Full Opinion (html_with_citations)
2024 WI App 4

                 COURT OF APPEALS OF WISCONSIN
                      PUBLISHED OPINION

Case No.:              2023AP458-CR



Complete Title of Case:


              STATE OF WISCONSIN,

                     PLAINTIFF-RESPONDENT,

                V.

              DUSTIN J. VANDERGALIEN,

                     DEFENDANT-APPELLANT.



Opinion Filed:          December 29, 2023
Submitted on Briefs:    October 19, 2023

JUDGES:                 Kloppenburg, P.J., Nashold, and Taylor, JJ.

Appellant
ATTORNEYS:              On behalf of the defendant-appellant, the cause was submitted on the
                        briefs of Mark D. Richards and Natalie L. Wisco of Richards &
                        Associates, S.C., Racine.

Respondent
ATTORNEYS:              On behalf of the plaintiff-respondent, the cause was submitted on the
                        brief of Lisa E.F. Kumfer, assistant attorney general, and Joshua L.
                        Kaul, attorney general.
2024 WI App 4

       COURT OF APPEALS
           DECISION                                             NOTICE
        DATED AND FILED                         This opinion is subject to further editing. If
                                                published, the official version will appear in
                                                the bound volume of the Official Reports.
         December 29, 2023
                                                A party may file with the Supreme Court a
              Samuel A. Christensen             petition to review an adverse decision by the
             Clerk of Court of Appeals          Court of Appeals. See WIS. STAT. § 808.10 and
                                                RULE 809.62.




Appeal No.          2023AP458-CR                                             Cir. Ct. No. 2020CF146

STATE OF WISCONSIN                                          IN COURT OF APPEALS



STATE OF WISCONSIN,

       PLAINTIFF-RESPONDENT,

  V.

DUSTIN J. VANDERGALIEN,

       DEFENDANT-APPELLANT.




                 APPEAL from a judgment and an order of the circuit court for Dodge
County: MARTIN J. DeVRIES, Judge. Affirmed.

                 Before Kloppenburg, P.J., Nashold, and Taylor, JJ.

        ¶1       KLOPPENBURG, P.J. Dustin VanderGalien pleaded no contest to
three counts:        (1) homicide by operation of a motor vehicle while having a
detectable amount of a restricted controlled substance in his blood as a second or
                                                                                   No. 2023AP458-CR




subsequent offense; (2) causing great bodily harm by operation of a motor vehicle
while having a detectable amount of a restricted controlled substance in his blood;
and (3) causing injury by operation of a motor vehicle while having a detectable
amount of a restricted controlled substance in his blood as a second or subsequent
offense.       The restricted controlled substance at issue in all three counts is a
metabolite of cocaine. The circuit court imposed a sentence totaling 21 years and
six months of initial confinement and 18 years of extended supervision.

          ¶2      On appeal, VanderGalien challenges the constitutionality of WIS.
STAT. § 340.01(50m)(c) (2021-22), insofar as it includes “[c]ocaine or any of its
metabolites” in the definition of a restricted controlled substance for purposes of
prosecution under the Wisconsin motor vehicle code (WIS. STAT. § 23.33 and
chs. 340-349 and 351), on the ground that this statutory provision lacks a rational
basis.1       Specifically, VanderGalien argues that there is no rational basis for

          1
           At the outset, we clarify the scope of VanderGalien’s constitutional challenge. As stated
in detail below, VanderGalien was charged with and pleaded no contest to offenses involving the
operation of a motor vehicle with a detectable amount of a restricted controlled substance in his
blood, under both the Wisconsin motor vehicle code and the criminal code. See, e.g., WIS. STAT.
§ 346.63(2)(a)3 (prohibiting causing injury by operation of a motor vehicle with a detectable
amount of a restricted controlled substance in the blood, in the motor vehicle code); WIS. STAT.
§ 940.09(1)(am) (imposing criminal penalties for homicide by operation of a motor vehicle with a
detectable amount of a restricted controlled substance in the blood, in the criminal code); WIS.
STAT. § 940.025(1)(am) (imposing criminal penalties for causing great bodily harm by operation
of a motor vehicle with a detectable amount of a restricted controlled substance in the blood, in the
criminal code). The definition of a restricted controlled substance in WIS. STAT. § 340.01(50m)(c)
applies to the charges under the motor vehicle code; the definition of a restricted controlled
substance in WIS. STAT. § 939.22(33) applies to the charges under the criminal code. The two
definitions are identical, but throughout his briefing VanderGalien frames his argument as
challenging only the inclusion of inactive, non-impairing metabolites of cocaine in the definition
of a restricted controlled substance under § 340.01(50m)(c), as that definition applies to what he
terms “all operation of a motor vehicle with a detectable amount of restricted controlled substance
offenses” in the motor vehicle code. VanderGalien does not cite or otherwise refer to the identical
definition in § 939.22(33). Accordingly, we confine our analysis to the definition in
§ 340.01(50m)(c) as it applies to the charges under the motor vehicle code, and we do not address
§ 939.22(33) as it applies to the charges under the criminal code.

          All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.



                                                  2
                                                                     No. 2023AP458-CR




including inactive, non-impairing metabolites of cocaine in the definition of a
restricted controlled substance. VanderGalien also appeals the circuit court’s order
denying without a hearing his motion for postconviction relief, which asserted that:
(1) his due process rights were violated because of a prosecutorial conflict of
interest; and (2) he is entitled to withdraw his pleas because (a) trial counsel
rendered constitutionally ineffective assistance by not explaining the effect of
dismissed and read-in charges and (b) as a result of counsel’s failure, VanderGalien
did not understand their effect and so did not knowingly, intelligently, and
voluntarily enter his pleas.

       ¶3     We conclude that the inclusion of metabolites of cocaine in the
definition in WIS. STAT. § 340.01(50m)(c) of a “restricted controlled substance” for
purposes of prosecution under the Wisconsin motor vehicle code is constitutional.
We further conclude that VanderGalien is not entitled to an evidentiary hearing on
the claims raised in his motion for postconviction relief. Accordingly, we affirm.

                                BACKGROUND

       ¶4     The criminal complaint alleged as follows.         At approximately
6:30 p.m. on July 30, 2019, VanderGalien was driving east in the westbound lane
of County Road B in the Town of Burnett in Dodge County and struck head-on two
motor vehicles driving west in the westbound lane of the road. The three occupants
in the first motor vehicle that VanderGalien struck suffered minor injuries. Three
of the four occupants in the second motor vehicle that VanderGalien struck suffered
serious injuries and the fourth occupant died. After first responders removed
VanderGalien from his motor vehicle, he was placed under arrest. Because of his
severe injuries, he was then transported by helicopter to a hospital. VanderGalien’s
blood was drawn pursuant to a search warrant nearly four hours after the collisions.


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                                                                                 No. 2023AP458-CR




The results of the testing of VanderGalien’s blood showed 240 ng/mL of the cocaine
metabolite benzoylecgonine (“BE”).

        ¶5      In the criminal complaint, the State charged VanderGalien with
numerous offenses related to the July 2019 collisions. VanderGalien filed a motion
to dismiss seven of the counts, all of which alleged that VanderGalien was operating
a motor vehicle with a detectable amount of a restricted controlled substance in his
blood. VanderGalien argued that WIS. STAT. § 340.01(50m)(c), the statute defining
a restricted controlled substance as “[c]ocaine or any of its metabolites,” which
includes BE, for purposes of prosecution under the Wisconsin motor vehicle code,
is unconstitutional because all of the metabolites of cocaine are “inactive” and have
no “impairing effect.” Accordingly, VanderGalien argued, there is no rational
relationship between prohibiting having a detectable amount of an inactive and non-
impairing metabolite of cocaine, such as BE, in the blood while operating a motor
vehicle and any legitimate public interest in roadway safety.2

        ¶6      The circuit court denied the motion, based on VanderGalien’s expert’s
testimony that cocaine metabolizes in the bloodstream very quickly and that BE
remains in the bloodstream for much longer. Thus, according to the expert, in the
case of a driver with cocaine in the driver’s system at the time of a collision, cocaine
may be “out of the [bloodstream] by the time the [driver’s] blood is drawn” but BE
will be detectable at the time of the blood draw. The court reasoned that the
“legislature has taken a zero tolerance approach” that “eliminates complex methods
of proving guilt.” The court concluded that that statutory approach, reflected here




        2
         The State has not, in the circuit court or on appeal, contested that BE is an inactive and
non-impairing metabolite of cocaine.



                                                4
                                                                               No. 2023AP458-CR




by prohibiting having a detectable amount of BE in the blood while operating a
motor vehicle, has a rational basis.

        ¶7      The State filed an amended information charging VanderGalien with
more serious offenses following the completion of a report by the Wisconsin State
Patrol Technical Reconstruction Unit. According to the report, the driver of the
motor vehicle that VanderGalien passed before continuing east in the westbound
lane told officers that she saw VanderGalien driving erratically after he passed her.
VanderGalien stayed in the westbound lane of the road and was travelling east at
76-77 miles per hour in a 55-mile-per-hour zone between .1 and 5 seconds before
he collided with the left front of the first motor vehicle, which had steered right
towards the shoulder to avoid a direct head-on collision. VanderGalien continued
east for 38 feet and struck the second motor vehicle directly head-on.

        ¶8      In June 2021, the parties reached a plea agreement. On June 29, 2021,
as part of the plea agreement, the State filed an amended information charging
thirteen counts.3 VanderGalien pleaded no contest to the following counts in the
June 29 amended information: one count of homicide by operation of a motor
vehicle with a detectable amount of a restricted controlled substance in the blood as
a second or subsequent offense; one count of causing great bodily harm by operation
of a motor vehicle while having a detectable amount of a restricted controlled
substance in the blood; and one count of causing injury by operation of a motor

        3
           The June 29, 2021 amended information charged VanderGalien with one count of
homicide by operation of a motor vehicle while having a detectable amount of a restricted
controlled substance in his blood; one count of causing great bodily harm by operation of a motor
vehicle while having a detectable amount of a restricted controlled substance in his blood; five
counts of causing injury by operation of a motor vehicle while having a detectable amount of a
restricted controlled substance in his blood; one count of first-degree recklessly causing bodily
harm; and five counts of first-degree recklessly endangering safety.

        Six of the counts were charged as second or subsequent offenses.



                                               5
                                                                        No. 2023AP458-CR




vehicle with a detectable amount of a restricted controlled substance in the blood as
a second or subsequent offense. The remaining counts were dismissed and read in.
The circuit court imposed consecutive sentences totaling 21 years and 6 months of
initial confinement and 18 years of extended supervision.

       ¶9     VanderGalien filed a motion for postconviction relief arguing that:
(1) the circuit court erroneously denied his pretrial motion to dismiss all counts
involving the operation of a motor vehicle with a detectable amount of a restricted
controlled substance in the blood on the ground that the inclusion of inactive, non-
impairing metabolites of cocaine in the definition of a restricted controlled
substance in WIS. STAT. § 340.01(50m)(c) is unconstitutional because it lacks a
rational basis; (2) “all proceedings” should be invalidated because he was denied
his constitutional due process rights when the Dodge County District Attorney’s
office failed to disclose a disqualifying conflict of interest and did not appoint a
special prosecutor; (3) he is entitled to withdraw his no contest pleas because his
trial counsel was constitutionally ineffective by failing to properly explain the effect
of dismissed and read-in charges; and (4) as a result of trial counsel’s failure,
VanderGalien did not understand their effect and is, therefore, entitled to withdraw
his no contest pleas because they were not knowingly, intelligently, and voluntarily
entered. The circuit court denied VanderGalien’s motion without holding an
evidentiary hearing.

       ¶10    VanderGalien appeals.

                                   DISCUSSION

       ¶11    VanderGalien reasserts on appeal the four issues raised in his motion
for postconviction relief. We address each issue in turn.



                                           6
                                                                                No. 2023AP458-CR



I. Constitutionality of prohibiting having a detectable amount of a metabolite
                     of cocaine in the blood while driving

        ¶12     This issue concerns the statutes in the Wisconsin motor vehicle code
that describe offenses involving the operation of a motor vehicle with a detectable
amount in a person’s blood of a restricted controlled substance as defined in WIS.
STAT. § 340.01(50m).4 That statute defines “restricted controlled substance” for
purposes of prosecution under the Wisconsin motor vehicle code to include
“[c]ocaine or any of its metabolites.” Sec. 340.01(50m)(c). VanderGalien argues
that the inclusion of inactive, non-impairing metabolites of cocaine in the definition
of a restricted controlled substance in § 340.01(50m)(c) for purposes of prosecution
under the Wisconsin motor vehicle code is unconstitutional because it lacks a
rational basis.

        ¶13     As a preliminary matter, we first address the parties’ disagreement as
to whether VanderGalien sufficiently raised and preserved this issue for appeal. “As
a general rule, issues not raised in the circuit court will not be considered for the
first time on appeal.” State v. Dowdy,
2012 WI 12, ¶5
,
338 Wis. 2d 565
,
808 N.W.2d 691
. Whether a claim is forfeited or adequately preserved for appeal is a
question of law that this court reviews de novo. State v. Corey J.G.,
215 Wis. 2d 395, 405
,
572 N.W.2d 845
 (1998). “It is a fundamental principle of appellate review
that issues must be preserved at the circuit court. Issues that are not preserved at the
circuit court, even alleged constitutional errors, generally will not be considered on
appeal.” State v. Huebner,
2000 WI 59, ¶10
,
235 Wis. 2d 486
,
611 N.W.2d 727
.



        4
          See, e.g., WIS. STAT. § 346.63(1)(am) (prohibiting operating a motor vehicle with a
detectable amount of restricted controlled substance in the blood); § 346.63(2)(a)(3) (prohibiting
causing injury by operation of a motor vehicle with a detectable amount of a restricted controlled
substance in the blood).



                                                7
                                                                       No. 2023AP458-CR




       ¶14    To determine whether VanderGalien adequately preserved this issue
for appeal, we must determine what type of constitutional challenge VanderGalien
has raised. There are two general types of constitutional challenges to statutes:
facial and as-applied. Mayo v. Wisconsin Injured Patients and Fams. Comp.
Fund,
2018 WI 78, ¶24
,
383 Wis. 2d 1
,
914 N.W.2d 678
 (citing League of Women
Voters of Wis. Educ. Network, Inc. v. Walker,
2014 WI 97, ¶13
,
357 Wis. 2d 360
,
851 N.W.2d 302
). Our supreme court has explained that a facial constitutional
challenge is one in which a party challenges a law “as being unconstitutional on its
face. Under such a challenge, the challenger must show that the law cannot be
enforced ‘under any circumstances.’” Mayo,
383 Wis. 2d 1, ¶24
 (citing League of
Women Voters,
357 Wis. 2d 360, ¶13
 (quoting State v. Wood,
2010 WI 17, ¶13
,
323 Wis. 2d 321
,
780 N.W.2d 63
)). The court continued, “In contrast, in an as-
applied [constitutional] challenge, we assess the merits of the challenge by
considering the facts of the particular case in front of us, ‘not hypothetical facts in
other situations.’ Under such a challenge, the challenger must show that [the
challenger’s] constitutional rights were actually violated.” Mayo,
383 Wis. 2d 1, ¶24
.

       ¶15    In VanderGalien’s motion for postconviction relief, he argued, in part,
that the circuit court erred in denying his motion to dismiss the counts involving his
operating a motor vehicle with the restricted controlled substance BE in his blood.
Specifically, VanderGalien argued that the inclusion of BE as a metabolite of
cocaine in the definition of a restricted controlled substance in WIS. STAT.
§ 340.01(50m)(c) has no rational relationship to protecting the highways from
drugged drivers. To the extent that VanderGalien raised in his motion and raises on
appeal an as-applied challenge to this statute, that challenge was waived by his plea.
“[A] guilty, no contest, or Alford plea ‘waives all nonjurisdictional defects,


                                          8
                                                                      No. 2023AP458-CR




including constitutional claims,’” other than facial constitutional challenges. State
v. Jackson,
2020 WI App 4, ¶¶8-9
,
390 Wis. 2d 402
,
938 N.W.2d 639
 (quoted
source omitted).

       ¶16    We next turn to whether VanderGalien raised a facial challenge to the
constitutionality of the statute in the circuit court. In support of his motion to
dismiss, VanderGalien argued that including inactive, non-impairing metabolites of
cocaine in the definition of a restricted controlled substance under WIS. STAT.
§ 340.01(50m)(c) is unconstitutional because it irrationally prohibits a non-
impairing substance from being detected in a person’s blood when that person
operates a motor vehicle. VanderGalien clarified that he was “challenging whether
an inactive [non-impairing] cocaine metabolite can alone form the basis for a
violation” and arguing that “criminalizing driving while having a non-impairing
metabolite in [a driver’s] blood is not reasonably and rationally related to a
legitimate public interest” like roadway safety and is, therefore, unconstitutional.
At the hearing on the motion, the circuit court summarized the challenge as a “facial
challenge [based] on the language of the statute” and VanderGalien’s trial counsel
agreed, arguing that the statute is “unconstitutional, not only [as applied] to
[VanderGalien]” but “facially unconstitutional 
 as applied to anybody.”

       ¶17    Thus, VanderGalien challenged the constitutionality of WIS. STAT.
§ 340.01(50m)(c) by effectively arguing that the statute cannot be enforced under
any circumstances because there is no impairment with the mere presence of an
inactive, non-impairing metabolite of cocaine in one’s system. Therefore, we
conclude that he did preserve for appeal a facial constitutional challenge, which we
now consider.




                                         9
                                                                       No. 2023AP458-CR




       ¶18    As stated, VanderGalien challenges the constitutionality of WIS.
STAT. § 340.01(50m)(c), arguing that the prohibition against having a detectable
amount of an inactive, non-impairing metabolite of cocaine in the blood while
driving for purposes of prosecution under the Wisconsin motor vehicle code violates
substantive due process. The due process clause of the United States Constitution
provides: “No state shall ... deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.” U.S. CONST. amend. XIV, § 1. Our supreme court has held
that the due process clause of the Wisconsin Constitution is substantially equivalent
to the Fourteenth Amendment due process clause of the United States Constitution.
State ex rel. Cresci v. Schmidt,
62 Wis. 2d 400, 414
,
215 N.W.2d 361
 (1974). “Due
process requires that the means chosen by the legislature bear a reasonable and
rational relationship to the purpose or object of the enactment; if it does, and the
legislative purpose is a proper one, the exercise of the police power is valid.” State
v. McManus,
152 Wis. 2d 113, 130
,
447 N.W.2d 654
 (1989) (citing State v.
Jackman,
60 Wis. 2d 700, 705
,
211 N.W.2d 480
 (1973)).

       ¶19    The constitutionality of a statute presents a question of law that we
review de novo. State v. Cole,
2003 WI 112, ¶10
,
264 Wis. 2d 520
,
665 N.W.2d 328
. When a party challenges a law as being unconstitutional on its face, the party
must show that the law cannot be enforced “under any circumstances.” Wood,
323 Wis. 2d 321, ¶13
. “If a challenger succeeds in a facial attack on a law, the law is
void ‘from its beginning to the end.’” Wood,
323 Wis. 2d 321, ¶13
 (quoting State
ex rel. Comm’rs of Pub. Lands v. Anderson,
56 Wis. 2d 666, 672
,
203 N.W.2d 84
(1973)).

       ¶20    “A facial constitutional challenge to a statute is an uphill endeavor.”
State v. Dennis H.,
2002 WI 104, ¶5
,
255 Wis. 2d 359
,
647 N.W.2d 851
. “The party

                                          10
                                                                       No. 2023AP458-CR




challenging a statute must establish its unconstitutionality beyond a reasonable
doubt.” Id., ¶12. When the constitutionality of a statute is being challenged, “the
phrase ‘beyond a reasonable doubt’ expresses the ‘force or conviction with which a
court must conclude, as a matter of law, that a statute is unconstitutional before the
statute or its application can be set aside.’” League of Women Voters,
357 Wis. 2d 360, ¶17
 (quoted source omitted). “Every presumption must be indulged to sustain
the law if at all possible and, wherever doubt exists as to a legislative enactment’s
constitutionality, it must be resolved in favor of constitutionality.” State ex rel.
Hammermill Paper Co. v. La Plante,
58 Wis. 2d 32, 46
,
205 N.W.2d 784
 (1973).

       ¶21    The parties agree that the challenged statute here does not implicate a
fundamental right or suspect class and, therefore, it is subject to rational basis
scrutiny. See State v. Luedtke,
2015 WI 42, ¶76
,
362 Wis. 2d 1
,
863 N.W.2d 592
(“We apply rational basis scrutiny to [a] statute [when] the statute does not implicate
a fundamental right or suspect class.”).

       ¶22    To repeat, WIS. STAT. § 340.01(50m) defines “restricted controlled
substance” for purposes of prosecution under the Wisconsin motor vehicle code to
include “[c]ocaine or any of its metabolites.” Sec. 340.01(50m)(c). The legislative
memo accompanying the enactment of the statute explains that the statute is part of
a statutory scheme that intends to “prohibit[] operating a motor vehicle 
 with a
detectable amount of a restricted controlled substance in the bloodstream.”
Wisconsin Legislative Council Act memo for 2003 Wis. Act 97 (Dec. 16, 2003),
https://docs.legis.wisconsin.gov/2003/related/lcactmemo/ab458.pdf. “[T]here is no
requirement that the person was ‘under the influence’ of that restricted controlled
substance. Evidence of a detectable amount is sufficient.” Id. As additional context
for the law’s enactment, the memo explains that it “is often difficult to prove that a



                                           11
                                                                       No. 2023AP458-CR




person who has used a restricted controlled substance was ‘under the influence’ of
that substance.” Id.

       ¶23    Thus, WIS. STAT. § 340.01(50m) is part of a statutory scheme that
creates a “zero tolerance” approach to driving a motor vehicle after illegally
ingesting a restricted controlled substance, without regard to impairment. State v.
Smet,
2005 WI App 263, ¶¶13, 17
,
288 Wis. 2d 525
,
709 N.W.2d 474
 (stating that
the statutory scheme requires “absolute sobriety” in terms of a restricted controlled
substance, as it has long prohibited driving with a specified concentration of alcohol
in the blood regardless of impairment). As explained in greater detail below, our
supreme court has held this “strict liability, zero tolerance approach” to a restricted
controlled substance to be constitutional. Luedtke,
362 Wis. 2d 1, ¶77
.

       ¶24    According to uncontroverted testimony by VanderGalien’s expert,
cocaine breaks down, or in other words metabolizes, into metabolites, including BE.
BE is an inactive, non-impairing metabolite of cocaine.            Depending on an
individual’s method and amount of ingestion, cocaine can be detected in the blood
for about 5 hours to 10 and one-half hours after ingestion, while BE typically
remains detectable for up to 48 hours.

       ¶25    In Luedtke, our supreme court explained that “[i]n addressing the
problem of drugged driving, the legislature could have reasonably and rationally
concluded that proscribed substances range widely in purity and potency and thus
may be unpredictable in their duration and effect.”
Id.,
362 Wis. 2d 1, ¶77
 (quoted
source omitted). Thus, to “make prosecutions easier,” and because there is “no
‘reliable measure’ of impairment” for illicit drugs, “the legislature could have
reasonably concluded that the more sensible approach was to ban drivers from
having any amount in their systems.” Id., ¶¶69, 77 (quoting Smet,
288 Wis. 2d 525
,


                                          12
                                                                      No. 2023AP458-CR




¶17). Accordingly, the court determined that the legislature “rationally conclude[d]
that a strict liability, zero-tolerance approach is the best way to combat drugged
driving.” Luedtke,
362 Wis. 2d 1, ¶77
.

       ¶26    VanderGalien does not argue generally that there is no rational basis
for the statutory “strict liability, zero tolerance approach” that the Luedtke court
concluded is constitutional. See id., ¶77. Rather, he argues that the cases upholding
the constitutionality of the zero tolerance approach do not address the situations in
which, as here, the only substance found in the blood is an inactive and non-
impairing metabolite. See Smet,
288 Wis. 2d 525, ¶2
 (defendant’s blood had
measurable concentration of delta-9-tetrahydrocannabinol, the primary active
ingredient in marijuana, as well as two metabolites of tetrahydrocannabinol);
Luedtke,
362 Wis. 2d 1, ¶13
 (defendant’s blood test indicated detectable amounts
of cocaine and BE). He further argues that there is no rational basis for imposing
strict liability based on the presence of an inactive, non-impairing metabolite in the
blood under WIS. STAT. § 340.01(50m)(c), because prohibiting having an inactive,
non-impairing metabolite in the blood while operating a motor vehicle lacks a
rational connection to roadway safety. Specifically, he argues that, due to the spread
between the time it takes for cocaine to metabolize (and no longer be present in the
blood) and the amount of time that the inactive, non-impairing metabolite BE
remains in the blood, the presence of that metabolite in the blood does not always
indicate that an individual was impaired by cocaine at the time that the individual
was driving. That is, an individual could ingest cocaine hours before driving such
that cocaine was no longer in the individual’s blood at the time the individual was
driving but an inactive, non-impairing metabolite such as BE was in the individual’s
blood, yet the individual was not impaired by cocaine when driving.




                                         13
                                                                      No. 2023AP458-CR




       ¶27    VanderGalien is essentially arguing that there will be more instances
of “false positives”—cases in which there was no cocaine in an individual’s blood
when the individual was driving but an inactive, non-impairing metabolite such as
BE was still detectable at the time the blood was drawn—than “true positives”—
cases in which there was cocaine in an individual’s blood when the individual was
driving but, due to a delay, by the time the blood was drawn all that remained
detectable was BE. However, whether or not there will be more situations in which
an individual has a detectable amount of an inactive, non-impairing metabolite such
as BE but was not impaired as compared to situations in which the individual was
impaired is not the test we apply to determine whether a statute is facially
constitutional.   The question is whether prohibiting having an inactive, non-
impairing metabolite such as BE in the blood while operating a motor vehicle bears
a reasonable and rational relationship to the legislative purpose of promoting
roadway safety and preventing drugged driving. See Smet,
288 Wis. 2d 525, ¶7
(“When the exercise of the police power is challenged on due process grounds, the
test is whether the means chosen have a reasonable and rational relationship to the
purpose or object of the enactment.”).

       ¶28    VanderGalien’s argument itself implies that there will be “true
positives,” thereby positing the circumstances that exemplify why it was rational for
the legislature to include “[c]ocaine or any of its metabolites,” which includes
inactive, non-impairing metabolites such as BE, in the definition of a restricted
controlled substance. Indeed, as VanderGalien’s own expert testified, an individual
may ingest cocaine and, up to nine hours later, while the cocaine is still detectable
in the individual’s blood, operate a motor vehicle. The individual could then be
stopped and arrested and have blood drawn one or two hours after the individual
had been driving. At that point, the cocaine will likely no longer be detectable and


                                         14
                                                                       No. 2023AP458-CR




only BE will be detectable. In such a case, BE accurately indicates that the
individual had a detectable amount of cocaine in the individual’s blood at the time
of driving. Moreover, in cases when, as here, a collision occurs involving several
motor vehicles and numerous individuals who require immediate medical attention,
including the driver and the victims, it may be several hours before the driver’s
blood can be drawn. If an inactive, non-impairing metabolite such as BE was not
included as a restricted controlled substance, the State may be unable to prosecute
drugged drivers in such cases even though the driver had an impairing substance,
cocaine, in the blood while driving.

       ¶29    VanderGalien fails to show that the legislature could not have
reasonably determined that the inclusion of inactive, non-impairing metabolites
such as BE in the definition of a restricted controlled substance is a reasonable
means of combatting drugged driving. Thus, he fails to show that the statute
containing that definition lacks the rational basis articulated in Luedtke for the zero
tolerance approach that the court in that case deemed constitutional. See Luedtke,
362 Wis. 2d 1, ¶77
. In other words, VanderGalien fails to meet his heavy burden to
overcome the presumption of constitutionality. See Hammermill Paper Co.,
58 Wis. 2d at 46
.

       ¶30    In sum, we conclude that the inclusion of “[c]ocaine or any of its
metabolites” in the definition of a restricted controlled substance for purposes of
prosecution under the Wisconsin motor vehicle code bears a rational relationship to




                                          15
                                                                                    No. 2023AP458-CR




the purpose or objective of the statutory scheme. Accordingly, VanderGalien’s
facial challenge to the statute’s constitutionality fails.5

       II. Entitlement to an evidentiary hearing on remaining claims for
                              postconviction relief

        ¶31     VanderGalien argues that the circuit court erred in denying without an
evidentiary hearing the remaining claims in his motion for postconviction relief.
We first summarize the standard of review and legal principles that apply to the
issue of whether a motion for postconviction relief entitles a defendant to an
evidentiary hearing. We then explain why we reject VanderGalien’s argument as
to each of his claims in turn.

        ¶32     The standard of review of a circuit court’s decision denying a motion
for postconviction relief without a hearing is well established. A postconviction
motion must allege sufficient material facts that, if true, would entitle the defendant
to relief. State v. Ruffin,
2022 WI 34, ¶27
,
401 Wis. 2d 619
,
974 N.W.2d 432
. A
motion does not entitle a defendant to relief if it contains “only conclusory
allegations, or if the record conclusively demonstrates that the defendant is not
entitled to relief.” Id., ¶28. Whether a motion suffices to entitle a defendant to
relief is a question of law that this court reviews de novo. State v. Sulla,
2016 WI 46, ¶23
,
369 Wis. 2d 225
,
880 N.W.2d 659
; State v. Allen,
2004 WI 106, ¶9
,
274 Wis. 2d 568
,
682 N.W.2d 433
.

        ¶33     If the motion suffices to entitle the defendant to relief, then the circuit
court is required to grant a hearing on the motion. State v. Jackson,
2023 WI 3, ¶8
,

        5
           VanderGalien also asserts that the substances listed in WIS. STAT. § 340.01(50m) other
than metabolites of cocaine are all impairing substances. However, VanderGalien does not
satisfactorily explain why that means that the inclusion of non-impairing metabolites of cocaine
such as BE lacks a rational basis. For this reason, and the reasons stated above, this argument fails.



                                                 16
                                                                        No. 2023AP458-CR
405 Wis. 2d 458
,
983 N.W.2d 608
. If the motion does not suffice to entitle the
defendant to relief, then it is within the court’s discretion as to whether to hold a
hearing. Id.; Allen,
274 Wis. 2d 568, ¶9
.

   A. Invalidation of proceedings based on alleged prosecutorial conflict of
                                   interest

       ¶34    VanderGalien argues that he made a sufficient factual showing of a
prosecutorial conflict of interest to entitle him to an evidentiary hearing on his claim
that “all proceedings” should be invalidated because of the resulting violation of his
due process rights.

                               Additional Background

       ¶35    After VanderGalien and the State reached a plea agreement but prior
to sentencing, VanderGalien and his trial counsel became aware that a legal assistant
in the office of the district attorney prosecuting the case had a close personal
relationship with the deceased victim. More specifically, the legal assistant’s
daughter had previously dated the deceased victim, and the legal assistant’s family
and the victim had all spent time together over the course of the daughter and the
victim’s relationship, as the legal assistant explained in a victim impact statement
letter submitted to the circuit court prior to sentencing. The legal assistant’s
daughter also submitted a letter to the court prior to sentencing that referenced their
past relationship.

       ¶36    In his sentencing memorandum, VanderGalien argued that the
relationship between the legal assistant and the deceased victim raised an inference
that the district attorney was biased against VanderGalien.            Based on this,
VanderGalien asked that the circuit court take the district attorney’s alleged bias
into consideration and review the district attorney’s sentencing recommendations


                                          17
                                                                       No. 2023AP458-CR




accordingly. In his motion for postconviction relief, VanderGalien argued that the
district attorney’s alleged bias created a conflict of interest that required that “all
proceedings prior to discovery of the conflict [] be invalidated.”

                                       Analysis

       ¶37    On appeal, VanderGalien renews his argument that due to the alleged
prosecutorial conflict of interest, VanderGalien’s right to due process was violated
and “all proceedings prior to the discovery of the conflict should be nullified.”
VanderGalien cites State v. Smith as support for his assertion that “[a] prosecutor’s
conflict of interest in a criminal matter can create prejudice necessitating
invalidation of the entire proceedings.” See State v. Smith,
198 Wis. 2d 584, 591
,
543 N.W.2d 512
 (Wis. App. 1995). We understand VanderGalien to be arguing
that, because of the alleged conflict of interest, this entire criminal proceeding must
begin anew.

       ¶38    VanderGalien’s claim does not entitle him to relief because
VanderGalien did not timely move to invalidate the proceedings based on the
district attorney’s alleged conflict of interest. Thus, VanderGalien forfeited any
claim that the alleged conflict of interest amounted to a due process violation
warranting invalidation of all proceedings prior to the discovery of the conflict.

       ¶39    A defendant’s rights may be forfeited “by the failure to make timely
assertion of the right before a tribunal having jurisdiction to determine it.” United
States v. Olano,
507 U.S. 725, 731
 (1993) (quoting Yakus v. United States,
321 U.S. 414, 444
,
64 S. Ct. 660
 (1944)). “To preserve an alleged error for review, ‘trial
counsel or the party must object in a timely fashion with specificity to allow the
court and counsel to review the objection and correct any potential error.’” State v.
Torkelson,
2007 WI App 272, ¶25
,
306 Wis. 2d 673
,
743 N.W.2d 511
 (quoted

                                          18
                                                                          No. 2023AP458-CR




source omitted).     Forfeiture “prevents attorneys from ‘sandbagging’ opposing
counsel by failing to object to an error for strategic reasons and later claiming that
the error is grounds for reversal.” State v. Pinno,
2014 WI 74, ¶56
,
356 Wis. 2d 106
,
850 N.W.2d 207
.

       ¶40     Despite being made aware of the relationship between the legal
assistant and the deceased victim one week prior to sentencing, VanderGalien did
not move to invalidate the proceedings before sentencing based on the alleged
conflict of interest or ask that the district attorney be taken off the case and a special
prosecutor be appointed. Rather, VanderGalien raised the alleged conflict of
interest in his sentencing memorandum for the purpose of arguing that, in light of
the district attorney’s alleged bias, the circuit court should consider the alleged bias
“when assessing the reasonableness of” the district attorney’s sentencing
recommendations. VanderGalien did not seek to invalidate the proceedings based
on the alleged conflict of interest until after he was sentenced, in his motion for
postconviction relief, thereby depriving the district attorney and the circuit court of
the opportunity to timely address his claim. By failing to timely seek invalidation
of the criminal proceeding based on the alleged conflict of interest, VanderGalien
forfeited this claim.

       ¶41     VanderGalien’s claim also does not entitle him to relief under the
“normal procedure in criminal cases” for addressing forfeiture, which is “within the
rubric of the ineffective assistance of counsel.” See State v. Erickson,
227 Wis. 2d 758, 766
,
596 N.W.2d 749
 (1999). That is, although VanderGalien did not allege
that his trial counsel was constitutionally ineffective by failing to move to invalidate
the proceedings prior to sentencing based on the alleged conflict of interest, the
record conclusively shows that trial counsel was not ineffective for failing to do so.



                                           19
                                                                      No. 2023AP458-CR




       ¶42     A defendant claiming ineffective assistance of counsel must establish
both that (1) counsel’s performance was deficient and (2) the deficient performance
prejudiced the defense. Strickland v. Washington,
466 U.S. 668, 687
 (1984). If a
defendant fails to satisfy one prong, we need not consider the other.
Id. at 697
. We
conclude that the record conclusively shows that trial counsel did not perform
deficiently.

       ¶43     Counsel’s performance is “constitutionally deficient if it falls below
an objective standard of reasonableness.” State v. Thiel,
2003 WI 111, ¶19
,
264 Wis. 2d 571
,
665 N.W.2d 305
. “We are ‘highly deferential’ to counsel’s decisions,
provided they are objectively reasonable and strategic.” State v. Mull,
2023 WI 26, ¶35
,
406 Wis. 2d 491
,
987 N.W.2d 707
 (quoting Breitzman,
378 Wis. 2d 431, ¶65
). “[W]e examine trial counsel’s choices ‘in the context of the circumstances as
they existed at the time [counsel] made [counsel’s] decisions.’” Mull,
406 Wis. 2d 491, ¶36
 (quoting State v. Pico,
2018 WI 66, ¶22
,
382 Wis. 2d 273
,
924 N.W.2d 95
).

       ¶44     “Whether a defendant received ineffective assistance of counsel is a
mixed question of law and fact.” State v. Maday,
2017 WI 28, ¶25
,
374 Wis. 2d 164
,
892 N.W.2d 611
. The circuit court’s findings of fact will not be disturbed
unless those findings are clearly erroneous.
Id.
 “‘The circumstances of the case
and 
 counsel’s conduct and strategy’ are considered findings of fact.”
Id.
 (quoted
source omitted). However, whether those facts constitute deficient performance and
whether such deficient performance was prejudicial are questions of law that we
review independently. State v. Tulley,
2001 WI App 236, ¶5
,
248 Wis. 2d 505
,
635 N.W.2d 807
.




                                         20
                                                                      No. 2023AP458-CR




       ¶45    Here, the record conclusively shows that VanderGalien’s trial counsel
made a reasonable strategic decision by emphasizing the alleged conflict of interest
within the context of sentencing in order to seek leniency, rather than seeking to
invalidate the criminal proceeding, thereby requiring that the State start anew by
filing a new criminal complaint.      Given the undisputed factual basis for the
charges—that VanderGalien was speeding in the wrong lane for over 1600 feet
before colliding head-on with two motor vehicles, leaving several victims injured
and one deceased, and that he had a restricted controlled substance in his blood—it
was objectively reasonable for trial counsel to determine that it was in
VanderGalien’s best interest to preserve the plea agreement, which reduced
VanderGalien’s total sentence exposure from 190 years to 58 years and six months
(with the State agreeing to cap its sentencing recommendation to 28 years of initial
confinement) and use the alleged conflict of interest to argue for leniency at
sentencing.

       ¶46    Separately, VanderGalien argues that the district attorney should have
disclosed the conflict, removed himself from the case, and requested a special
prosecutor. However, VanderGalien does not cite any case law that supports his
assertion that the district attorney was required to request that a special prosecutor
be appointed by the circuit court, or which provides standards for such a
requirement. Rather, VanderGalien cites the Wisconsin statute regarding special
prosecutors, which provides that a “judge may appoint an attorney as a special
prosecutor only if the judge or the requesting district attorney submits an affidavit
to the department of administration attesting that 
 [t]he district attorney
determines that a conflict of interest exists regarding the district attorney or the
district attorney staff.” WIS. STAT. § 978.045(1r)(bm), (1r)(bm)8. VanderGalien
does not fully explain or cite authority to support his assertion that the statute


                                         21
                                                                      No. 2023AP458-CR




mandates that the district attorney request a special prosecutor as opposed to simply
providing instances in which a judge may elect to appoint a special prosecutor.
Accordingly, we do not consider this argument further.           See Industrial Risk
Insurers v. American Eng’g Testing, Inc.,
2009 WI App 62, ¶25
,
318 Wis. 2d 148
,
769 N.W.2d 82
 (stating that we may not consider arguments unsupported by legal
authority).

       ¶47    In sum, VanderGalien fails to show that he was entitled to an
evidentiary hearing on the alleged conflict of interest issue.

B. Plea withdrawal based on counsel’s failure to explain and VanderGalien’s
         failure to understand effect of dismissed and read-in charges

       ¶48    VanderGalien argues that he made a sufficient showing to be entitled
to an evidentiary hearing on his plea withdrawal claim because: (1) trial counsel
provided constitutionally ineffective assistance by inadequately explaining the
effect of the dismissed and read-in charges; and (2) as a result of counsel’s failure,
VanderGalien did not understand their effect and, therefore, did not enter his pleas
knowingly, intelligently, and voluntarily. As we explain, VanderGalien’s plea
withdrawal claim fails because he does not allege sufficient facts showing that he
was prejudiced by any error by trial counsel, and the record conclusively shows that
he did knowingly, intelligently, and voluntarily enter his pleas.

       ¶49    A post-sentencing motion for plea withdrawal must establish that plea
withdrawal is necessary to correct a manifest injustice. State v. Bentley,
201 Wis. 2d 303, 311
,
548 N.W.2d 50
 (1996). “[T]he ‘manifest injustice’ test is met if
the defendant was denied the effective assistance of counsel.”
Id.
 The test is also
met if the plea was not knowing, intelligent, and voluntary. State v. Brown,
2006 WI 100, ¶18
,
293 Wis. 2d 594
,
716 N.W.2d 906
; see also State v. Burton,
2013 WI 22
                                                                     No. 2023AP458-CR




61, ¶73,
349 Wis. 2d 1
,
832 N.W.2d 611
 (“Waiving constitutional rights must be
knowing, intelligent, and voluntary acts ‘done with sufficient awareness of the
relevant circumstances and likely consequences.’” (quoting Brady v. United States,
397 U.S. 742, 748
 (1970))).

       ¶50    VanderGalien’s plea withdrawal claims concern the effect of the
dismissed and read-in charges.      “Read-in charge” means “any crime that is
uncharged or that is dismissed as part of a plea agreement.”          See State v.
Straszkowski,
2008 WI 65, ¶¶81-86
,
310 Wis. 2d 259
,
750 N.W.2d 835
; see also
WIS. STAT. § 973.20(1g) (providing the stated definition of “read-in charges” for
purposes of restitution). With regard to the effect of dismissed and read-in charges
at sentencing, “Wisconsin has a strong public policy that the sentencing court be
provided with all relevant information” which “allows the sentencing court to
consider a broad range of factors when determining a sentence.” State v. Guzman,
166 Wis. 2d 577, 592
,
480 N.W.2d 446
 (1992). When imposing a sentence, the
“sentencing court may consider uncharged and unproven offenses” as well as the
“‘facts related to offenses for which the defendant has been acquitted’” but “the
maximum penalty of the charged offense will not be increased.” State v. Frey,
2012 WI 99, ¶47
,
343 Wis. 2d 358
,
817 N.W.2d 436
 (quoting State v. Leitner,
2002 WI 77, ¶45
,
253 Wis. 2d 449
,
646 N.W.2d 341
); Straszkowski,
310 Wis. 2d 259, ¶93
.

                        1. Ineffective assistance of counsel

       ¶51    We have summarized the standard of review and applicable legal
principles governing a claim of ineffective assistance of counsel in ¶¶42-44 above.
In short, a defendant claiming ineffective assistance of counsel must establish both
that (1) counsel’s performance was deficient and (2) the deficient performance
prejudiced the defense. Strickland,
466 U.S. at 687
. We resolve this claim based


                                        23
                                                                       No. 2023AP458-CR




on the prejudice prong.      To prove prejudice, a defendant must establish “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.”
Id. at 694
. Pertinent here, a defendant
seeking to withdraw a plea based on ineffective assistance of counsel must show
“that there is a reasonable probability that, but for the counsel’s errors” the
defendant would not have reached a plea agreement and instead “would have
insisted on going to trial.” Bentley,
201 Wis. 2d at 312
.

       ¶52    VanderGalien supported his motion for postconviction relief with an
affidavit by postconviction counsel in which counsel averred that trial counsel “does
not believe he correctly explained the meaning and effect of dismissed [and] read-
in charges at sentencing to VanderGalien before a plea was entered.” However,
VanderGalien did not submit an affidavit averring that counsel failed to explain the
effect of these charges and that he did not understand their effect. Even if we accept
VanderGalien’s assertion that counsel did not adequately explain the effect of the
dismissed and read-in charges, his claim fails because he does not allege sufficient
facts to show prejudice.

       ¶53    VanderGalien provides no explanation as to why, had trial counsel
explained the effect of the dismissed and read-in charges at sentencing,
VanderGalien would have “elected to proceed to trial.” Without more than a
conclusory assertion by VanderGalien’s postconviction counsel that VanderGalien
would have opted to proceed to trial, VanderGalien fails to show a reasonable
probability that his course of action would have changed. Absent a plea deal,
VanderGalien was facing thirteen counts and a total sentence exposure of 190 years
of imprisonment on a straightforward set of facts regarding the collisions between
VanderGalien, who had a restricted controlled substance in his blood, and two other
motor vehicles resulting in severe injuries and one fatality. VanderGalien has not

                                          24
                                                                          No. 2023AP458-CR




sufficiently demonstrated that he would have elected to proceed to trial because trial
counsel did not explain the effect of the dismissed and read-in charges. “[A]
defendant must do more than merely allege that he would have pled differently” in
order to establish prejudice.
Id. at 313
. In sum, VanderGalien has not established
sufficient facts to entitle him to relief on this ineffective assistance of counsel claim.

       ¶54    VanderGalien argues that he did establish the need for an evidentiary
hearing on this issue. Specifically, VanderGalien notes that, at the sentencing
hearing, the parties argued over the law regarding the effect of dismissed and read-
in charges and the circuit court did not at that time resolve their dispute. Based on
this interaction, VanderGalien argues, the postconviction court could not determine
whether VanderGalien’s trial counsel correctly explained to VanderGalien the effect
of the read-in charges, thereby necessitating an evidentiary hearing on the issue. We
disagree.

       ¶55    The transcript of the sentencing hearing shows that the prosecutor
erroneously characterized the effect of the dismissed and read-in charges as
admissions of guilt on those offenses, and that VanderGalien’s trial counsel
correctly refuted the prosecutor’s mistaken understanding. This interaction fails to
support the inference that trial counsel failed to explain to VanderGalien the effect
of the dismissed and read-in charges before VanderGalien entered his pleas. Indeed,
this interaction at sentencing, in which trial counsel correctly stated the effect of
these charges, supports the contrary inference, that trial counsel correctly stated the
effect of the charges to VanderGalien before he entered his pleas. More generally,
VanderGalien does not explain how the State’s misstatement of the effect of the
dismissed and read-in charges at sentencing establishes that his trial counsel did not
explain the effect of the dismissed and read-in charges to him before he entered his



                                           25
                                                                        No. 2023AP458-CR




pleas. In sum, VanderGalien fails to show that this interaction entitles him to a
hearing on this ineffective assistance of counsel claim.

                    2. Knowing, intelligent, and voluntary pleas

       ¶56    If a guilty plea is not entered knowingly, intelligently, and voluntarily,
the defendant is entitled to withdrawal of the plea “as a matter of right because such
a plea ‘violates fundamental due process.’” State v. Finley,
2016 WI 63, ¶13
,
370 Wis. 2d 402
,
882 N.W.2d 761
 (quoting Brown,
293 Wis. 2d 594, ¶19
).

       ¶57    The record conclusively refutes VanderGalien’s claim that he did not
knowingly, intelligently, and voluntarily enter his pleas because, as a result of trial
counsel’s failure to explain the effect of the dismissed and read-in charges, he did
not understand their effect. Specifically, the record demonstrates that the plea
questionnaire and the circuit court correctly explained the effect of the read-in
charges to VanderGalien, and that he acknowledged as much.

       ¶58    The plea questionnaire, signed by both VanderGalien and trial
counsel, correctly states that: (1) the read-in charges may be considered by the
circuit court at sentencing “when imposing sentence, [but] the maximum penalty
will not be increased”; (2) VanderGalien “may be required to pay restitution on any
read-in charges”; and (3) “the State may not prosecute [VanderGalien] for any read-
in charges.” At the plea hearing, VanderGalien confirmed that he had reviewed the
plea questionnaire with trial counsel prior to signing it and that he understood its
contents.

       ¶59    Also at the plea hearing, the circuit court explained the read-in charges
using language that mirrors the plea questionnaire. Specifically, the court explained
that the provision that the charges that would be dismissed and read-in “means that


                                          26
                                                                         No. 2023AP458-CR




the court may consider these charges when imposing sentence and you may be
required to pay restitution on each of these read-in charges; however, the maximum
penalties will not be increased and the state will be prohibited from any future
prosecution of these read-in charges[.]” The court then asked VanderGalien, “[D]o
you understand that?” to which VanderGalien replied, “Yes, Your Honor.”
VanderGalien did not submit any affidavit or other evidence presenting facts
showing that he did not understand.

       ¶60    In sum, the record conclusively shows that VanderGalien is not
entitled to relief on his claim that he did not enter his pleas knowingly, intelligently,
and voluntarily because he did not understand the effect of the dismissed and read-
in charges.

                                   CONCLUSION

       ¶61    For the reasons stated, we conclude that the inclusion of metabolites
of cocaine in the definition in WIS. STAT. § 340.01(50m)(c) of a “restricted
controlled substance” for purposes of prosecution under the Wisconsin motor
vehicle code is constitutional. We also conclude that VanderGalien is not entitled
to an evidentiary hearing on the remaining claims in his motion for postconviction
relief. Accordingly, we affirm.

              By the Court.—Judgment and order affirmed.




                                           27