Supreme Court declines to create actual innocence rule exception in legal malpractice case

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The Wisconsin Supreme Court declined to create an exception to the actual-innocence rule for a contractor who sued his state-appointed defense attorney after he went to jail.

The State charged David Skindzelewski with theft by contractor in 2014. The criminal complaint said Skindzelewski received about $1,200 to install roof vents on a family home in 2010 but never did the work. Because the amount was less than $2,500, the offense was a Class A misdemeanor, which has a three-year statute of limitations.

The State Public Defender’s Office appointed Attorney Joseph Smith Jr. to represent Skindzelewski. Smith never raised the three-year statute of limitations as a defense, and neither the prosecutor nor the presiding judge recognized the statute of limitations barred a conviction in this case. Skindzelewski pleaded guilty to the charge in 2015 and was sentenced to eight months in jail.

While in jail, Skindzelewski’s new attorney filed a postconviction motion calling for the vacation of the conviction because the statute of limitations had expired. The circuit court granted the motion in 2016. Skindzelewski was immediately released from jail after already spending four months behind bars for the crime.

Skindzelewski sued Smith for legal malpractice. The State admitted Smith’s negligence but pleaded several affirmative defenses, including the actual-innocence rule set forth in Hicks v. Nunnery. Both parties moved for summary judgment.

Skindzelewski asked the circuit court to adopt an exception to the actual-innocence rule, as applied by certain foreign jurisdictions in cases involving sentencing errors. The circuit court declined to adopt an exception to the law and granted the State’s motion for summary judgment. Skindzelewski appealed, and the Court of Appeals found it had no power to modify the law and rejected his argument for creating an exception.

The state Supreme Court took up the case, and the majority affirmed the appellate court’s decision on Thursday. Justice Rebecca Bradley delivered the majority opinion and was joined by Chief Justice Patience Roggensack, Justice Dan Kelly and Justice Annette Ziegler.

Bradley wrote that in order to pursue a civil claim for damages against a negligent criminal defense attorney, a plaintiff must also show he was actually innocent of the crime for which he was convicted.

Skindzelewski asked the court to adopt a “narrow” exception to the actual-innocence rule, which would relieve a plaintiff of establishing innocence whenever defense counsel’s negligence results in a conviction or sentence unauthorized by law.

Bradley said failing to raise the statute of limitations would sever the causal link between a criminal defendant’s culpable behavior and the time spent incarcerated when the defendant is actually guilty.

“Unlike the cases on which Skindzelewski relies, all of which involved errors committed by counsel after conviction, Skindzelewski’s claim rests on a legal error that would have precluded his conviction notwithstanding his guilt,” Bradley wrote.

The majority found Skindzelewski hadn’t satisfied his burden of establishing a compelling reason to change existing law, and nothing about his case warranted making an exception.

“The law does not recognize a cause of action for a criminal defendant against his attorney merely because a more competent attorney could have achieved a better result,” Bradley wrote.

Hagedorn filed a concurring opinion, in which he parted with the majority on the rational of Hicks.

“If the moral foundation of the actual innocence rule pronounced in Hicks is sound, then the distinctions the majority makes do not seem relevant,” Hagedorn wrote.

He wrote that he would entertain a rethinking of Hicks, but Skindzelewski did not ask the court to do that. Therefore, he saw no reason to make an exception to the rationale of Hicks.

Justice Rebecca Dallet dissented from the majority. She said she would create a narrow exception to the innocence rule in legal malpractice cases where defense counsel’s failure to raise a valid statute of limitations defense results in an unlawful conviction.

“(A)llowing Skindzelewski to recover is not ‘rewarding this guilty defendant for his crime’ as the majority suggests … because Skindzelewski was legally innocent and, but for defense counsel’s error, he could not have been convicted,” Dallet wrote.

Justice Ann Walsh Bradley withdrew from participation. Follow @WLJReporter