postconviction motion hearing in Wisconsin

2021State v. Allen, 2004 WI 106, ¶12 , 274 Wis. 2d 568 , 682 N.W.2d 433 . 2 No. 2019AP588-CR The circuit court may deny a postconviction motion for a hearing if all the facts alleged in the motion, assuming them to be true, do not entitle the movant to relief; if one or more key factual allegations in the motion are conclusory; or if the record conclusively demonstrates that the movant is not entitled to relief.

2021State v. Allen, 2004 WI 106, ¶12 , 274 Wis. 2d 568 , 682 N.W.2d 433 . 2 No. 2019AP588-CR The circuit court may deny a postconviction motion for a hearing if all the facts alleged in the motion, assuming them to be true, do not entitle the movant to relief; if one or more key factual allegations in the motion are conclusory; or if the record conclusively demonstrates that the movant is not entitled to relief.

2021“A motion claiming ineffective assistance of counsel does not automatically trigger a right to a [postconviction] testimonial hearing[.]” State v. Phillips, 2009 WI App 179, ¶17 , 322 Wis. 2d 576 , 778 N.W.2d 157 .

2021“A motion claiming ineffective assistance of counsel does not automatically trigger a right to a [postconviction] testimonial hearing[.]” State v. Phillips, 2009 WI App 179, ¶17 , 322 Wis. 2d 576 , 778 N.W.2d 157 .

2004Sprang's defense counsel testified at the postconviction motion hearing pursuant to State v. Machner, 92 Wis. 2d 797 , 285 N.W.2d 905 (Ct. App. 1979).

2004Sprang's defense counsel testified at the postconviction motion hearing pursuant to State v. Machner, 92 Wis. 2d 797 , 285 N.W.2d 905 (Ct. App. 1979).

2013For a recent decision of the court on reference to a PSI in an appellate brief, see State Public Defender v. Court of Appeals, 2013 WI 31 , 346 Wis. 2d 735 , 828 N.W.2d 847 .

2013For a recent decision of the court on reference to a PSI in an appellate brief, see State Public Defender v. Court of Appeals, 2013 WI 31 , 346 Wis. 2d 735 , 828 N.W.2d 847 .

2002Polak further argues that State v. Vennemann, 180 Wis. 2d 81 , 508 N.W.2d 404 (1993), required his presence at the postconviction motion hearing challenging the adequacy of the plea hearing. 2 In Venne-mann, the Wisconsin Supreme Court held that under certain circumstances, a defendant must be produced for a postconviction hearing: *601 In order to determine whether a prisoner should be physically produced for a p'ostconviction evidentiary hearing pursuant to sec. 974.02 or sec. 974.06, the following test should he used.

2002Polak further argues that State v. Vennemann, 180 Wis. 2d 81 , 508 N.W.2d 404 (1993), required his presence at the postconviction motion hearing challenging the adequacy of the plea hearing. 2 In Venne-mann, the Wisconsin Supreme Court held that under certain circumstances, a defendant must be produced for a postconviction hearing: *601 In order to determine whether a prisoner should be physically produced for a p'ostconviction evidentiary hearing pursuant to sec. 974.02 or sec. 974.06, the following test should he used.

2023Id. ¶15 At the postconviction motion hearing, the circuit court heard competing testimony about the subject of lesser included offenses.

2022State v. Jones, 2010 WI 72, ¶23 , 326 Wis. 2d 380 , 797 N.W.2d 378 .

2022State v. Jones, 2010 WI 72, ¶23 , 326 Wis. 2d 380 , 797 N.W.2d 378 .

2022The court found that, considering Clark’s testimony, Clark had not shown that his conflict with his attorney was “so great that it likely resulted in a total lack of communication that prevented an adequate defense and frustrated a fair presentation of the case.” See Lomax, 146 Wis. 2d at 359 . 5 No. 2021AP516-CR ¶12 Because the circuit court heard from Clark directly at the postconviction motion hearing, Clark’s argument that the circuit court erred by failing to inquire of Clark at the time his counsel conveyed the request just before trial is unavailing.

2022The court found that, considering Clark’s testimony, Clark had not shown that his conflict with his attorney was “so great that it likely resulted in a total lack of communication that prevented an adequate defense and frustrated a fair presentation of the case.” See Lomax, 146 Wis. 2d at 359 . 5 No. 2021AP516-CR ¶12 Because the circuit court heard from Clark directly at the postconviction motion hearing, Clark’s argument that the circuit court erred by failing to inquire of Clark at the time his counsel conveyed the request just before trial is unavailing.

2022He contends that there was no direct evidence at the postconviction motion hearing that Attorney Zilles ever discussed modifying the plea agreement with Lehouillier, that Lehouillier understood that a plea modification would allow the State to argue for a longer sentence than the original plea agreement, or that Lehouillier agreed to the modification. ¶15 “[T]he terms of the plea agreement and the historical facts of the State’s conduct that allegedly constitute a breach of a plea agreement are questions of fact.” State v. Williams, 2002 WI 1, ¶2 , 249 Wis. 2d 492 , 637 N.W.2d 733 . 6 No. 2021

2022He contends that there was no direct evidence at the postconviction motion hearing that Attorney Zilles ever discussed modifying the plea agreement with Lehouillier, that Lehouillier understood that a plea modification would allow the State to argue for a longer sentence than the original plea agreement, or that Lehouillier agreed to the modification. ¶15 “[T]he terms of the plea agreement and the historical facts of the State’s conduct that allegedly constitute a breach of a plea agreement are questions of fact.” State v. Williams, 2002 WI 1, ¶2 , 249 Wis. 2d 492 , 637 N.W.2d 733 . 6 No. 2021

2021He also appeals orders denying his postconviction motion and motion for reconsideration.1 Culpepper argues that (1) his trial counsel ineffectively represented him by failing to call two alibi witnesses to testify on his behalf during trial; (2) his trial counsel ineffectively represented him by failing to call an expert witness to testify about the unreliability of eyewitness identifications; (3) his trial counsel ineffectively represented him by failing to call an expert witness to testify about cell phone signal technology; (4) the circuit court erred in allowing the State’s expert testimon

2021See Counihan, 390 Wis. 2d 172, ¶39-40 ; see also State v. Loomis, 2016 WI 68, ¶53 , 371 Wis. 2d 235 , 881 N.W.2d 749 (recognizing that defendant must be given an “opportunity to refute, supplement or explain” information at sentencing (citing Gardner v. Florida, 430 U.S. 349, 362 (1977) (which ruled that defendant was denied due process when sentenced on 7 No. 2020AP1584-CR information that he had no opportunity to deny or explain)); cf. Rosado v. State, 70 Wis. 2d 280, 287 , 234 N.W.2d 69 (1975) (ruling that defendant was not denied due process when, after evidence that surprised defendant wa

2021See Counihan, 390 Wis. 2d 172, ¶39-40 ; see also State v. Loomis, 2016 WI 68, ¶53 , 371 Wis. 2d 235 , 881 N.W.2d 749 (recognizing that defendant must be given an “opportunity to refute, supplement or explain” information at sentencing (citing Gardner v. Florida, 430 U.S. 349, 362 (1977) (which ruled that defendant was denied due process when sentenced on 7 No. 2020AP1584-CR information that he had no opportunity to deny or explain)); cf. Rosado v. State, 70 Wis. 2d 280, 287 , 234 N.W.2d 69 (1975) (ruling that defendant was not denied due process when, after evidence that surprised defendant wa

2019He also argues that nothing at the postconviction motion hearing established that he not only “had the proper information,” but also “understood that information,” citing State v. Howell, 2007 WI 75, ¶50 , 301 Wis. 2d 350 , 734 N.W.2d 48 (for a sufficient plea colloquy, “the circuit court should have established not only that Howell had the proper information but also that he understood that information”). ¶13 The State responds that it met its burden to establish that Moore understood the definition of sexual contact when he entered his plea.

2019He also argues that nothing at the postconviction motion hearing established that he not only “had the proper information,” but also “understood that information,” citing State v. Howell, 2007 WI 75, ¶50 , 301 Wis. 2d 350 , 734 N.W.2d 48 (for a sufficient plea colloquy, “the circuit court should have established not only that Howell had the proper information but also that he understood that information”). ¶13 The State responds that it met its burden to establish that Moore understood the definition of sexual contact when he entered his plea.

2019The court reviewed the reasons for its sentencing decision, including its consideration of the relevant factors under State v. Gallion , 2004 WI 42 , ¶¶40-41, 270 Wis. 2d 535 , 678 N.W.2d 197 .

2019The court reviewed the reasons for its sentencing decision, including its consideration of the relevant factors under State v. Gallion , 2004 WI 42 , ¶¶40-41, 270 Wis. 2d 535 , 678 N.W.2d 197 .

2019Corp., 90 Wis. 2d 97, 109 , 279 N.W.2d 493 (Ct. App. 1979) (stating that a failure to refute an argument constitutes a concession). 5 We note in passing that during the postconviction motion hearing, Slack acknowledged that he had pled guilty to armed robbery as a party to a crime in a prior case.

2019Corp., 90 Wis. 2d 97, 109 , 279 N.W.2d 493 (Ct. App. 1979) (stating that a failure to refute an argument constitutes a concession). 5 We note in passing that during the postconviction motion hearing, Slack acknowledged that he had pled guilty to armed robbery as a party to a crime in a prior case.

2005Id. at 410 . ¶ 11.

2004Bentley, 201 Wis. 2d at 310-11 ; Nelson, 54 Wis. 2d at 497-98 .

2004Bentley, 201 Wis. 2d at 310-11 ; Nelson, 54 Wis. 2d at 497-98 .