State v. Allen, No. 02-2555-CR.

CourtUnited States State Supreme Court of Wisconsin
Citation274 Wis.2d 568,682 N.W.2d 433,2004 WI 106
Docket NumberNo. 02-2555-CR.
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. John ALLEN, Defendant-Appellant-Petitioner.
Decision Date08 July 2004

274 Wis.2d 568
2004 WI 106
682 N.W.2d 433

STATE of Wisconsin, Plaintiff-Respondent,
v.
John ALLEN, Defendant-Appellant-Petitioner

No. 02-2555-CR.

Supreme Court of Wisconsin.

Oral argument April 28, 2004.

Decided July 8, 2004.


274 Wis.2d 573
For the defendant-appellant-petitioner there were briefs by Michael J. Backes, Milwaukee, and oral argument by Michael J. Backes.

For the plaintiff-respondent the cause was argued by Christopher G. Wren, assistant attorney general, with whom on the case was Peggy A. Lautenschlager, attorney general.

¶ 1. PATIENCE D. ROGGENSACK, J.

John Allen petitions for review of an unpublished court of appeals decision that affirmed an order of the circuit court, Milwaukee County, M. Joseph Donald, presiding, denying Allen's postconviction motion without a hearing. In his postconviction motion, Allen claimed he was denied effective assistance of counsel. He also requested an order for postconviction discovery and an in camera review of certain records.

¶ 2. We conclude that in order to secure a hearing on a postconviction motion, Allen must have provided sufficient material facts—e.g., who, what, where, when, why, and how—that, if true, would entitle him to the relief he seeks. Because Allen failed to do so, and because the record also conclusively demonstrates that he is not entitled to relief, we conclude the circuit court did not erroneously exercise its discretion when it denied Allen's motion without a hearing.

I. BACKGROUND

¶ 3. On February 9, 2001, the State charged Allen with two counts of first-degree sexual assault of a child and two counts of second-degree sexual assault of a child in violation of Wis. Stat. § 948.02(1) and (2)

274 Wis.2d 574
(1995-96).1 The charges arose from separate incidents with four separate girls, Kelyanna A., Tekiara B., Shalisia B., and Erica J. Tekiara B. and Shalisia B. are Allen's stepdaughters. At the time of the alleged assaults, the girls lived with Allen and their mother, Lynn Allen. Several years after she allegedly was assaulted by Allen, Shalisia wrote a letter to Patricia B., her stepmother, in which she accused Allen of sexual assault. Patricia B. told her husband, Bobby B., who is the girls' biological father, and Bobby B. informed the police

¶ 4. All four of the girls testified at trial. Both Tekiara and Shalisia testified that they were assaulted by Allen five to six years earlier. Tekiara testified that she was happy living with her mother, who at that time was also living with Allen, her husband; however, Shalisia testified that she wanted to live with her father, Bobby B., and would "do anything" to make that happen. She said that the reason she wanted to live with her father was because Allen sexually assaulted her.

¶ 5. The only two defense witnesses were Bobby B., the girls' biological father, and Allen. Allen asserted that the alleged assaults did not happen, and suggested the girls were conspiring to falsely accuse him. He testified that Kelyanna was angry with him because he would not let Shalisia associate with Kelyanna anymore because Kelyanna, who was older than Shalisia, was dating boys and staying out late. He testified that he believed that Tekiara and Shalisia were angry with him and were falsely accusing him of sexual assault because

274 Wis.2d 575
he punished them for not washing the dishes. He also testified that Shalisia wanted to go live with her father, Bobby B

¶ 6. Bobby B. testified that there was pending litigation regarding the placement of Shalisia, but denied that he intended to accuse Allen of sexual assault to make it easier for him to get placement. He further denied that he told either Shalisia or Tekiara to tell the police that Allen sexually assaulted them; he testified he told the girls to tell only the truth. Allen's trial counsel questioned Bobby B. about a letter he supposedly had written to the police about the alleged sexual assaults. Bobby B. denied ever writing a letter, and no such letter was ever produced.

¶ 7. The jury found Allen guilty of the assaults against Kelyanna, Tekiara and Shalisia, and acquitted him of the alleged assault against Erica J. Allen was sentenced to an aggregate of 50 years in prison. Allen filed a postconviction motion alleging ineffective assistance of counsel, requesting a new trial in the interest of justice, and requesting postconviction discovery and an in camera review of all records of Milwaukee County's Sensitive Crime Unit regarding any allegations made by Bobby B. In support of his motion for ineffective assistance of counsel, Allen raised three issues: trial counsel's failure to be prepared to examine Bobby B.; his failure to call Lynn Allen as a witness; and his failure to submit what Allen characterized as a "Shiffra2 motion" regarding an in camera review of potentially exculpatory evidence.

274 Wis.2d 576
¶ 8. The circuit court denied Allen's motion without a Machner3 hearing. The court of appeals, in a per curiam decision, affirmed. Allen petitioned this court for review. He argued the circuit court erred in denying his motion because he had alleged specific instances of deficient performance that were prejudicial, as is required by State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996). We granted review to clarify the Bentley standard

II. DISCUSSION

A. Standard of Review

¶ 9. Whether a defendant's postconviction motion alleges sufficient facts to entitle the defendant to a hearing for the relief requested is a mixed standard of review. First, we determine whether the motion on its face alleges sufficient material facts that, if true, would entitle the defendant to relief. This is a question of law that we review de novo. Bentley, 201 Wis. 2d at 309-10. If the motion raises such facts, the circuit court must hold an evidentiary hearing. Id. at 310; Nelson v. State, 54 Wis. 2d 489, 497, 195 N.W.2d 629 (1972). However, if 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 the discretion to grant or deny a hearing. Bentley, 201 Wis. 2d at 310-11; Nelson, 54 Wis. 2d at 497-98. We

274 Wis.2d 577
require the circuit court "to form its independent judgment after a review of the record and pleadings and to support its decision by written opinion." Nelson, 54 Wis. 2d at 498. See Bentley, 201 Wis. 2d at 318-19 (quoting the same). We review a circuit court's discretionary decisions under the deferential erroneous exercise of discretion standard. In re the Commitment of Franklin, 2004 WI 38, ¶ 6, 270 Wis. 2d 271, 677 N.W.2d 276; Bentley, 201 Wis. 2d at 311.

B. Pretrial and Postconviction Motions

¶ 10. A defendant may make pretrial and postconviction motions. See, e.g., Wis. Stat. § 971.31 (2001-02) (permitting motions before trial whenever the general issue in the motion can be determined without trial); Wis. Stat. § 974.06 (2001-02) (allowing for the filing postconviction motions to vacate, set aside or correct a sentence). At a minimum, a motion, whether made pretrial or postconviction, must "[s]tate with particularity the [factual and legal] grounds for the motion," Wis. Stat. § 971.30(2)(c) (2001-02), and must provide a "good faith argument" that the relevant law entitles the movant to relief, Wis. Stat. § 802.05(1)(a) (2001-02).4 Not all motions require evidentiary hearings. See 9 Wiseman, Chiarkas and Blinka, Wisconsin Practice: Criminal Practice and Procedure § 11.5 (1996). However, where an evidentiary hearing is requested, one is not automatically granted. The court "does not have to hold an evidentiary hearing on a motion just because a party asks for one." State v. Velez, 224 Wis. 2d 1, 12, 589

274 Wis.2d 578
N.W.2d 9 (1999) (quoting United States v. Sophie, 900 F.2d 1064, 1071 (7th Cir. 1990)). We have defined sufficiency standards that must be met for both pretrial and postconviction motions before a hearing is granted.

1. Pretrial motions

¶ 11. When a motion is made before trial, the defendant likely has not fully developed the factual and legal issues involved in his or her case. Velez, 224 Wis. 2d at 13; State v. Garner, 207 Wis. 2d 520, 532-33, 558 N.W.2d 916 (Ct. App. 1996). As well, the defendant has the whole criminal process before him or her, and may make a motion at a later date. Therefore, even if the motion on its face does not allege facts to entitle the defendant to relief, a defendant generally is allowed an opportunity to develop the factual record. Velez, 224 Wis. 2d at 18; Garner, 207 Wis. 2d at 533-535. This safeguard protects a defendant's due process rights. Velez, 224 Wis. 2d at 14. We do not need to delve further into the sufficiency standard for pretrial motions as that issue is not directly before us today.5 We raise it only to point out that once the criminal process has been completed and the defendant convicted and sentenced, the reasons that support a lesser sufficiency standard for pretrial motions are no longer compelling, and instead, we must consider the strong policy that favors finality. Teague v. Lane, 489 U.S. 288, 309 (1989) (calling the principle of finality "essential to the operation of our criminal justice system"); State v. Lo, 2003 WI 107, ¶ 75, 264 Wis. 2d 1, 665 N.W.2d 756 (quoting

274 Wis.2d 579
Teague). Therefore, the sufficiency standard for postconviction motions requires more from a defendant.

2. Postconviction motions, the Bentley standard

¶ 12. As we stated earlier, the circuit court must hold a hearing when the defendant has made a legally sufficient postconviction motion, and has the discretion to grant or deny an evidentiary hearing even when the postconviction motion is legally insufficient. See supra, ¶ 9. 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;6 if one or...

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660 practice notes
  • State v. Romero-Georgana, No. 2012AP55.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 23, 2014
    ...805 N.W.2d 334. If the motion does allege sufficient facts, “the circuit court must hold an evidentiary hearing.” State v. John Allen, 2004 WI 106, ¶ 9, 274 Wis.2d 568, 682 N.W.2d 433 (citations omitted). “However, if the motion does not raise facts sufficient to entitle the movant to relie......
  • Partners v. Permira Advisers LLC, No. 2012AP1967.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 23, 2014
    ...note 5. 9. Factual assertions are evidenced by statements that describe: “who, what, where, when, why, and how.” See State v. Allen, 2004 WI 106, ¶ 23, 274 Wis.2d 568, 682 N.W.2d 433. 10. Subsection 1 of Wis. Stat. § 802.02 is based on Federal Rule 8(a). Charles D. Clausen & David P. Lowe, ......
  • State v. Pinno, Nos. 2011AP2424–CR, 2012AP918.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 18, 2014
    ...that the defendant is not entitled to relief, the circuit court has the discretion to grant or deny a hearing.” State v. Allen, 2004 WI 106, ¶ 9, 274 Wis.2d 568, 682 N.W.2d 433 (citations omitted). ¶ 39 Finally, Seaton argues that Judge Nuss should have recused himself. Whether a judge is r......
  • State v. Lemberger, No. 2015AP1452-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • April 20, 2017
    ...that the defendant is not entitled to relief, the circuit court has the discretion to grant or deny a hearing." State v. Allen , 2004 WI 106, ¶9, 274 Wis.2d 568, 682 N.W.2d 433. Whether the record conclusively demonstrates that the defendant is not entitled to relief is a question of law fo......
  • Request a trial to view additional results
661 cases
  • State v. Romero-Georgana, No. 2012AP55.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 23, 2014
    ...805 N.W.2d 334. If the motion does allege sufficient facts, “the circuit court must hold an evidentiary hearing.” State v. John Allen, 2004 WI 106, ¶ 9, 274 Wis.2d 568, 682 N.W.2d 433 (citations omitted). “However, if the motion does not raise facts sufficient to entitle the movant to relie......
  • Partners v. Permira Advisers LLC, No. 2012AP1967.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 23, 2014
    ...note 5. 9. Factual assertions are evidenced by statements that describe: “who, what, where, when, why, and how.” See State v. Allen, 2004 WI 106, ¶ 23, 274 Wis.2d 568, 682 N.W.2d 433. 10. Subsection 1 of Wis. Stat. § 802.02 is based on Federal Rule 8(a). Charles D. Clausen & David P. Lowe, ......
  • State v. Pinno, Nos. 2011AP2424–CR, 2012AP918.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 18, 2014
    ...that the defendant is not entitled to relief, the circuit court has the discretion to grant or deny a hearing.” State v. Allen, 2004 WI 106, ¶ 9, 274 Wis.2d 568, 682 N.W.2d 433 (citations omitted). ¶ 39 Finally, Seaton argues that Judge Nuss should have recused himself. Whether a judge is r......
  • State v. Lemberger, No. 2015AP1452-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • April 20, 2017
    ...that the defendant is not entitled to relief, the circuit court has the discretion to grant or deny a hearing." State v. Allen , 2004 WI 106, ¶9, 274 Wis.2d 568, 682 N.W.2d 433. Whether the record conclusively demonstrates that the defendant is not entitled to relief is a question of law fo......
  • Request a trial to view additional results

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