motion without hearing in Wisconsin

2025“Whether a motion alleges facts which, if true, would entitle a defendant to relief is a question of law that we review de novo.” Id. “[I]f the motion does not raise facts sufficient to entitle the movant to relief, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief,” the circuit court has discretion to deny the motion without a hearing.

2021Id. 11 No. 2020AP1519-CR ¶24 If the factual allegations of the motion are insufficient or conclusory, or if the record irrefutably demonstrates that the defendant is not entitled to relief, the circuit court may, in its discretion, deny the motion without a hearing.

2023“We review a circuit court’s discretionary decisions under the deferential erroneous exercise of discretion standard.” Allen, 274 Wis. 2d 568, ¶9 . ¶8 The circuit court concluded that Love’s postconviction motion failed to allege sufficient material facts or presented only conclusory allegations, which made the decision to deny the motion without a hearing one within the court’s discretion.

2022State v. Allen, 2004 WI 106, ¶9 , 274 Wis. 2d 568 , 682 N.W.2d 433 . “[I]f the defendant fails to allege sufficient facts in his motion to raise a question of fact, or presents only conclusory allegations, or if the record conclusively demonstrates that the 23 No. 2022AP111-CR defendant is not entitled to relief, the trial court may in the exercise of its legal discretion deny the motion without a hearing.” Sulla, 369 Wis. 2d 225, ¶27 (quoted source omitted).

2022However, the circuit court has discretion to deny such a motion without a hearing if the defendant fails to allege sufficient material facts in the motion, presents only conclusory allegations, or “if the record conclusively demonstrates 16 No. 2022AP209 that the defendant is not entitled to relief.” Id. at 497-98 .

2016However, "if the record conclusively demonstrates that the defendant is not entitled to relief, the trial court may in the exercise of its legal discretion deny the motion without a hearing." Id. at 310 (quoting Nelson, 54 Wis. 2d at 497-98 ). ¶ 7.

2022State v. Allen, 2004 WI 106, ¶9 , 274 Wis. 2d 568 , 682 N.W.2d 433 . “[I]f the defendant fails to allege sufficient facts in his motion to raise a question of fact, or presents only conclusory allegations, or if the record conclusively demonstrates that the 23 No. 2022AP111-CR defendant is not entitled to relief, the trial court may in the exercise of its legal discretion deny the motion without a hearing.” Sulla, 369 Wis. 2d 225, ¶27 (quoted source omitted).

2018Velez , 224 Wis. 2d at 18 , 589 N.W.2d 9 . ¶11 Second, if the "defendant fails to allege sufficient facts in his motion to raise a question of fact, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief," then the circuit court has discretion to deny the motion without a hearing. 5 Bentley , 201 Wis. 2d at 309 -10 , 548 N.W.2d 50 (citation omitted); see also State v. Sulla , 2016 WI 46 , ¶23, 369 Wis. 2d 225 , 880 N.W.2d 659 .

2025See id. ¶18 In his WIS.

2019See Balliette, 336 Wis. 2d 358, ¶¶18, 79 . “[I]f the motion does not raise such facts, ‘or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief,’” the trial court may deny the motion without a hearing.

2025Because Espitia Guerrero’s motion was insufficient with respect to both allegations, we agree with the trial court’s decision to deny the motion without a hearing. ¶9 Espitia Guerrero’s first claim regarding the lack of an opening statement was plainly based only on conclusory allegations; his motion did not sufficiently establish that his trial counsel’s decision to waive an opening statement “fell below an objective standard of reasonableness.” See State v. Romero-Georgana, 2014 WI 83, ¶40 , 360 Wis. 2d 522 , 849 N.W.2d 668 (citation omitted).

2025Because Espitia Guerrero’s motion was insufficient with respect to both allegations, we agree with the trial court’s decision to deny the motion without a hearing. ¶9 Espitia Guerrero’s first claim regarding the lack of an opening statement was plainly based only on conclusory allegations; his motion did not sufficiently establish that his trial counsel’s decision to waive an opening statement “fell below an objective standard of reasonableness.” See State v. Romero-Georgana, 2014 WI 83, ¶40 , 360 Wis. 2d 522 , 849 N.W.2d 668 (citation omitted).

2026See Strickland, 466 U.S. at 688 [.] Because the defendant has failed to allege sufficient facts in his motion to raise a question of fact and presents only conclusory allegations regarding deficient performance and prejudice, the court in its exercise of discretion denies the defendant’s motion without a hearing. ¶20 In context, it is clear that the circuit court was emphasizing that credibility—specifically whether the jury believed Ramos’ or Reeber’s version of events—was more of an issue than the reasonableness of Ramos’ beliefs and conduct at trial.

2020The court did not address Howard’s argument relating to McCoy, but rather found that Howard was not prejudiced by the concession of his trial counsel during closing arguments under the Strickland analysis for assessing claims of ineffective assistance of counsel.4 Regarding the denial of new counsel, the court agreed with the State, noting that Howard “has still not offered any other reason which adequately supports his request.” This appeal follows. 4 See Strickland v. Washington, 466 U.S. 668 (1984). 8 No. 2019AP1384-CR DISCUSSION I.

2021In addition, where the trial court has discretion to grant an evidentiary hearing, the trial court must take into consideration “the record, the motion, counsels’ arguments and/or offers of proof, and the law.” Id. at 17-18 (citing State v. Garner, 207 Wis. 2d 520 , 534- 35, 558 N.W.2d 916 (Ct. App. 1996)). ¶17 To start, we observe that during the trial court proceedings, Green did not request an evidentiary hearing or make any objection when the trial court proceeded to resolve the motion without a hearing.

2021In addition, where the trial court has discretion to grant an evidentiary hearing, the trial court must take into consideration “the record, the motion, counsels’ arguments and/or offers of proof, and the law.” Id. at 17-18 (citing State v. Garner, 207 Wis. 2d 520 , 534- 35, 558 N.W.2d 916 (Ct. App. 1996)). ¶17 To start, we observe that during the trial court proceedings, Green did not request an evidentiary hearing or make any objection when the trial court proceeded to resolve the motion without a hearing.

2019See id. ¶15 Rhodes next claims that the circuit court wrongly denied his suppression motion. 1 "The Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution prohibit unreasonable searches and seizures." State v. Artic , 2010 WI 83 , ¶28, 327 Wis. 2d 392 , 786 N.W.2d 430 .

2019See id. ¶15 Rhodes next claims that the circuit court wrongly denied his suppression motion. 1 "The Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution prohibit unreasonable searches and seizures." State v. Artic , 2010 WI 83 , ¶28, 327 Wis. 2d 392 , 786 N.W.2d 430 .

2019See id. ¶15 Rhodes next claims that the circuit court wrongly denied his suppression motion. 1 "The Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution prohibit unreasonable searches and seizures." State v. Artic , 2010 WI 83 , ¶28, 327 Wis. 2d 392 , 786 N.W.2d 430 .

2009See Howell, 301 Wis. 2d 350, ¶¶ 76-77. "[I]f the defendant fails to allege sufficient facts in his motion to raise a question of fact, or presents only conclusionary allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief, the trial court may in the exercise of its legal discretion deny the motion without a hearing." Howell, 301 Wis. 2d 350, ¶ 75 (quoting Nelson, 54 Wis. 2d at 497-98 ).

2009See Howell, 301 Wis. 2d 350, ¶¶ 76-77. "[I]f the defendant fails to allege sufficient facts in his motion to raise a question of fact, or presents only conclusionary allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief, the trial court may in the exercise of its legal discretion deny the motion without a hearing." Howell, 301 Wis. 2d 350, ¶ 75 (quoting Nelson, 54 Wis. 2d at 497-98 ).

2006See, e.g., State v. Love, 2005 WI 116, ¶¶ 2, 42, 56 , 284 Wis. 2d 111 , 700 N.W.2d 62 ; State v. Bentley, 201 Wis. 2d 303, 309-10 , 548 N.W.2d 50 (1996). "[I]f the defendant fails to allege sufficient facts [] to raise a question of fact, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief," then the circuit court may deny the motion without a hearing, thereby rendering a remand unnecessary.

2006See, e.g., State v. Love, 2005 WI 116, ¶¶ 2, 42, 56 , 284 Wis. 2d 111 , 700 N.W.2d 62 ; State v. Bentley, 201 Wis. 2d 303, 309-10 , 548 N.W.2d 50 (1996). "[I]f the defendant fails to allege sufficient facts [] to raise a question of fact, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief," then the circuit court may deny the motion without a hearing, thereby rendering a remand unnecessary.

2004If, however: "the defendant fails to allege sufficient facts in his motion to raise a question of fact, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief, the trial court may in the exercise of its legal discretion deny the motion without a hearing." Id., 201 Wis. 2d at 309-310 , 548 N.W.2d at 53 (quoted source omitted). ¶22 "[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment." Brady v. Maryland, 3

1984The term “new factor” was defined in Rosado v. State, 70 Wis. 2d 280, 288 , 234 N.W.2d 69, 73 (1975), as: [A] fact or set of facts highly relevant to the imposition of sentence, but not known to the trial judge at the time of original sentencing, either because it was not then in existence or because, even though it was then in existence, it was unknowingly overlooked by all of the parties.

1984The term “new factor” was defined in Rosado v. State, 70 Wis. 2d 280, 288 , 234 N.W.2d 69, 73 (1975), as: [A] fact or set of facts highly relevant to the imposition of sentence, but not known to the trial judge at the time of original sentencing, either because it was not then in existence or because, even though it was then in existence, it was unknowingly overlooked by all of the parties.