944 N.W.2d 575
Wis.2020Background
- In 2014 Skindzelewski was charged with misdemeanor theft-by-contractor for 2010 conduct; the three-year statute of limitations applied.
- Public Defender Joseph Smith did not raise the statute-of-limitations defense; Skindzelewski pled guilty in 2015, was sentenced to eight months, and served ~122 days.
- Postconviction counsel successfully moved to vacate the conviction in April 2016 because the prosecution was time-barred; Skindzelewski was released.
- Skindzelewski sued Smith for legal malpractice; the State (representing the public defender) admitted negligence but invoked the "actual innocence" rule as a defense.
- The circuit court and court of appeals granted summary judgment for the defense under Hicks v. Nunnery; the Wisconsin Supreme Court affirmed, refusing to create the requested exception to the actual innocence rule.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a criminal defendant who concedes guilt can sue a defense lawyer for malpractice when the lawyer's failure to raise the statute of limitations caused an unlawful conviction | Skindzelewski: adopt a narrow exception to Hicks — no need to prove actual innocence where counsel's negligence produced a conviction unauthorized by law | State/Smith: Hicks requires proof of actual innocence; public policy bars recovery by guilty defendants even if counsel was negligent | Court: Affirmed Hicks; no exception for statute-of-limitations claims here — concession of guilt bars malpractice recovery |
| Whether expiration of the statute of limitations (or its effect on jurisdiction/statutory right) justifies creating an exception | Skindzelewski: SL divests court of jurisdiction and confers a right not to be prosecuted, so malpractice recovery should be allowed | State/Smith: objection to jurisdiction is forfeited if not timely raised; statutory protection does not warrant exception to Hicks | Court: Forfeiture and statutory nature of the right preclude treating this as a basis to evade the actual innocence rule |
Key Cases Cited
- Hicks v. Nunnery, 253 Wis. 2d 721, 643 N.W.2d 809 (Wis. Ct. App. 2002) (establishes the actual innocence requirement in criminal legal malpractice actions)
- Wiley v. County of San Diego, 966 P.2d 983 (Cal. 1998) (policy discussion supporting limitations on malpractice recovery by guilty convicts)
- Glenn v. Aiken, 569 N.E.2d 783 (Mass. 1991) (distinguishes legal guilt and suggests exceptions where counsel's negligence causes conviction)
- Johnson v. Babcock, 136 P.3d 77 (Or. Ct. App. 2006) (allows malpractice recovery when sentence exceeded statutory maximum)
- Powell v. Associated Counsel for Accused, 106 P.3d 271 (Wash. Ct. App. 2005) (permits recovery where defendant served time beyond statutory maximum)
- Hilario v. Reardon, 960 A.2d 337 (N.H. 2008) (narrow post-conviction exception where malpractice unrelated to the conviction itself)
- Levine v. Kling, 123 F.3d 580 (7th Cir. 1997) (suggests actual innocence may not be required when counsel fails to identify a complete legal defense, such as statute of limitations)