COURT OF APPEALS
DATED AND FILED
May 3, 2011
A. John Voelker
Acting Clerk of Court of Appeals
This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
A party may file with the Supreme Court a
petition to review an adverse decision by the
Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Cir. Ct. No. 2007CF384
STATE OF WISCONSIN
IN COURT OF APPEALS
STATE OF WISCONSIN,
A’KIM MACK, A/K/A KELVIN MACK,
APPEAL from an order of the circuit court for Milwaukee County:
DENNIS R. CIMPL, Judge. Affirmed.
Before Curley, P.J., Fine and Brennan, JJ.
A’Kim Mack, a/k/a Kelvin Mack, pro se, appeals
from an order denying his second WIS. STAT. § 974.06 (2009-10)1 motion. To
avoid the procedural bar of State v. Escalona-Naranjo, 185 Wis. 2d 168, 517
N.W.2d 157 (1994), Mack submits that he received information that his trial
attorney had a conflict of interest and that this information constitutes newly
discovered evidence. We reject Mack’s argument and affirm.
In 2007, Mack was charged with first-degree intentional homicide
while armed. Pursuant to a plea agreement, Mack entered an Alford plea2 to the
amended charge of second-degree reckless homicide. He received a twenty-fiveyear sentence, bifurcated as fifteen years of initial confinement and ten years of
extended supervision, consecutive to any other sentence. Mack did not appeal his
In 2009, Mack filed a motion pursuant to WIS. STAT. § 974.06. He
argued that the circuit court lacked the authority to impose a consecutive sentence.
The circuit court denied Mack’s motion. He did not appeal this decision.
In 2010, Mack filed a second motion pursuant to WIS. STAT.
§ 974.06. Mack claimed that his trial counsel had a conflict of interest because he
All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise
See North Carolina v. Alford, 400 U.S. 25 (1970). An Alford plea is made when a
defendant pleads guilty but maintains his or her innocence. See State v. Garcia, 192 Wis. 2d 845,
851 n.1, 532 N.W.2d 111 (1995).
represented Francis Clark, an alibi witness for Mack, who later was identified as a
witness for the State. According to Mack, Clark had retained his trial attorney to
dispute allegations that Clark hindered Mack’s apprehension and had “recently”
made him aware of meetings held between the prosecutor and his trial attorney
regarding the possible charges against Clark. Mack stated that Clark referred him
to his trial attorney and that he was unaware that Clark had retained his trial
attorney to represent her in the same matter. He sought a new trial based on these
facts. Mack asserted that if he had known that his attorney and Clark “had a
hidden agenda,” he would not have trusted the attorney with his defense. The
court denied Mack’s motion on grounds that it was procedurally barred by
Escalona and because the allegations set forth in the motion were conclusory. He
Mack argues that his second postconviction motion was based on
newly discovered evidence: information that his trial attorney had a conflict of
interest. He asserts that he was not aware of the alleged conflict of interest until
after he had filed his first WIS. STAT. § 974.06 motion. The issue then is whether
this information constitutes newly discovered evidence, and thus, a sufficient
reason to overcome Escalona’s procedural bar.3
Mack’s reference to and reliance on a July 20, 2010 affidavit provided by Clark is
improper as it postdates the notice of appeal and was not made part of the appellate record. See
State v. Aderhold, 91 Wis. 2d 306, 314, 284 N.W.2d 108 (Ct. App. 1979) (“The rule is well
established that reviewing courts are limited to the record, and are bound by the record. The
record is not to be enlarged by material which neither the trial court, nor the appellate court,
acting within their respective jurisdictions, have ordered incorporated in the record.”). Even if we
were to consider the affidavit, it does not establish the date on which Mack learned of his trial
attorney’s representation of Clark.
When a defendant files a WIS. STAT. § 974.06 motion after he has
already filed a previous motion or direct appeal, a sufficient reason must be shown
for failure to raise the new issues. Escalona, 185 Wis. 2d at 185; § 974.06(4).
Whether Escalona’s procedural bar applies to a postconviction claim is a question
of law entitled to independent review. See State v. Tolefree, 209 Wis. 2d 421,
424, 563 N.W.2d 175 (Ct. App. 1997).
To prevail on a claim asserting that there is newly discovered
evidence, a defendant must prove by clear and convincing evidence that: “(1) the
evidence was discovered after conviction; (2) the defendant was not negligent in
seeking evidence; (3) the evidence is material to an issue in the case; and (4) the
evidence is not merely cumulative.” State v. McCallum, 208 Wis. 2d 463, 473,
561 N.W.2d 707 (1997). “If the defendant proves these four criteria by clear and
convincing evidence, the circuit court must determine whether a reasonable
probability exists that a different result would be reached in a trial.” Id.
As the State points out, it is unclear when Mack actually received the
information from Clark that his trial attorney had a conflict of interest. In his
postconviction motion, Mack claimed only that Clark had “recently” made him
aware that his trial attorney represented Clark during meetings with the prosecutor
about possible charges against Clark. In his appellate brief, Mack asserts that he
received a letter from Clark advising him of the conflict. His postconviction
motion does not, however, reference or attach the letter. In light of the foregoing,
we agree with the State that Mack’s failure to specifically indicate when he
discovered the “new” information, precludes this court from concluding that it
qualifies as newly discovered evidence. See id. (“[T]he defendant must prove, by
clear and convincing evidence, that … the evidence was discovered after
Moreover, even if we were to conclude that the purported conflict
was discovered after his conviction, Mack failed to establish that he was not
negligent in seeking this evidence. See id. (“[T]he defendant must prove, by clear
and convincing evidence, that … the defendant was not negligent in seeking
evidence.”). In his postconviction motion, Mack claimed that Clark was his friend
and his alibi witness and that she referred him to his trial attorney. Mack further
alleged that his trial attorney and Clark “had a hidden agenda.” Even if this
attributed to his late discovery, Mack offers no explanation as to what prompted
Clark to later disclose his trial attorney’s representation of her. We conclude that
Mack’s allegations fall short of establishing by clear and convincing evidence that
he was not negligent in seeking this evidence, and indeed, suggest that he could
have discovered the alleged conflict earlier.
Because Mack has not established that he has newly discovered
evidence, the underlying WIS. STAT. § 974.06 motion is barred by Escalona.
By the Court.—Order affirmed.
Not recommended for publication in the official reports.