015AP671-CR.akz


directly in front of him."           The other male officer "was coming

to the passenger side with his gun drawn telling [Roberts] to

get out of the car."          That officer was holding his gun in the

same way as the other officer.

    ¶63     Wilson     and    Roberts       exited     the    vehicle;       Roberts

testified that the officer put his gun back into its holster,

"grabbed [his] arm" and then Roberts "stepped out."                          Without

being   asked,    Roberts    was    immediately       searched.        The   officer

asked Roberts if he had "anything illegal on [him]," and Roberts

replied    that   he   did   not.     Meanwhile       the    female    officer    was

"walking     around    the   premises"       and     "[s]earching       around    the

truck."

    ¶64     After Roberts testified, Wilson's attorney explained

that one of the defense witnesses, Brown, had not "responded to

the subpoena by attending"; Brown was "at work" and "couldn't

find anybody to cover her shift."                  Wilson's attorney informed

the court:

    [I]t's my understanding that if she were to testify,
    she would be testifying that she was at the residence
    at the time that the police came to the what is
    essentially the back of her residence.        It's my
    understanding that she would testify that she observed
    them with guns drawn approach the vehicle and take
    both my client and her son, [Roberts], out of the
    vehicle. And I don't want to presume too much on the
    testimony, but it's my understanding that that is very
    clearly what she would be testifying to.
    ¶65     Wilson's attorney stated that he was "wondering if the

Court may be willing to grant one adjournment for the taking of

[Brown's] testimony."        The State took no position on the matter.
The circuit court commented:

                                        5
                                                      No.   2015AP671-CR.akz

       The issue is . . . do we need to have a body
       attachment and have her brought to continue this
       hearing. . . . [I]f I'm going to set another date,
       she's going to be picked up with a warrant . . . . I'm
       not going to set another date and then hope that this
       time she decides to come.
       ¶66   In considering whether to issue a body attachment or

whether to proceed without Brown, the circuit court remarked

that the manner in which the officers approached the vehicle

seemed to be "the only key issue of all the testimony" thus far.

The State then took the position that the circuit court should

issue a body attachment.        Wilson's attorney began to suggest

that perhaps the circuit court could call Brown to have her come

into court.     The circuit court rejected this approach: "I don't

cajole witnesses to come to my court.          There will be a body

attachment."       Shortly   thereafter   Wilson's    attorney     stated,

"Judge, I hate to make the request, but I think that I have no

other choice but to ask that the Court issue a body attachment."

       ¶67   The circuit court asked to see the subpoena.         However,

upon examination, the circuit court concluded that the subpoena

was not valid and that an attachment could not be issued after

all.    The circuit court commented: "It looks like [the subpoena]

was only served once and it was served by substituted service,

and . . . under Wisconsin law, you have to attempt on a couple

of occasions and make reasonable efforts before you can serve by

substituted     service."     The   circuit   court    then    questioned

Wilson's attorney and received the following answer:

            THE COURT: . . . [D]o you have -- do you believe
       that I'm wrong on the law?

            [WILSON'S ATTORNEY]: I don't have any reason to
       challenge the court on the law.
                                  6
                                                                 No.    2015AP671-CR.akz


Consequently, the hearing proceeded without Brown's testimony.

    ¶68     Wilson testified next.             Wilson stated that on May 2,

2013, at about 7:00 p.m. to 7:30 p.m., he was "parked in back of

[his] [girlfriend's] house -- mother's house" and that Roberts

was with him.         Wilson denied being parked in the vacant lot.

Wilson left to urinate in his father's back yard and returned to

the vehicle "probably like less than a minute" later.                          Upon his

return, Wilson saw "three officers running up with their guns

pointed at -- in [his] direction."                The officers were running at

a "medium jog," and all three officers had their guns out and

"pointed."     According to Wilson, the female officer was running

behind the two male officers.              One officer went to the driver's

side of the vehicle and another went to the passenger's side of

the vehicle.        An officer told Wilson to get out of the truck.

Wilson    testified    that     he   did   not    at    first    realize       that   the

officers    were    officers     because       they     were    in     plain   clothes.

Wilson was scared and got out of the car because he thought the

officers were going to shoot and because he did not know what
was going on.

    ¶69     Once Wilson was out of the car, one of the officers

stated that the officers were "Milwaukee police."                          Wilson did

not offer to be searched, but an officer started patting him

down with one hand and with his gun out and pointed at Wilson in

the other hand.        Wilson saw a bulletproof vest on the officer.

The officer asked Wilson where he was coming from, and Wilson

explained    that    he   was   coming     from    his    father's       house.       The
officer    asked    whether     Wilson     was     on    probation,       and     Wilson

                                           7
                                                               No.   2015AP671-CR.akz


explained that he was.            When asked why he was on probation,

Wilson answered that he was on probation "for drugs."                          Wilson

testified that he stutters when is he is scared, and that he was

stuttering at the time.           Wilson had his arms raised up in the

air (as opposed to "like an airplane") and felt he had "no

choice" but to let the officer reach into his pocket.                          Wilson

was eventually handcuffed.             The officer never stated aloud that

he     had   found    anything    on    Wilson's    person.          Besides     this

testimony, evidence was introduced at the hearing that Wilson

had three prior convictions.

       ¶70    The State called Officer Hunter as a rebuttal witness.

Officer      Hunter's    testimony     was    similar    to   Officer   Savagian's

except that Officer Hunter testified that Wilson was away from

his vehicle for approximately, and no more than, ten minutes and

that    Officer      Griffin   walked    toward    the   vehicle     with   Officer

Savagian and Officer Hunter.                 The following exchange occurred

during Officer Hunter's testimony:

            Q: At any point in time prior to approaching the
       parked truck did you have your weapon drawn?

              A:   No.

            Q: Did Officer Savagian have his weapon drawn
       did you see?

              A:   No.

              Q:   Officer Griffin?

              A:   No.

              . . . .

            Q: At any point of time in this encounter with
       either [Roberts] . . . or Mr. Wilson did any of the
       officers have their guns out?
                                  8
                                                              No.    2015AP671-CR.akz

           A:    No.
    ¶71    Finally, the State called Officer Savagian back to the

stand.    The following exchange occurred:

         Q: At any point in time during the apprehension
    of Mr. Wilson, either before, during or after the
    apprehension of Mr. Wilson, did you draw your service
    weapon?

           A:    I did not.

         Q: Did you see either Officer Griffin or Officer
    Hunter draw their weapons?

           A:    I did not.

         Q: On that day . . . do you recall whether                           or
    not you were wearing a [bulletproof] vest?

           A:    I was not. . . .

         Q: Have you conducted a -- in your career as a
    Milwaukee police officer, have you ever conducted a
    search of a person by holding a gun in your hand and
    searching with your other hand?

         A: I have; however, it's only under the most
    like high intense moments.   Maybe you are making an
    entry on a warrant and someone runs at you and you
    just pat him down. It's -- it's under the most duress
    situation you could be in. It's not ideal at all.
On cross-examination, Officer Savagian agreed that he did not
actually know whether Officer Griffin drew her gun or not since

she was not in his line of vision after the three exited their

vehicle, but added that "she wasn't anywhere around" Officer

Savagian and Officer Hunter.

    ¶72    The circuit court denied Wilson's motion to suppress,

concluding    that     the   officers'       interaction      was    supported      by

reasonable      suspicion    and   that       the    search     of        Wilson   was
consensual.        The   court     explained        that   it       had     had    "the


                                         9
                                                                       No.    2015AP671-CR.akz


opportunity        to    hear       the   testimony        and    assess      the    demeanor

and . . . believability of the witnesses."                             It concluded that

"regarding this gun situation" it found "the officers' testimony

to be much more credible and believable than Mr. Wilson and

Mr. Roberts.         [Es]pecially given the inconsistencies between the

testimony of Mr. Wilson and Mr. Roberts."

       ¶73    The court stated that it found Officer Savagian to be

a "very credible witness."                 With regard to the search of Wilson,

the     court      noted     that     Officer        Savagian      had     testified       that

searching       with     a   gun    in    one   hand      was    reserved      for    a    "very

unusual high stress situation," and that although "high stress

is a relative term," "for police officers doing this sort of

work every day, this is hardly a high stress time what was

described to me here."                    Additionally, while Officer Savagian

"testified with a detailed recollection of what was said and

what    was     offered"       at   the    time      of   the    search,      Wilson      simply

testified "that he did not offer to let the officers search

him."
       ¶74    The      court    also      found      Officer      Hunter      to     be    "very

believable," "very calm as he testified," and "very clear that

none of the officers had their guns drawn": "Not only what he

was saying, but basically the way he was saying it led me to

believe that he was true -- that he was telling the truth.                                   And

he    was    not    in   the    courtroom         when    the    other       witnesses     were

testifying regarding the guns."

       ¶75    The      court    found      less      credible      a     number      of    other
aspects of the testimony of Roberts and Wilson, such as the way

                                                10
                                                                    No.    2015AP671-CR.akz


the officers were allegedly carrying their guns, the account of

Roberts being pulled out of the car, and the notion that Officer

Griffin would have approached the SUV with her gun pointed while

behind       the    other    two    officers.        The    court     also     noted    that

Roberts was "very specific that only two of the officers had

their guns out."            The court stated:

           At the end of the day, I find Officer Savagian's
      explanation much more credible as to -- rather than
      this sort of A-Team paramilitary attack on the car by
      three officers, especially with the third officer
      basically having her gun at her colleague's heads
      which I didn't find to be credible . . . .
The court observed that "under these circumstances, there was no

testimony really other than Mr. Wilson who unfortunately has

been convicted of a crime three times, so his credibility is

somewhat at issue.            Plus he has a vested interest in this case."

      ¶76      The court also remarked that it did not "see at the

end of the day how [Brown's testimony] would have assisted the

Court     or   assisted       Mr.    Wilson    with    his     motion."        The     court

explained that while "it would be one thing if both Mr. Roberts

and Mr. Wilson had testified totally consistently," they had not

done so.           Consequently, Brown would either have been "backing

one     or     the    other     or    maybe        providing    yet       an   additional

explanation."

      ¶77      On December 23, 2013, Wilson pleaded guilty to one

count     of       possession       with   intent      to    deliver       a   controlled

substance (cocaine) in the amount of greater than 5 to 15 grams.5

A judgment of conviction was entered, and the circuit court
      5
          The second and subsequent enhancer was dropped.

                                              11
                                                              No.       2015AP671-CR.akz


sentenced Wilson to three years of initial confinement and two

years of extended supervision.

       ¶78   On     January    6,    2015,    Wilson   filed        a     motion    for

postconviction relief.              On March 12, 2015, the circuit court

denied the motion.          On April 1, 2015, Wilson filed a notice of

appeal.      On July 6, 2016, the court of appeals affirmed the

judgment of conviction and the circuit court's order denying

Wilson's motion for postconviction relief.                 State v. Wilson, No.

2015AP671-CR, unpublished slip op. (Wis. Ct. App. July 6, 2016)

(per curiam).        On August 4, 2016, Wilson filed a petition for

review in this court.           On October 11, 2016, this court granted

the petition.

                                         II

       ¶79   The    issues    raised    on    this   appeal    pertain         to   the

circuit court's ruling that the subpoena of Brown was not valid.

But Wilson's attorney was asked by the circuit court point-blank

if he wished to object to the circuit court's ruling on the

subpoena, and the attorney declined to do so.                   "The absence of
any objection warrants that we follow 'the normal procedure in

criminal cases,' which 'is to address waiver within the rubric

of the ineffective assistance of counsel.'"                   State v. Carprue,

2004   WI    111,    ¶47,     274    Wis. 2d 656,    683    N.W.2d 31         (quoting

Erickson, 227 Wis. 2d at 766).

       ¶80   Put differently, the court today validates Wilson's

approach of: (1) consenting to the circuit court's ruling on the

subpoena at the suppression hearing; (2) waiting to see if he
succeeded on his motion to suppress; and (3) only after losing

                                         12
                                                                   No.   2015AP671-CR.akz


that motion, objecting to the court's ruling on the subpoena.

See, e.g., Erickson, 227 Wis. 2d at 766 ("If the waiver rule did

not exist, a party could decline to object for strategic reasons

and raise the error only when that party needed an advantage at

some point in the trial."); State v. Caban, 210 Wis. 2d 597,

600,   611,    563     N.W.2d 501       (1997)      (defendant      waived    issue    of

probable cause to search a vehicle by failing to raise the issue

before the circuit court).                  On the other hand, Wilson is not

without a remedy.          He possesses state and federal constitutional

rights to the effective assistance of counsel and may challenge

the performance of his attorney in failing to object to the

court's ruling on the subpoena.                   See, e.g., State v. Thiel, 2003

WI 111, ¶18, 264 Wis. 2d 571, 665 N.W.2d 305 (citing U.S. Const.

amends.      VI,    XIV;   Wis.      Const.       art.   I,     § 7);    Erickson,    227

Wis. 2d at 766.         I now conduct our well-established ineffective

assistance         inquiry,    and     conclude       that     Wilson's    ineffective

assistance of counsel claim fails because he was not prejudiced

by his counsel's performance.
                                            III

       ¶81    "Whether     a   convicted      defendant         received   ineffective

assistance      of    counsel     is    a    two-part         inquiry.     First,     the

defendant must prove that counsel's performance was deficient.

Second, if counsel's performance was deficient, the defendant

must prove that the deficiency prejudiced the defense."                              State

v. Carter, 2010 WI 40,               ¶21, 324 Wis. 2d 640, 782 N.W.2d 695

(citations omitted).           Relevant to this case, "there is no reason
for a court deciding an ineffective assistance claim to approach

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the inquiry in the same order or even to address both components

of the inquiry if the defendant makes an insufficient showing on

one."      Strickland v. Washington, 466 U.S. 668, 697 (1984).

      ¶82    Assuming that, as the court today holds, the circuit

court   below      erred   in     its   assessment   of   the    validity     of    the

subpoena under review, I conclude that it is unnecessary to

determine     whether      Wilson's      attorney    performed        deficiently    in

failing to object to the court's ruling.                    This is so because

even if the attorney performed deficiently, that deficiency did

not prejudice Wilson.

      ¶83    To show prejudice Wilson must establish 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 (quoting Strickland, 466 U.S. at

694).      Wilson must "offer more than rank speculation to satisfy

the prejudice prong."             Erickson, 227 Wis. 2d at 744.            He cannot

meet this burden.

      ¶84    The circuit court made clear that it found Officer
Savagian and Officer Hunter to be highly credible witnesses and

found their "testimony to be much more credible and believable

than Mr. Wilson and Mr. Roberts."                The circuit court was aware

that Brown would likely testify that she saw the police officers

approach the SUV with guns drawn and take Wilson and Roberts out

of   the    car,    but    this    did   not    change    its   findings      at    the

conclusion of the suppression hearing.                The circuit court simply

did not consider a "sort of A-Team paramilitary attack on the
car" likely under the circumstances.

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      ¶85       Additionally, as the circuit court noted, Wilson and

Roberts were not consistent in their testimony.                         Thus, had Brown

testified,        her    testimony       likely    would     have     been    inconsistent

with either Wilson's account, Roberts' account, or both.                                 For

example, Wilson testified that all three officers had their guns

drawn      as    they    approached       the     SUV,    while     Roberts      was   "very

specific that only two of the officers had their guns out."

Perhaps Brown would have testified that two officers had drawn

their      guns.        Perhaps    Brown     would       have   testified       that   three

officers had drawn their guns.                      Or perhaps Brown would have

provided a new version of events.                   Regardless, nothing but "rank

speculation"          supports     the     conclusion       that      Brown    would    have

provided an account so credible——despite being inconsistent with

either Wilson's testimony, Roberts' testimony, or both——that the

circuit court would have immediately dismissed the testimony of

Officer         Savagian     and        Officer     Hunter      and     suppressed          the

challenged evidence.              Indeed, this would be highly unlikely: on

top   of    the       circuit   court's      extensive       findings       regarding       the
relative        credibility        of     Officer     Savagian,        Officer      Hunter,

Roberts,        and     Wilson,    Brown     would       have   been    starting       at    a

disadvantage from a credibility perspective; as Roberts' mother,

she obviously had an interest in the case.

      ¶86       Thus, assuming the circuit court should have obtained

Brown's testimony and that Wilson's attorney was deficient in

failing to object to the circuit court's actions, Wilson has not

shown that "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding

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would   have     been      different."                  Carter,     324     Wis. 2d 640,         ¶37

(quoting     Strickland,           466       U.S.        at   694).          His     ineffective

assistance claim fails.

                                                   IV

    ¶87     Even if, as the court today concludes, the circuit

court   below      erred      in   its       assessment        of    the     validity       of   the

subpoena of Brown, Wilson failed to object to that error.                                    Under

well-established precedent, Wilson therefore forfeited the right

to direct review of the alleged error and this court will only

inquire     into      whether       Wilson's            counsel      was     constitutionally

ineffective      in    neglecting             to    challenge        the     circuit        court's

ruling on the subpoena.                      See, e.g., Erickson, 227 Wis. 2d at

765-67.

    ¶88      Unfortunately,              I    must        dissent         because     the     court

deviates     from      this        "normal         procedure         in     criminal        cases,"

analyzing       Wilson's       claim          on        the   merits        without     adequate

justification.          Id.        I would adhere to precedent and analyze

whether Wilson received the effective assistance of counsel.                                      I
conclude that Wilson's ineffective assistance of counsel claim

fails because he has not demonstrated that he was prejudiced by

his counsel's performance.                   Suppression would have occurred with

or without Brown's testimony, and the decision of the court of

appeals     should      be     affirmed.                 Accordingly,         I     respectfully

dissent.

    ¶89     I    am    authorized            to    state      that     Justice       MICHAEL     J.

GABLEMAN joins this opinion.



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