Machner hearing in Wisconsin

2026Id. ¶56 An evidentiary hearing, commonly referred to as a Machner hearing, “is a prerequisite for consideration of an ineffective assistance claim.” State v. Sholar, 2018 WI 53, ¶50 , 381 Wis. 2d 560 , 912 N.W.2d 89 ; see also State v. Machner, 92 Wis. 2d 797, 804 , 285 N.W.2d 905 (Ct. App. 1979).

2026Id. ¶56 An evidentiary hearing, commonly referred to as a Machner hearing, “is a prerequisite for consideration of an ineffective assistance claim.” State v. Sholar, 2018 WI 53, ¶50 , 381 Wis. 2d 560 , 912 N.W.2d 89 ; see also State v. Machner, 92 Wis. 2d 797, 804 , 285 N.W.2d 905 (Ct. App. 1979).

2025To show prejudice, the defendant must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). ¶16 “A Machner hearing is a prerequisite for consideration of an ineffective assistance claim.” State v. Sholar, 2018 WI 53, ¶50 , 381 Wis. 2d 560 , 912 N.W.2d 89 .

2025To show prejudice, the defendant must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). ¶16 “A Machner hearing is a prerequisite for consideration of an ineffective assistance claim.” State v. Sholar, 2018 WI 53, ¶50 , 381 Wis. 2d 560 , 912 N.W.2d 89 .

2026“When a circuit court summarily denies a postconviction motion alleging ineffective assistance of counsel without holding a Machner hearing, the issue for the court of appeals … is whether the defendant’s motion alleged sufficient [material] facts entitling him to a hearing.” State v. Sholar, 2018 WI 53, ¶51 , 381 Wis. 2d 560 , 912 N.W.2d 89 ; State v. Allen, 2004 WI 106, ¶14 , 274 Wis. 2d 568 , 682 N.W.2d 18 No. 2024AP56-CR 433.

2026“When a circuit court summarily denies a postconviction motion alleging ineffective assistance of counsel without holding a Machner hearing, the issue for the court of appeals … is whether the defendant’s motion alleged sufficient [material] facts entitling him to a hearing.” State v. Sholar, 2018 WI 53, ¶51 , 381 Wis. 2d 560 , 912 N.W.2d 89 ; State v. Allen, 2004 WI 106, ¶14 , 274 Wis. 2d 568 , 682 N.W.2d 18 No. 2024AP56-CR 433.

2026“When a circuit court summarily denies a postconviction motion alleging ineffective assistance of counsel without holding a Machner hearing, the issue for the court of appeals … is whether the defendant’s motion alleged sufficient [material] facts entitling him to a hearing.” State v. Sholar, 2018 WI 53, ¶51 , 381 Wis. 2d 560 , 912 N.W.2d 89 ; State v. Allen, 2004 WI 106, ¶14 , 274 Wis. 2d 568 , 682 N.W.2d 18 No. 2024AP56-CR 433.

2026“When a circuit court summarily denies a postconviction motion alleging ineffective assistance of counsel without holding a Machner hearing, the issue for the court of appeals … is whether the defendant’s motion alleged sufficient [material] facts entitling him to a hearing.” State v. Sholar, 2018 WI 53, ¶51 , 381 Wis. 2d 560 , 912 N.W.2d 89 ; State v. Allen, 2004 WI 106, ¶14 , 274 Wis. 2d 568 , 682 N.W.2d 18 No. 2024AP56-CR 433.

2024State v. Bentley, 201 Wis. 2d 303, 309-10 , 548 N.W.2d 50 (1996). “[A]n evidentiary hearing is not mandatory if a defendant’s motion presents only conclusory allegations or if the record as a whole conclusively demonstrates that the defendant is not entitled to relief.” State v. Spencer, 2022 WI 56, ¶47 , 403 Wis. 2d 86 , 976 N.W.2d 383 (citation omitted). ¶39 To obtain a Machner hearing, Clark’s motion needed to allege facts sufficiently showing both deficiency and prejudice, which if true, would entitle him to relief.

2024State v. Bentley, 201 Wis. 2d 303, 309-10 , 548 N.W.2d 50 (1996). “[A]n evidentiary hearing is not mandatory if a defendant’s motion presents only conclusory allegations or if the record as a whole conclusively demonstrates that the defendant is not entitled to relief.” State v. Spencer, 2022 WI 56, ¶47 , 403 Wis. 2d 86 , 976 N.W.2d 383 (citation omitted). ¶39 To obtain a Machner hearing, Clark’s motion needed to allege facts sufficiently showing both deficiency and prejudice, which if true, would entitle him to relief.

2026A Machner hearing is “[t]he evidentiary hearing to evaluate counsel’s effectiveness, which includes counsel’s testimony to explain [counsel’s] handling of the case.” State v. Balliette, 2011 WI 79, ¶31 , 336 Wis. 2d 358 , 805 N.W.2d 334 . 7 No. 2025AP495-CR A. Langlois’s Statements and Reeves’s Confrontation Right ¶19 We begin with additional background about the prosecutor’s direct examination of Langlois.

2026A Machner hearing is “[t]he evidentiary hearing to evaluate counsel’s effectiveness, which includes counsel’s testimony to explain [counsel’s] handling of the case.” State v. Balliette, 2011 WI 79, ¶31 , 336 Wis. 2d 358 , 805 N.W.2d 334 . 7 No. 2025AP495-CR A. Langlois’s Statements and Reeves’s Confrontation Right ¶19 We begin with additional background about the prosecutor’s direct examination of Langlois.

2025“If the defendant fails to satisfy either prong, we need not consider the other.” Breitzman, 378 Wis. 2d 431, ¶37 . ¶9 Based on our examination of the record and the circuit court’s findings from the Machner hearing and the third-party liability hearing, we conclude that trial counsels’ performance was not deficient because it was objectively reasonable.

2025“If the defendant fails to satisfy either prong, we need not consider the other.” Breitzman, 378 Wis. 2d 431, ¶37 . ¶9 Based on our examination of the record and the circuit court’s findings from the Machner hearing and the third-party liability hearing, we conclude that trial counsels’ performance was not deficient because it was objectively reasonable.

2026“An exercise of discretion is erroneous if it is based on an error of fact or law.” Id. ¶30 We affirm the postconviction court’s decision to exercise its discretion not to hold a Machner hearing.

2026“An exercise of discretion is erroneous if it is based on an error of fact or law.” Id. ¶30 We affirm the postconviction court’s decision to exercise its discretion not to hold a Machner hearing.

2024See State v. Love, 2005 WI 116, ¶27 , 284 Wis. 2d 111 , 700 N.W.2d 62 (“[A] postconviction motion will be sufficient if it alleges within the four corners of the document itself ‘the five ‘w’s’ and one ‘h’; that is, who, what, where, when, why, and how.’” (citation omitted)). ¶49 Further, the record does not conclusively defeat Lindberg’s claim— the record cannot—because the presented information about the age of the model is new information that was not available for consideration during the trial and we lack any indication in the record of trial counsel’s investigation and trial strategy. ¶5

2024See State v. Love, 2005 WI 116, ¶27 , 284 Wis. 2d 111 , 700 N.W.2d 62 (“[A] postconviction motion will be sufficient if it alleges within the four corners of the document itself ‘the five ‘w’s’ and one ‘h’; that is, who, what, where, when, why, and how.’” (citation omitted)). ¶49 Further, the record does not conclusively defeat Lindberg’s claim— the record cannot—because the presented information about the age of the model is new information that was not available for consideration during the trial and we lack any indication in the record of trial counsel’s investigation and trial strategy. ¶5

2026Jackson appealed, and our supreme court reversed and remanded, concluding that a Machner hearing was required.2 Jackson I, 405 Wis. 2d 458, ¶1 . ¶5 At the Machner hearing, trial counsel said that she had represented defendants in hundreds of trials during approximately 35 years as a criminal defense attorney.

2026Jackson appealed, and our supreme court reversed and remanded, concluding that a Machner hearing was required.2 Jackson I, 405 Wis. 2d 458, ¶1 . ¶5 At the Machner hearing, trial counsel said that she had represented defendants in hundreds of trials during approximately 35 years as a criminal defense attorney.

2026The Record does not reflect whether Woods had an opportunity to accept it. ¶18 Under these facts, “[a Machner] hearing is important not only to give trial counsel a chance to explain his or her actions, but also to allow the trial court, which is in the best position to judge counsel’s performance, to rule on the motion.” State v. Curtis, 218 Wis. 2d 550, 554 , 582 N.W.2d 409 (Ct. App. 1998). ¶19 The importance of a Machner hearing under the facts alleged by Woods is underscored by the stark difference in penalties facing Woods between taking the deferred prosecution agreement or pleading guil

2026The Record does not reflect whether Woods had an opportunity to accept it. ¶18 Under these facts, “[a Machner] hearing is important not only to give trial counsel a chance to explain his or her actions, but also to allow the trial court, which is in the best position to judge counsel’s performance, to rule on the motion.” State v. Curtis, 218 Wis. 2d 550, 554 , 582 N.W.2d 409 (Ct. App. 1998). ¶19 The importance of a Machner hearing under the facts alleged by Woods is underscored by the stark difference in penalties facing Woods between taking the deferred prosecution agreement or pleading guil

2023However, the court retains discretion to deny a postconviction motion without a hearing if the motion “fails to allege sufficient facts to raise a question of fact, presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief.” State v. Roberson, 2006 WI 80, ¶43 , 292 Wis. 2d 280 , 717 N.W.2d 111 (citations omitted); see also State v. Ruffin, 2022 WI 34, ¶¶28, 35 , 401 Wis. 2d 619 , 974 N.W.2d 432 . ¶55 Where, as here, the circuit court has declined to conduct a Machner hearing, this court reviews de novo whether the postconvicti

2023However, the court retains discretion to deny a postconviction motion without a hearing if the motion “fails to allege sufficient facts to raise a question of fact, presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief.” State v. Roberson, 2006 WI 80, ¶43 , 292 Wis. 2d 280 , 717 N.W.2d 111 (citations omitted); see also State v. Ruffin, 2022 WI 34, ¶¶28, 35 , 401 Wis. 2d 619 , 974 N.W.2d 432 . ¶55 Where, as here, the circuit court has declined to conduct a Machner hearing, this court reviews de novo whether the postconvicti

2026As the court correctly noted, “Attorney Nelson cannot be held 18 No. 2024AP2176-CR deficient for not investigating and/or calling a witness if he is not given that information.” See State v. Hubanks, 173 Wis. 2d 1, 26-27 , 496 N.W.2d 96 (Ct. App. 1992) (concluding that trial counsel did not perform deficiently by failing to investigate and call potential witnesses when the defendant did not inform counsel of the existence of those witnesses). ¶47 On appeal, Graf claims that “[b]asic questioning of Judy would have revealed that [the Grafs] didn’t have a mower at the Star Prairie property, and t

2026As the court correctly noted, “Attorney Nelson cannot be held 18 No. 2024AP2176-CR deficient for not investigating and/or calling a witness if he is not given that information.” See State v. Hubanks, 173 Wis. 2d 1, 26-27 , 496 N.W.2d 96 (Ct. App. 1992) (concluding that trial counsel did not perform deficiently by failing to investigate and call potential witnesses when the defendant did not inform counsel of the existence of those witnesses). ¶47 On appeal, Graf claims that “[b]asic questioning of Judy would have revealed that [the Grafs] didn’t have a mower at the Star Prairie property, and t

2021See Romero- Georgana, 360 Wis. 2d 522, ¶64 (“We will not read into the § 974.06 motion allegations that are not within the four corners of the motion.”). ¶15 Sholar argues he has alleged sufficient material facts to entitle him to a Machner hearing on his ineffectiveness of postconviction counsel claim.

2021See Romero- Georgana, 360 Wis. 2d 522, ¶64 (“We will not read into the § 974.06 motion allegations that are not within the four corners of the motion.”). ¶15 Sholar argues he has alleged sufficient material facts to entitle him to a Machner hearing on his ineffectiveness of postconviction counsel claim.

2025BACKGROUND ¶3 The following facts are undisputed unless otherwise noted and are derived from a combination of sources, including evidence provided at the Machner hearing.1 1 “A Machner hearing is ‘[t]he evidentiary hearing to evaluate counsel’s effectiveness, which includes counsel’s testimony to explain his or her handling of the case.’” State v. Domke, 2011 WI 95 , ¶20 n.5, 337 Wis. 2d 268 , 805 N.W.2d 364 (citation omitted); see also State v. Machner, 92 Wis. 2d 797 , 285 N.W.2d 905 (Ct. App. 1979). 2 No. 2023AP1521-CR ¶4 On April 10, 2020, the date of the incident that resulted in the crim

2025BACKGROUND ¶3 The following facts are undisputed unless otherwise noted and are derived from a combination of sources, including evidence provided at the Machner hearing.1 1 “A Machner hearing is ‘[t]he evidentiary hearing to evaluate counsel’s effectiveness, which includes counsel’s testimony to explain his or her handling of the case.’” State v. Domke, 2011 WI 95 , ¶20 n.5, 337 Wis. 2d 268 , 805 N.W.2d 364 (citation omitted); see also State v. Machner, 92 Wis. 2d 797 , 285 N.W.2d 905 (Ct. App. 1979). 2 No. 2023AP1521-CR ¶4 On April 10, 2020, the date of the incident that resulted in the crim

2026See McCoy, 584 U.S. at 424 . ¶77 Defense counsel conceded at the Machner hearing that Helmueller declined the plea offers presented by the State, declined to stipulate to his status as a felon, and declined to concede that he was on bond at the time of the shooting.

2026See McCoy, 584 U.S. at 424 . ¶77 Defense counsel conceded at the Machner hearing that Helmueller declined the plea offers presented by the State, declined to stipulate to his status as a felon, and declined to concede that he was on bond at the time of the shooting.

2026Courts must also do everything in their power to avoid “hindsight” when analyzing counsel’s conduct and rather “evaluate the conduct from counsel’s perspective at the time.” State v. Carter, 2010 WI 40, ¶22 , 324 Wis. 2d 640 , 782 N.W.2d 695 (citation omitted). ¶24 Whether a defendant is entitled to a Machner hearing is a mixed question of law and fact.

2026Courts must also do everything in their power to avoid “hindsight” when analyzing counsel’s conduct and rather “evaluate the conduct from counsel’s perspective at the time.” State v. Carter, 2010 WI 40, ¶22 , 324 Wis. 2d 640 , 782 N.W.2d 695 (citation omitted). ¶24 Whether a defendant is entitled to a Machner hearing is a mixed question of law and fact.

2023Instead, an attorney’s choice of strategy must be “objectively reasonable.” See State v. Mull, 2023 WI 26, ¶35 , 406 Wis. 2d 491 , 987 N.W.2d 707 . ¶21 Here, trial counsel testified during the Machner hearing that he made a strategic choice not to introduce the surveillance video at trial, and the circuit court credited counsel’s testimony on that point.

2023Instead, an attorney’s choice of strategy must be “objectively reasonable.” See State v. Mull, 2023 WI 26, ¶35 , 406 Wis. 2d 491 , 987 N.W.2d 707 . ¶21 Here, trial counsel testified during the Machner hearing that he made a strategic choice not to introduce the surveillance video at trial, and the circuit court credited counsel’s testimony on that point.

2025See Smith, 207 Wis. 2d at 275-76 . ¶27 After reviewing the record, including the testimony of the State’s witnesses at trial and McMath’s alibi witnesses both at the trial and at the Machner hearing, we conclude that Allison’s additional testimony regarding McMath’s activities on the day of the shooting was not sufficient to firmly establish McMath’s alibi and overcome the evidence presented by the State.

2025See Smith, 207 Wis. 2d at 275-76 . ¶27 After reviewing the record, including the testimony of the State’s witnesses at trial and McMath’s alibi witnesses both at the trial and at the Machner hearing, we conclude that Allison’s additional testimony regarding McMath’s activities on the day of the shooting was not sufficient to firmly establish McMath’s alibi and overcome the evidence presented by the State.

2022“The ultimate determination of 6 No. 2019AP2145-CR whether counsel’s performance was deficient and prejudicial to the defense are questions of law which this court reviews independently.” State v. Johnson, 153 Wis. 2d 121, 128 , 449 N.W.2d 845 (1990). ¶18 Brookshire seeks a Machner hearing for his ineffective assistance of counsel claim.4 See State v. Machner, 92 Wis. 2d 797, 804 , 285 N.W.2d 905 (Ct. App. 1979).

2022“The ultimate determination of 6 No. 2019AP2145-CR whether counsel’s performance was deficient and prejudicial to the defense are questions of law which this court reviews independently.” State v. Johnson, 153 Wis. 2d 121, 128 , 449 N.W.2d 845 (1990). ¶18 Brookshire seeks a Machner hearing for his ineffective assistance of counsel claim.4 See State v. Machner, 92 Wis. 2d 797, 804 , 285 N.W.2d 905 (Ct. App. 1979).

2014State v. Cooks, 2006 WI App 262, ¶63 , 297 Wis. 2d 633 , 726 N.W.2d 322 . ¶63 The court of appeals in Cooks, quoting the federal Washington case, 219 F.3d at 634 , noted that "the mere fact that some negative evidence would have come in with the positive does not eliminate the prejudicial effect of leaving corroborative evidence unintroduced." Cooks, 297 Wis. 2d 633, ¶63 . ¶64 In assessing the prejudice caused by the defense trial counsel's performance, i.e., the effect of the defense trial counsel's deficient performance, a circuit court may not substitute its judgment for that of the jury in

2014State v. Cooks, 2006 WI App 262, ¶63 , 297 Wis. 2d 633 , 726 N.W.2d 322 . ¶63 The court of appeals in Cooks, quoting the federal Washington case, 219 F.3d at 634 , noted that "the mere fact that some negative evidence would have come in with the positive does not eliminate the prejudicial effect of leaving corroborative evidence unintroduced." Cooks, 297 Wis. 2d 633, ¶63 . ¶64 In assessing the prejudice caused by the defense trial counsel's performance, i.e., the effect of the defense trial counsel's deficient performance, a circuit court may not substitute its judgment for that of the jury in

2024A defendant establishes ineffective assistance of counsel by making a showing under the two-prong test in Strickland v. Washington, 466 U.S. 668, 687 (1984) “(1) that trial counsel’s performance was deficient; and (2) that this deficiency prejudiced the defendant.” Dillard, 358 Wis. 2d 543, ¶85 . ¶20 Whether a defendant’s postconviction motion alleges sufficient facts to entitle the defendant to a Machner hearing has a mixed standard of review.

2024A defendant establishes ineffective assistance of counsel by making a showing under the two-prong test in Strickland v. Washington, 466 U.S. 668, 687 (1984) “(1) that trial counsel’s performance was deficient; and (2) that this deficiency prejudiced the defendant.” Dillard, 358 Wis. 2d 543, ¶85 . ¶20 Whether a defendant’s postconviction motion alleges sufficient facts to entitle the defendant to a Machner hearing has a mixed standard of review.

2026Phillips, 322 Wis. 2d 576, ¶17 . ¶7 We must determine whether the circuit court erred when it denied Harris’s postconviction motion without holding a Machner hearing.

2026Phillips, 322 Wis. 2d 576, ¶17 . ¶7 We must determine whether the circuit court erred when it denied Harris’s postconviction motion without holding a Machner hearing.

2025State v. Erickson, 227 Wis. 2d 758, 774 , 596 N.W.2d 749 (1999). 8 The State asserts, without development, that Johnson was required to provide an affidavit with her postconviction motion describing what her testimony would be if a Machner hearing was held.

2025State v. Erickson, 227 Wis. 2d 758, 774 , 596 N.W.2d 749 (1999). 8 The State asserts, without development, that Johnson was required to provide an affidavit with her postconviction motion describing what her testimony would be if a Machner hearing was held.

2019However, with regard to his cross-examination of A.D., trial counsel stated, I wasn't sure, and this is pure speculation in trying to determine why I didn't want a reason [from A.D.] in there, the only thing that sort of stands out, I was not sure what [A.D.] was going to say and I didn't want to impeach her on that, if I had to. ¶4 An objective view of the record, including trial counsel's testimony at the Machner hearing, supports the conclusion that experienced counsel could reasonably have decided to elicit as much favorable testimony from A.D. as possible and otherwise seek to avoid elici

2019However, with regard to his cross-examination of A.D., trial counsel stated, I wasn't sure, and this is pure speculation in trying to determine why I didn't want a reason [from A.D.] in there, the only thing that sort of stands out, I was not sure what [A.D.] was going to say and I didn't want to impeach her on that, if I had to. ¶4 An objective view of the record, including trial counsel's testimony at the Machner hearing, supports the conclusion that experienced counsel could reasonably have decided to elicit as much favorable testimony from A.D. as possible and otherwise seek to avoid elici

2014State v. Cooks, 2006 WI App 262, ¶63 , 297 Wis. 2d 633 , 726 N.W.2d 322 . ¶63 The court of appeals in Cooks, quoting the federal Washington case, 219 F.3d at 634 , noted that "the mere fact that some negative evidence would have come in with the positive does not eliminate the prejudicial effect of leaving corroborative evidence unintroduced." Cooks, 297 Wis. 2d 633, ¶63 . ¶64 In assessing the prejudice caused by the defense trial counsel's performance, i.e., the effect of the defense trial counsel's deficient performance, a circuit court may not substitute its judgment for that of the jury in

2014State v. Cooks, 2006 WI App 262, ¶63 , 297 Wis. 2d 633 , 726 N.W.2d 322 . ¶63 The court of appeals in Cooks, quoting the federal Washington case, 219 F.3d at 634 , noted that "the mere fact that some negative evidence would have come in with the positive does not eliminate the prejudicial effect of leaving corroborative evidence unintroduced." Cooks, 297 Wis. 2d 633, ¶63 . ¶64 In assessing the prejudice caused by the defense trial counsel's performance, i.e., the effect of the defense trial counsel's deficient performance, a circuit court may not substitute its judgment for that of the jury in