Justia.com Opinion Summary: David Balliette was convicted of, inter alia, homicide by intoxicated use of a motor vehicle. Balliette filed a motion for postconviction relief, raising four claims, including two for ineffective assistance of trial counsel. The trial court denied all four postconviction claims, and the court of appeals affirmed. Balliette then filed a motion for a new trial, alleging ineffective assistance of postconviction counsel for counsel's failure to raise certain claims of ineffective assistance of trial counsel. The circuit court denied the motion, holding Balliette had made merely conclusory allegations and did not provide a sufficient reason for raising the claim now rather than previously, and, therefore, an evidentiary hearing was not warranted. The court of appeals reversed and remanded for an evidentiary hearing, ruling that Balliette's motion alleged sufficient material facts that, if true, would warrant relief, and concluding that Balliette alleged a sufficient reason for not previously raising the claim. On review, the Supreme Court reversed the decision of the court of appeals, holding that Balliette was not entitled to an evidentiary hearing because the allegations in his motion for a new trial did not provide sufficient material facts that, if proven, demonstrated an entitlement to the relief sought.
Receive FREE Daily Opinion Summaries by Email Download as PDF
Loading PDF...
<![CDATA[
2011 WI 79
SUPREME COURT
CASE NO.:
COMPLETE TITLE:
OF
WISCONSIN
2009AP472
State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
David J. Balliette,
Defendant-Appellant.
REVIEW OF A DECISION OF THE COURT OF APPEALS
OPINION FILED:
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
July 19, 2011
January 4, 2011
CIRCUIT COURT
WINNEBAGO
KAREN L. SEIFERT
BRADLEY, J. dissents (Opinion filed).
ABRAHAMSON, C. J. joins dissent.
NOT PARTICIPATING:
ATTORNEYS:
For
the
Plaintiff-Respondent-Petitioner
the
cause
was
argued by Daniel J. O’Brien, Assistant Attorney General, with
whom on the briefs was J.B. Van Hollen, Attorney General.
For
the
Defendant-Appellant
there
was
a
brief
and
oral
argument by Steven D. Grunder, Assistant State Public Defender.
An amicus curiae brief was filed by Robert R. Henak, Henak
Law Office, S.C., for Wisconsin Association of Criminal Defense
Lawyers.
2011 WI 79
NOTICE
This opinion is subject to further
editing and modification.
The final
version will appear in the bound
volume of the official reports.
No.
2009AP472
(L.C. No.
1999CF375)
STATE OF WISCONSIN
:
IN SUPREME COURT
State of Wisconsin,
FILED
Plaintiff-Respondent-Petitioner,
v.
JUL 19, 2011
David J. Balliette,
A. John Voelker
Acting Clerk of Supreme
Court
Defendant-Appellant.
REVIEW of a decision of the Court of Appeals.
¶1
DAVID
unpublished
T.
decision
PROSSER,
of
the
J.
court
This
of
is
a
Reversed.
review
appeals,1
of
reversing
an
a
decision and order of the Winnebago County Circuit Court, Karen
L. Seifert, Judge.
This case requires us to determine whether
the defendant is entitled to an evidentiary hearing on the basis
of his conclusory allegation in a Wis. Stat. § 974.06 (2007-08)2
1
State v. Balliette, No. 2009AP472, unpublished slip op.
(Wis. Ct. App. March 10, 2010).
2
All subsequent references to the Wisconsin Statutes are to
the 2007-08 version unless otherwise indicated.
No.
motion
for
a
new
trial
that
his
postconviction
2009AP472
counsel
was
ineffective for not raising in a Wis. Stat. § 974.02 motion and
on direct appeal additional ineffective assistance of counsel
claims against his trial counsel.
¶2
We conclude that the defendant is not entitled to an
evidentiary
hearing
because
the
allegations
in
his
§ 974.06
motion do not provide sufficient material facts that, if proven,
demonstrate an entitlement to the relief sought.
¶3
The defendant's motion focused attention on the wrong
counsel;
it
was
conclusory
because
it
failed
to
carefully
address the two elements of ineffective assistance of counsel
set out in Strickland v. Washington, 466 U.S. 668 (1984); and it
generally
ignored
the
"five
'w's'
and
one
'h'"
methodology
outlined in State v. John Allen, 2004 WI 106, 274 Wis. 2d 568,
682
N.W.2d 433
(John
Allen),
which
meaningfully evaluating the claim.
guide
the
court
in
The motion failed to say who
would be called as a witness at an evidentiary hearing and what
their testimony was likely to prove.
In attempting to construct
a better defense for a retrial, Balliette did not do enough to
show that a new trial was required.
¶4
In
sum,
the
§ 974.06
motion
was
insufficient.
Accordingly, the decision of the court of appeals is reversed.
I. BACKGROUND AND PROCEDURAL HISTORY
¶5
On
August
30,
1999,
David
J.
Balliette
(Balliette)
drove his car after consuming six to seven beers and two shots
of liquor at the Ridgeway Bar in Neenah.
driving
west
on
County
Highway
2
GG,
he
came
As Balliette was
upon
a
Pontiac
No.
Firebird driven by Michele Thein (Thein).
2009AP472
In the process of
preparing to turn left into her driveway, Thein slowed down.
When she slowed down, Balliette attempted to pass her in the
left lane.
driving
Thein
As Thein turned left, Balliette struck the Pontiac,
both vehicles
was
into
dead
pronounced
the
as
ditch.
a
result
After
of
the
collision,
substantial
head
trauma.
¶6
Officer
Charles
Marousek
of
the
Winnebago
County
Sheriff's Department was the second officer to respond to the
accident.
He
spoke
with
statement about drinking.
Balliette
and
obtained
Balliette's
He also noticed a strong odor of
alcohol on Balliette's breath and observed that his speech was
slurred.
Officer
Marousek
then
administered
sobriety tests, all of which Balliette failed.
three
field
Officer Marousek
had Balliette perform a preliminary breath test, which resulted
in a reading of .201 percent breath alcohol.
Balliette
was
taken
Medical Center.
into
custody
and
At this point,
transported
to
Mercy
Approximately two hours after the accident,
Balliette provided a blood sample at the hospital.
It showed a
blood alcohol content of .183, which was extrapolated to .21
blood alcohol content at the time of the crash.
¶7
Balliette was
subsequently
charged
with
homicide
by
intoxicated use of a motor vehicle in violation of Wis. Stat.
§ 940.09(1)(a) and homicide by use of a motor vehicle with a
prohibited
alcohol
§ 940.09(1)(b).
concentration
in
violation
of
Wis.
Stat.
Balliette also was charged with operating after
revocation, an offense to which he pled guilty before trial.
3
No.
¶8
2009AP472
At trial, Balliette claimed that the crash would have
occurred regardless of his intoxication level.
He asserted that
Thein braked suddenly and pulled to the right, making room for
him to pass.
He argued that by attempting to pass on the left,
he executed a normal passing maneuver.
Balliette claimed that
after beginning to execute this maneuver, he noticed Thein's
brake lights when he was about six to seven car lengths behind
Thein.
He asserted that he applied his brakes and skidded into
her door as Thein turned into him.3
¶9
to
The State called two accident reconstruction experts
dispute
Balliette's
defense.
Both
experts
concluded
that
Balliette's version of the story was not possible, due to the
skid marks left by Balliette's vehicle and the lack of skid
marks from Thein's vehicle. The experts testified that Balliette
had ample distance, a clear view, and plenty of opportunity to
decelerate and avoid the collision.
Attorney
Kevin
Musolf,
retained
Balliette's trial counsel,
an
accident
reconstruction
expert named Charles Scalia. Attorney Musolf did not, however,
call the expert at trial. The jury found Balliette guilty, and
he was sentenced to 40 years in prison.
¶10
Attorney
Edward
postconviction
counsel.
including
for
two
Hunt
was
Attorney
ineffective
assigned
Hunt
assistance
as
raised
of
Balliette's
four
trial
claims,
counsel.
Attorney Hunt asserted that Attorney Musolf erred (a) by failing
3
Balliette also testified that Thein did not have her turn
signal on.
4
No.
2009AP472
to request the insertion of language in a jury instruction that
would have "explained and clarified" how the victim's "conduct
and acts" may have provided the defendant with an affirmative
defense;
and
(b)
by
failing
to
object
to
the
court's
consideration of victim impact statements at sentencing without
first
providing
statements.
Balliette
the
opportunity
to
review
the
Attorney Hunt did not, however, raise a claim for
ineffective assistance of trial counsel for Attorney Musolf's
failure to present an accident reconstruction expert.
The court
granted Balliette an evidentiary hearing in which Attorney Hunt
examined
Attorney
assistance
affidavit
of
on
Musolf
counsel.
sentencing
on
the
Attorney
two
issues
Musolf
recommendations
Attorney Hunt moved into evidence.
by
of
also
two
ineffective
prepared
jurors
an
that
The trial court ultimately
denied all four postconviction claims, and the court of appeals
affirmed.
¶11
In 2008 Balliette filed a motion pro se under Wis.
Stat. § 974.06 asking for a new trial.
He alleged ineffective
assistance of postconviction counsel for Attorney Hunt's failure
to
raise
certain
claims
of
ineffective
assistance
of
counsel.
¶12
Balliette's motion read in part as follows:
I.
Postconviction counsel was ineffective for
failing to challenge on direct appeal several acts and
omissions of trial counsel that constitute ineffective
assistance.
. . . .
5
trial
No.
2009AP472
II. Postconviction counsel was ineffective for
failing to challenge the court's ruling allowing
evidence that the defendant's driver's license was
revoked at the time of the accident.
¶13
Under I., Balliette wrote in part:
On direct appeal, Attorney Edward Hunt unsuccessfully
challenged Attorney Kevin Musolf's failure to request
more specific jury instructions and failure to object
to letters submitted to the sentencing judge.
Hunt
failed to challenge other aspects of Musolf's conduct,
which are detailed below.
(Citations omitted.)
(Emphasis added.)
¶14
John
Balliette attached to his motion a detailed report by
DeRosia
(DeRosia),
reconstruction expert.
a
professional
engineer
and
accident
In his report, DeRosia questioned the
conclusions of the State's experts and pointed out that one of
the expert's
conclusions was
based
on
an
incorrect
piece
of
evidence, namely, that Thein's Pontiac did not have an anti-lock
brake
system.
DeRosia's
report
stated
that
such
a
braking
system was nearly universal in General Motors vehicles at the
time.
Furthermore,
pictures
of
the
Pontiac
showed
an "ABS"
label——a common abbreviation for anti-lock braking system.
This
information allegedly rebutted the State's trial testimony that
if Thein had braked suddenly, she would have left skid marks.
Based on these facts and other assertions, DeRosia questioned
the validity of the conclusions made by the State's accident
reconstruction experts.
¶15
Balliette's 16-page motion raised multiple questions
about the performance of his trial counsel.
His trial counsel
did not present an accident reconstruction expert at trial to
rebut the two experts presented by the State; did not correctly
6
No.
2009AP472
inform the defendant or the court with respect to a lesserincluded offense; and should not have agreed to the wording of a
stipulation
driver's
counsel
read
to
license.
should
the
have
about
motion
The
jury
also
challenged
the
defendant's
asserted
the
that
circuit
revoked
his
court's
trial
ruling
allowing evidence that the defendant's license was revoked at
the time of the accident.
the
performance
of
Balliette's motion did not focus on
Attorney
Hunt
except
to
assert
that
he
"failed to challenge [these] other aspects of Musolf's conduct."
As a result, the circuit court denied Balliette's claim, ruling
that Balliette had made merely conclusory allegations and did
not provide a sufficient reason for raising the claim now rather
than previously, and, therefore, an evidentiary hearing was not
warranted.
The
circuit
court
denied
Balliette's
motion
for
reconsideration.
¶16
The
evidentiary
court
hearing,
of
appeals
on
the
reversed
basis
and
that
remanded
Balliette's
for
an
motion
alleged sufficient material facts that, if true, would warrant
relief.
Balliette, No. 2009AP472, unpublished slip op. at 3-4.
In addition, the court of appeals concluded that since this was
a
motion
for
ineffectiveness
of
postconviction
counsel,
Balliette alleged a sufficient reason for not previously raising
the claim.
¶17
Id. at 3.
The
State
petitioned
court of appeals' order.
this
court
for
review
of
the
We granted the petition on August 31,
2010.
II. STANDARD OF REVIEW
7
No.
¶18
2009AP472
The issue in this case is whether Balliette's Wis.
Stat. § 974.06 motion is sufficient on its face to entitle him
to
an
evidentiary
hearing
on
his
postconviction counsel claim.
ineffective
of
Sufficiency of the motion is a
question of law, which we review de novo.
Wis. 2d 568, ¶9.
assistance
John Allen, 274
If the motion raises sufficient facts that, if
true, show that the defendant is entitled to relief, the circuit
court must hold an evidentiary hearing.
Id.
However, if 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 grant or denial of the
motion is a matter of discretion entrusted to the circuit court.
Id.
(citing
State
v.
Bentley,
201
Wis. 2d 303,
310-11,
548
N.W.2d 50 (1996); Nelson v. State, 54 Wis. 2d 489, 497-98, 195
N.W.2d 629 (1972)).
¶19
Whether counsel was ineffective is a mixed question of
fact and law.
State ex rel. Flores v. State, 183 Wis. 2d 587,
609, 516 N.W.2d 362 (1994).
The circuit court's findings of
fact will not be disturbed unless shown to be clearly erroneous.
State
v.
McDowell,
N.W.2d 500.
2004
WI
70,
¶31,
272
Wis. 2d 488,
681
The ultimate conclusion as to whether there was
ineffective assistance of counsel is a question of law.
Flores,
183 Wis. 2d at 609.
III. DISCUSSION
¶20
An analysis of Balliette's motion for postconviction
relief under Wis. Stat. § 974.06 requires the application of
several different tests.
To evaluate the sufficiency of the
8
No.
allegations
assistance
in
of
his
motion,
counsel
we
claims
must
in
consider
relation
his
ineffective
the
to
pleading requirements for a § 974.06 motion.
2009AP472
established
We first revisit
the constitutional test for ineffective assistance of counsel as
articulated
in
Strickland.
Second,
we
review
the
pleading
requirements derived from past cases involving § 974.06 motions,
including "the five 'w's' and one 'h' test" articulated in John
Allen,
274
Wis. 2d 568.
Finally,
we
apply
these
tests
and
principles to Balliette's motion.
A.
¶21
Ineffective Assistance of Postconviction Counsel
Under
the
Sixth
and
Fourteenth
Amendments
to
the
United States Constitution, a criminal defendant is guaranteed
Strickland, 466
the right to effective assistance of counsel.
U.S.
at
686.
The
Supreme
Court
explained
that
a
convicted
defendant must show two elements to establish that his counsel's
assistance
was
constitutionally
ineffective:
First,
that
counsel's performance was deficient; second, that the deficient
performance resulted in prejudice to the defense.
¶22
Id. at 687.
The defendant does not show the first element simply
by demonstrating that his counsel was imperfect or less than
ideal.
The
Supreme
Court
has
made
clear
that,
under
the
constitution, a defendant is entitled to "reasonably effective
assistance" by a "reasonably competent attorney."
88.
Id. at 687-
Thus, a court looks to whether the attorney's performance
was reasonably effective considering all the circumstances.
at 688.
9
Id.
No.
¶23
The
reasonableness
of
counsel's
2009AP472
conduct
must
be
evaluated "on the facts of the particular case, viewed as of the
time of counsel's conduct."
Id. at 690.
"The benchmark for
judging any claim of ineffectiveness must be whether counsel's
conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a
just result."
¶24
The
Id. at 686.
defendant
may
not
presume
the
second
element,
prejudice to the defense, simply because certain decisions or
Id. at 692-93.
actions of counsel were made in error.
Rather,
the defendant must show that "particular errors of counsel were
unreasonable" and "that they actually had an adverse effect on
the defense."
inquiry
that
Id. at 693 (emphasis added).
requires
circumstances.
Id.
a
court
to
This, too, is an
consider
the
surrounding
After all, "[A]n act or omission that is
unprofessional in one case may be sound or even brilliant in
another."
an
Id.
The proper test for prejudice in the context of
ineffective
whether
"there
assistance
is
a
of
counsel
reasonable
claim
probability
is,
therefore,
that,
but
for
counsel's unprofessional errors, the result of the proceeding
would
have
been
different.
A
reasonable
probability
is
a
probability sufficient to undermine confidence in the outcome."
Id. at 694.
¶25
Importantly,
counsel
is
"strongly
presumed
to
have
rendered" adequate assistance within the bounds of reasonable
professional judgment.
Id. at 690; see also State v. Guerard,
2004 WI 85, ¶43, 273 Wis. 2d 250, 682 N.W.2d 12.
10
A court must
No.
2009AP472
be vigilant against the skewed perspective that may result from
hindsight,
and
it
may
not
second-guess
counsel's
solely because the defense proved unsuccessful.
performance
Strickland, 466
U.S. at 689; see also State v. Harper, 57 Wis. 2d 543, 556-57,
205
N.W.2d 1
counsel,
one
(1973)
("In
considering
should
not
by
alleged
hindsight
incompetency
reconstruct
the
of
ideal
defense.").
¶26
Counsel's decisions in choosing a trial strategy are
to be given great deference.
went
so
far
as
to
say
Indeed, the Court in Strickland
that
"strategic
choices
made
after
thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable."
690.
Even
decisions
made
with
Strickland, 466 U.S. at
less
than
a
thorough
investigation may be sustained if reasonable, given the strong
presumption of effective assistance and deference to strategic
decisions.
State v. Carter, 2010 WI 40, ¶23, 324 Wis. 2d 640,
782 N.W.2d 695 (citing Strickland, 466 U.S. at 690-91).
¶27
In sum, the law affords counsel the benefit of the
doubt; there is a presumption that counsel is effective unless
shown otherwise by the defendant.
¶28
This presumption is not limited to trial counsel. It
applies to postconviction and appellate counsel as well.
See
Smith v.
(applying
the
assistance
of
Strickland
Robbins, 528
analysis
to
U.S.
a
259,
claim
285-86
of
(2000)
ineffective
counsel on direct appeal); United States v. Cook, 45 F.3d 388,
392 (10th Cir. 1995); see generally Lissa Griffin, The Right to
Effective Assistance of Appellate Counsel, 97 W. Va. L. Rev. 1
11
No.
(1994).
2009AP472
Consequently, a motion for a new trial under § 974.06
based on ineffective assistance of postconviction counsel must
lay out the traditional elements of deficient performance and
prejudice to the defense.
B.
Method of Raising Ineffective Assistance of
Postconviction Counsel
¶29
The first opportunity after trial to raise the issue
of counsel's ineffectiveness at trial is in a postconviction
motion under § 974.02.
Postconviction counsel may move for a
new trial on grounds that trial counsel was constitutionally
ineffective.
subject
to
The
direct
circuit
court's
appeal.
counsel . . . cannot
be
postconviction
in
motion
"Claims
reviewed
the
denial
trial
of
of
on
this
motion
ineffective
appeal
court."
trial
absent
State
is
ex
a
rel.
Rothering v. McCaughtry, 205 Wis. 2d 675, 677-78, 556 N.W.2d 136
(Ct. App. 1996).
¶30
In State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905
(Ct. App. 1979), a defendant convicted of sexual assault accused
his trial counsel of ineffective assistance on multiple grounds.
The trial court heard testimony at a postconviction hearing, but
trial counsel did not testify.
motion was denied.
¶31
Id. at 804.
The postconviction
Id.
In its decision, the court of appeals made several
observations:
This court is of the opinion that where a
counsel's conduct at trial is questioned, it is the
duty and responsibility of subsequent counsel to go
beyond mere notification and to require counsel's
12
No.
2009AP472
presence at the hearing in which his conduct is
challenged.
We hold that it is a prerequisite to a
claim of ineffective representation on appeal to
preserve the testimony of trial counsel.
We cannot
otherwise determine whether trial counsel's actions
were the result of incompetence or deliberate trial
strategies.
In such situations, then, it is the
better rule, and in the client's best interests, to
require
trial
counsel
to
explain
the
reasons
underlying his handling of a case.
In the instant case, the record is devoid of any
testimony from defendant's trial counsel regarding his
conduct in the defense of his client.
Such an offer
of proof is necessary and, without more, we decline to
find that the manner in which counsel defended the
appellant was of such a nature as to cause us to find
him incompetent.
Id.
The
evidentiary
hearing
to
evaluate
counsel's
effectiveness, which includes counsel's testimony to explain his
or her handling of the case, is now called a Machner hearing.
¶32
To bring a postconviction motion alleging ineffective
assistance of appellate counsel, a defendant is required to file
a petition for habeas corpus with the appellate court that heard
the
appeal.
State
N.W.2d 540 (1992).
ineffective
is
v.
Knight,
168
Wis. 2d 509,
520,
484
When, however, the conduct alleged to be
postconviction
counsel's
failure
to
highlight
some deficiency of trial counsel in a § 974.02 motion before the
trial court, the defendant's remedy lies with the circuit court
under
either
corpus.
¶33
Wis.
Stat.
§ 974.06
or
a
petition
for
habeas
Rothering, 205 Wis. 2d at 679, 681.
There
is
no
dispute
that
Balliette
has
motion for a new trial in the proper court.
C.
Motions Under Wis. Stat. § 974.06
13
filed
his
No.
¶34
After
provided
custody
in
the
Wis.
time
Stat.
for
appeal
§ 974.02
or
has
2009AP472
postconviction
expired,
a
remedy
prisoner
in
under sentence of a court may bring a motion to vacate,
set aside, or correct a sentence, utilizing the procedure set
out in Wis. Stat. § 974.06.
Section 974.06(1) allows such a
motion where the prisoner is claiming that (1) his sentence was
imposed in violation of the constitution; (2) the court imposing
the sentence was without jurisdiction; or (3) the sentence was
in excess
attack.
786
of
the
maximum
or
otherwise
subject
to
collateral
State v. Aaron Allen, 2010 WI 89, ¶22, 328 Wis. 2d 1,
N.W.2d 124
(Aaron
Allen).
A
claim
that
trial
counsel
provided ineffective assistance is a claim that the defendant's
sentence was imposed in violation of the constitution.4
¶35
time."
A motion for relief under § 974.06 "may be made at any
Wis. Stat. § 974.06(2).
certain requirements.
However, a defendant must meet
These requirements are set out in Wis.
Stat. § 974.06(4):
(4) All grounds for relief available to a person
under this section must be raised in his or her
original, supplemental or amended motion.
Any ground
finally adjudicated or not so raised, or knowingly,
voluntarily and intelligently waived in the proceeding
4
It should be noted that a defendant may raise only
constitutional or jurisdictional issues in a Wis. Stat. § 974.06
motion.
State v. Evans, 2004 WI 84, ¶33, 273 Wis. 2d 192, 682
N.W.2d 784 (citing Peterson v. State, 54 Wis. 2d 370, 381, 195
N.W.2d 837 (1972); State v. Nicholson, 148 Wis. 2d 353, 369, 435
N.W.2d 298 (Ct. App. 1988)).
Thus, "a § 974.06 motion may not
be used to raise challenges to sufficiency of the evidence, jury
instructions, evidentiary rulings, or procedural matters."
Evans, 273 Wis. 2d 192, ¶33.
14
No.
2009AP472
that resulted in the conviction or sentence or in any
other proceeding the person has taken to secure relief
may not be the basis for a subsequent motion, unless
the court finds a ground for relief asserted which for
sufficient reason was not asserted or was inadequately
raised in the original, supplemental or amended
motion.
¶36
If a defendant did not file a motion for relief under
Wis. Stat. § 974.02 or a direct appeal, he is not subject to the
"sufficient reason" requirement of § 974.06(4).
State v. Lo,
2003 WI 107, ¶44 n.11, 264 Wis. 2d 1, 665 N.W.2d 756 (citing
Loop v. State, 65 Wis. 2d 499, 222 N.W.2d 694 (1974)).
However,
because the purpose of § 974.06 is to consolidate all claims of
error into one motion or appeal, claims that could have been
raised
in
the
defendant's
direct
appeal
or
in
a
previous
§ 974.06 motion are barred from being raised in a subsequent
§ 974.06 motion absent a showing of a sufficient reason why the
claims
were
§ 974.06
not
motion.
raised
on
Lo,
264
direct
appeal
Wis. 2d 1,
or
¶44
in
a
(citing
previous
State
v.
Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994)).
¶37
In Rothering, the court of appeals opined that "in
some circumstances . . . ineffective postconviction counsel" may
constitute "sufficient reason as to why an issue which could
have been raised on direct appeal was not."
Wis. 2d at 682.
Rothering, 205
This observation was noted in State v. Love,
2005 WI 116, ¶31 n.11, 284 Wis. 2d 111, 700 N.W.2d 62, and in
Aaron Allen, 328 Wis. 2d 1, ¶85.
However, the Aaron Allen court
indicated that the trial court would be required to engage in
fact-finding to rule on the sufficiency of the reason.
15
Id.
No.
¶38
The
conclusory
issue
in
allegation
ineffective
for
this
that
not
case
his
raising
is
2009AP472
whether
Balliette's
postconviction
additional
counsel
challenges
was
to
the
effectiveness of his trial counsel is sufficient to require an
evidentiary hearing.
D.
¶39
Test For the Sufficiency of the Reason
When is a defendant entitled to an evidentiary hearing
on his Wis. Stat. § 974.06 motion?
¶40
As
a
general
rule,
a
motion
must
"[s]tate
with
particularity the grounds for the motion and the order or relief
sought."
trial
Wis. Stat. § 971.30.
based
upon
the
postconviction
counsel,
particularity
of
how
When the relief sought is a new
alleged
this
the
ineffective
statute
appears
defendant
assistance
to
intends
require
to
show
of
some
that
postconviction counsel's performance was objectively deficient
and how that performance resulted in prejudice to the defense.
¶41
related
Motions under Wis. Stat. § 974.06, especially motions
to
ineffective
assistance
of
counsel,
have
developed
195
N.W.2d 629
their own particularized standards.
¶42
In
Nelson
v.
State,
54
Wis. 2d 489,
(1972), the court considered a defendant's motion to vacate a
guilty plea under § 974.06 (1970).
Id. at 494.
The defendant
argued that an evidentiary hearing is required whenever a motion
is
filed
to
vacate
patently frivolous.
precedent
argument.
from
plea
of
Id. at 495.
other
Id.
a
at
guilty,
the
court
Instead,
16
the
motion
is
After an extensive review of
jurisdictions,
495-97.
unless
this
rejected
court
this
said
No.
2009AP472
specifically: "[I]f a motion to withdraw a guilty plea after
judgment
and
sentence
alleges
facts
which,
if
true,
would
entitle the defendant to relief, the trial court must hold an
evidentiary hearing."
¶43
Id. at 497.
This language squares with § 974.06(3), which reads in
part: "(3) Unless the motion and the files and records of the
action
conclusively
show
that
the
person
is
entitled
to
no
relief, the court shall: . . . (c) Grant a prompt hearing."
¶44
But then the Nelson court went on:
However, if 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.
It is incumbent upon the trial
court to form its independent judgment after a review
of the record and pleadings and to support its
decision by written opinion.
Id. at 497-98.
¶45
With this language, the Nelson court emphasized the
fact that a § 974.06 motion places the burden of proper pleading
upon the defendant inasmuch as the motion comes "after judgment
and sentence."
three
grounds
Id. at 497.
to
deny
evidentiary hearing.
¶46
the
It also gave the circuit court
motion
without
conducting
an
Id. at 497-98.
The Nelson decision was followed in Smith v. State, 60
Wis. 2d 373, 378, 210 N.W.2d 678 (1973); Levesque v. State, 63
Wis. 2d 412,
418-21,
217
N.W.2d 317
17
(1974);
and
State
v.
No.
2009AP472
Washington, 176 Wis. 2d 205, 215-16, 500 N.W.2d 331 (Ct. App.
1993), among others.
¶47
In 1996 this court heard State v. Bentley, in which
the defendant sought to withdraw his guilty plea on the basis of
ineffective assistance of counsel.
¶48
Relying
on
Nelson,
Id. at 306.
the
court
reiterated
that
a
defendant must be afforded an evidentiary hearing if he brings a
motion
alleging
relief.
that,
Id. at 309-10.
however,
hearing
facts
the
defendant
because
assertions
which
Bentley's claim."
his
if
would
entitle
him
to
The court held that in Bentley's case,
was
not
motion
would
true,
allow
Id. at 316.
entitled
failed
a
to
court
to
allege
to
an
evidentiary
"any
meaningfully
factual
assess
Without such facts, his claim of
ineffective assistance of counsel was "merely conclusory."
Id.
at 318.
¶49
Although
the
Bentley
decision
relied
on
Nelson,
somewhat restated the test:
Nelson sets forth a two-part test which necessitates a
mixed standard of appellate review. If the motion on
its face alleges facts which would entitle the
defendant to relief, the circuit court has no
discretion and must hold an evidentiary hearing.
Whether a motion alleges facts which, if true, would
entitle a defendant to relief is a question of law
that we review de novo.
However, if the motion fails to allege sufficient
facts, the circuit court has the discretion to deny a
postconviction motion without a hearing based on any
one of the three factors enumerated in Nelson.
When
reviewing a circuit court's discretionary act, this
court uses the deferential erroneous exercise of
discretion standard.
18
it
No.
2009AP472
Bentley, 201 Wis. 2d at 310-11 (citations omitted).
¶50
The apparent inconsistency between the test in Nelson
and the test in Bentley was discussed extensively by dissents in
Love, 284 Wis. 2d 111, ¶¶67-73 (Prosser, J., dissenting), and
State v. Howell, 2007 WI 75, ¶¶148-153, 301 Wis. 2d 350, 734
N.W.2d 48 (Prosser, J., dissenting), prompting a clarification
from the court.
The majority in Howell stated: "The correct
interpretation of Nelson/Bentley is that an evidentiary hearing
is
not
mandatory
if
the
record
as
a
whole
conclusively
demonstrates that defendant is not entitled to relief, even if
the motion alleges sufficient nonconclusory facts."
Id., ¶77
n.51.
¶51
flesh
The court has made overlapping efforts to explain and
out
the
pleading
requirements
employing the Nelson standards.
general.
of
a
§ 974.06
motion,
One effort is theoretical and
The other effort is practical and specific.
¶52
In
John
Allen,
the
court
contrasted
postconviction
motions with motions before trial, noting that at pretrial, the
defendant has the whole criminal process before him and may make
a motion at a later date.
motion
on
defendant
its
to
Id., ¶11.
face
does
relief,
a
not
allege
defendant
is
Therefore, even if the
facts
generally
opportunity to develop the factual record."
v.
Velez,
safeguard
224
Wis. 2d 1,
protects
a
18,
589
defendant's
Allen, 274 Wis. 2d 568, ¶11.
19
to
the
"allowed
an
Id. (citing State
N.W.2d 9
due
entitle
process
(1999)).
rights."
"This
John
No.
¶53
By
demanding
contrast,
standards.
hearings."
a
postconviction
"Not
Id., ¶10.
all
motion
motions
2009AP472
entails
require
more
evidentiary
The policy underlying higher standards
for postconviction motions is 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."
Id.,
¶11
(citing Teague v. Lane, 489 U.S. 288, 309 (1989)).
¶54
In State v. Hampton, 2004 WI 107, 274 Wis. 2d 379, 683
N.W.2d 14,
we
cases——which
discussed
spark
§ 974.06——and
the
the
difference
normal
non-plea
Bangert-type
cases
between
Bentley-type
colloquy
involving
motion
an
under
allegedly
defective plea colloquy in which a motion homes in on the court
transcript.
Id.,
¶¶50-65.
See
also
State
v.
Bangert,
131
Wis. 2d 246, 389 N.W.2d 12 (1986).
¶55
In
a
Bangert-type
case,
the
defendant
points
to
a
specific deficiency in the plea colloquy and asserts that he
lacked
the
requisite
understanding
intelligent, and voluntary plea.
to
make
a
knowing,
Because evidence to support
the defendant's motion is contained in the court transcript, the
State bears the burden of proof in any Bangert hearing.
¶56
understand
A Bangert-type "allegation that a defendant did not
something
is
qualitatively
different
from
the
allegation of a legal conclusion such as 'counsel's performance
was
deficient
and
resulted
in
Hampton, 274 Wis. 2d 379, ¶58.
prejudice
to
the
defendant.'"
The latter allegation, the court
20
No.
said,
cries
out
"for
supporting
facts,
and
2009AP472
these
supporting
facts must be alleged to satisfy the defendant's burden for an
evidentiary hearing."
Id.
The court continued:
court
explained
that
normally
a
[T]he
Bentley
defendant is entitled to withdraw a guilty plea after
sentencing only upon a showing of "manifest injustice
by clear and convincing evidence." When, for example,
the basis for this injustice is an allegation that
defendant involuntarily entered a plea because of the
ineffective assistance of counsel, his claim raises
questions
about
both
deficient
performance
and
prejudice.
To establish deficient performance, a
defendant must necessarily provide the factual basis
for the court to make a legal determination. To show
prejudice, a defendant must do more than merely allege
that he would have pleaded differently but for the
alleged deficient performance.
He must support that
allegation with "objective factual assertions."
Id., ¶60 (citations omitted).
¶57
In addition, the Hampton court observed that:
Bentley-type allegations will often depend on facts
outside the record. To ask the court to examine facts
outside the record in an evidentiary hearing requires
a particularized motion with sufficient supporting
facts to warrant the undertaking.
. . . .
In Bentley-type cases, the defendant has the
burden of making a prima facie case for an evidentiary
hearing, and if he succeeds, he still has the burden
of proving all the elements of the alleged error, such
as deficient performance and prejudice. The defendant
must prove the linkage between his plea and the
purported defect.
The defendant's proof must add up
to manifest injustice.
Consequently, the requisite specificity required
for establishing a prima facie case mirrors the
defendant's ultimate burden of proof.
It also
reflects the substantive basis for this court's shift
of the burden of proof.
21
No.
2009AP472
Id., ¶¶61, 63-64 (first emphasis added).
¶58
John
Allen
and
Hampton
provide
the
theoretical
foundation for the specificity required in a § 974.06 motion,
namely, the policy favoring finality, the pleading and proof
burdens that have shifted to the defendant in most situations
after
conviction,
and
the
need
to
minimize
time-consuming
postconviction hearings unless there is a clearly articulated
justification for them.
¶59
John
Allen
also
provides
a
practical
and
specific
blueprint for applying this theory: the five "w's" and one "h"
test, "that is, who, what, where, when, why, and how.
A motion
that alleges, within the four corners of the document itself,
the kind of material factual objectivity we describe . . . will
necessarily
include
sufficient
material
facts
for
courts to meaningfully assess a defendant's claim."
reviewing
John Allen,
274 Wis. 2d 568, ¶23 (emphasis added).
E.
Applying Wis. Stat. § 974.06 Pleading Principles
to Balliette's Motion
¶60
A
allegation
§ 974.06
that
motion
for
a
postconviction
new
trial
counsel
was
based
on
an
constitutionally
ineffective must apply the principles set out above.
¶61
Balliette's objective is to win a new trial.
He must
allege facts which, if true, would entitle him to a new trial.
An evidentiary hearing is nothing more than an intermediate step
toward
his
evidentiary
objective.
hearing
It
would
is
not
merely
an
end
provide
in
itself.
Balliette
with
An
the
opportunity to prove his pleaded claims that he is entitled to a
22
No.
new trial.
2009AP472
If the motion contained all the proof necessary to
show that he was entitled to a new trial, he would not need an
evidentiary hearing.
¶62
Balliette's § 974.06
motion and direct appeal.
motion
came
after
his
§ 974.02
The claims raised in his § 974.06
motion certainly could have been raised in his initial motion
and
direct
appeal.
Thus,
under
our
decisions
in
Escalona-
Naranjo and Lo, Balliette was required to provide "a sufficient
reason as to why an issue which could have been raised on direct
Rothering, 205 Wis. 2d at 682.
appeal was not."
That reason is
the alleged ineffectiveness of postconviction counsel.
¶63
However,
for
Balliette
to
obtain
an
evidentiary
hearing based on this reason, he was required to do more than
assert
that
his
postconviction
counsel
was
ineffective
for
failing to challenge on direct appeal several acts and omissions
of
trial
counsel
assistance.
He
that
was
he
alleges
required
to
constituted
do
more
than
ineffective
assert
that
postconviction counsel "failed to challenge [these aspects of
Attorney
Musolf's]
Balliette's
showing
conduct."
§ 974.06
that
ineffective,
he
motion
was
postconviction
was
required
Because
entirely
counsel
to
the
viability
dependent
upon
of
his
was
constitutionally
that
Attorney
allege
Hunt's
"performance was deficient" and "that the deficient performance
prejudiced the defense."
¶64
Strickland, 466 U.S. at 687.
To show that the performance was deficient, Balliette
was required to set forth allegations that Attorney Hunt made
errors
so
serious
that
counsel
23
was
not
functioning
as
the
No.
2009AP472
"counsel" guaranteed the defendant by the Sixth Amendment.
Id.
For example, Balliette could have alleged such deficiency by
showing
that
counsel's
unreasonable . . . in
performance
failing
to
was
find
"objectively
arguable
issues
to
appeal," as the Supreme Court described it in Smith, 528 U.S. at
285.
¶65
Balliette's
October
31,
2008,
motion
identifies
"several acts and omissions" of trial counsel that he believes
constitute ineffective assistance and should have been raised by
postconviction counsel.
But this is, at best, only part of what
is required in a § 974.06 motion.
assert
it
why
was
deficient
performance
counsel not to raise these issues.
v.
Murray,
477
U.S.
527,
Balliette was required to
534
for
postconviction
As the Court noted in Smith
(1986),
counsel's
"deliberate,
tactical decision not to pursue a particular claim is the very
antithesis
of
the
kind
of
circumstance
that
would
warrant
excusing a defendant's failure to adhere to a State's legitimate
rules
for
the
fair
and
orderly
disposition
of
its
criminal
cases."
¶66
Moreover, counsel's mistaken perception that a claim
had little chance of success does not necessarily change the
result.
Id.
"[T]he mere fact that counsel failed to recognize
the factual or legal basis for a claim, or failed to raise the
claim despite recognizing it," Murray v. Carrier, 477 U.S. 478,
486-87
(1986),
does
not
necessarily
performance.
24
constitute
deficient
No.
¶67
the
2009AP472
Thus, Balliette's § 974.06 motion was required to make
case
of
undisputed
Attorney
that
Hunt's
Attorney
deficient
Hunt
did
performance.
raise
two
It
issues
is
of
ineffective assistance of trial counsel in his § 974.02 motion
after trial and that he succeeded in winning a Machner hearing
on these claims.
Attorney Musolf.
At that
hearing,
Attorney
Hunt
questioned
To successfully plead ineffective assistance
of postconviction counsel against this background, Balliette's
2008 § 974.06 motion needed to do more than point to issues that
postconviction counsel did not raise.
He needed to show that
failing to raise those issues fell below an objective standard
of
reasonableness.
"overcome
the
This
presumption
effort
that,
would
under
have
the
required
him
circumstances,
to
the
challenged action 'might be considered sound . . . strategy.'"
Strickland, 466 U.S. at 689 (citing Michel v. Louisiana, 350
U.S. 91, 101 (1955)).
His legal attack would have required
facts, presented in a "five 'w's' and one 'h'" format.
¶68
Balliette
also
needed
to
show
how
he
intended
to
establish deficient performance if he was given the chance at an
evidentiary hearing.
The evidentiary hearing is not a fishing
expedition to discover ineffective assistance; it is a forum to
prove ineffective assistance.
Both the court and the State are
entitled to know what is expected to happen at the hearing, and
what the defendant intends to prove.
¶69
Balliette's
motion
does
not
assert
that
the
issues
that Attorney Hunt failed to raise are obvious and very strong,
and
that
the
failure
to
raise
25
them
cannot
be
explained
or
No.
justified.
Neither does
his
motion
support his ultimate objective.
allege
facts
2009AP472
that would
The motion does not set forth
what Balliette intended to prove at an evidentiary hearing, if
one were granted.
¶70
Balliette's motion also fails to assert how Attorney
Hunt's purported deficient performance resulted in prejudice to
the defense.
Balliette's
Had Attorney Hunt raised the issues laid out in
motion,
he
would
very
likely
have
been
given
an
expanded Machner hearing, but it does not necessarily follow
that he would have been given a new trial.
Balliette's duty at
this point was to allege facts, which, if true, would entitle
him to a new trial.
¶71
Wisconsin Stat. § 805.18 is Wisconsin's harmless error
statute:
Mistakes and omissions; harmless error.
(1) The
court shall, in every stage of an action, disregard
any error or defect in the pleadings or proceedings
which shall not affect the substantial rights of the
adverse party.
(2) No judgment shall be reversed or set aside
or new trial granted in any action or proceeding on
the ground of selection or misdirection of the jury,
or the improper admission of evidence, or for error as
to any matter of pleading or procedure, unless in the
opinion of the court to which the application is made,
after
an
examination
of
the
entire
action
or
proceeding, it shall appear that the error complained
of has affected the substantial rights of the party
seeking to reverse or set aside the judgment, or to
secure a new trial.
Wis. Stat. § 805.18.
26
No.
¶72
2009AP472
Two of Balliette's claims with regard to ineffective
assistance of counsel would have been evaluated under harmless
error rules, namely, the lesser included offense claim and the
stipulation-wording
claim.
Neither
claim
is
likely
to
have
resulted in a new trial, because neither was so prejudicial to
the defense as to undermine confidence in the outcome of his
trial.
¶73
Trial
counsel's
failure
to
call
an
accident
reconstruction expert appears on the surface to be more meaty.
On the other hand, Balliette's defense at trial was and his
defense
at
any
retrial
would
be
an
attempt
to
shift
responsibility for Michele Thein's death from a person who was
operating
after
.21),
the
to
driving
revocation
victim
prevented
(with
herself,
Balliette,
a
on
who
blood
alcohol
grounds
failed
tests, from avoiding the collision.
that
three
content
of
the
victim's
field
sobriety
This defense requires real
persuasion.
¶74
One jury already heard the argument that Thein's turn
signal may not have been activated.
Balliette's contention at
trial was that Thein was "driving erratically."
She allegedly
pulled to the right of her lane, thereby inviting Balliette to
pass, then braked so suddenly and turned so sharply that he
could not help running into her.
He now claims the State's
testimony,
left
that
Thein
would
have
skid
marks
had
she
operated her vehicle in that manner, could be rebutted by his
expert's assertion that Thein's vehicle had an antilock braking
system that did not leave traditional skid marks.
27
No.
¶75
The problem with Balliette's account is that evidence
of skid marks
defense.
2009AP472
from
Thein's
vehicle
would
have
benefited
his
The absence of skid marks from her vehicle may be
attributed to antilock brakes, but it can also be attributed to
Thein slowing down so that no braking on her part was necessary.
The absence of skid marks becomes important only if the factfinder accepts the drunk driver's version of the incident.
¶76
Balliette's Wis. Stat. § 974.06 motion reads in part:
He [Balliette] relied on his own testimony that Thein
had been driving erratically, slowing down and then
speeding up.
He stated that she had slowed down to
about 40 mph and pulled over towards the right side of
the road.
He took this action as a message from her
that he could pass and, as it was a legal passing
zone, he pulled out into the left lane. When he began
to pass, there was no turn signal and no brake lights.
He first saw brake lights when he was about 6 or 7 car
lengths behind her.
She braked real hard and turned
almost simultaneously, at which point he slammed on
the brakes, went into a skid, and hit her vehicle.
Balliette contended that the accident and Thein's
death occurred because she braked hard and turned left
in front of his vehicle without warning, not because
he was intoxicated.
He was the only witness in his
own behalf. (Emphasis added.)
¶77
This
account
is
different
from
the
statement
Balliette's counsel in this review:
Balliette provided a statement to one of the officers
at
the
scene.
In
the
statement,
Balliette
said . . . that he had been going about 58 miles per
hour when he came up behind Thein's car. He was about
five car lengths behind her when she slowed down to
about 40 miles per hour, at which point he decided to
pass her.
Balliette said that Thein did not have a
turn signal on, and as he tried to pass she "braked
real hard and turned left," and the vehicles collided.
(Emphasis added.)
28
of
No.
¶78
These
accounts
from
Balliette
are
not
2009AP472
consistent.
Especially coupled with the potential that any evidence about
the presence or absence of skid marks can cut both ways, this
inconsistency does not undermine confidence in the outcome of
the trial.
of
Rather, it reminds the court that judicial "scrutiny
counsel's
performance
must
Strickland, 466 U.S. at 689.
be
highly
deferential."
We presume, as we must, that
Attorneys Hunt and Musolf rendered adequate assistance within
See id. at 690.
the bounds of reasonable professional judgment.
Without providing adequate, specific allegations in his § 974.06
motion, Balliette cannot and does not overcome this presumption.
IV. CONCLUSION
¶79
We conclude that the defendant is not entitled to an
evidentiary
hearing
because
the
allegations
in
his
§ 974.06
motion do not provide sufficient material facts that, if proven,
demonstrate an entitlement to the relief sought.
His motion
focused
attention
on
the
conclusory
because
it
to
carefully
ineffective
failed
assistance
for
wrong
counsel;
address
it
the
postconviction
was
two
counsel
elements
of
set
in
out
Strickland; and it generally ignored the "five 'w's' and one
'h'" methodology outlined in John Allen, which guide the court
in meaningfully evaluating the claim.
The motions failed to say
who would be called as a witness at an evidentiary hearing and
what
this
testimony
was
likely
to
prove.
In
attempting
to
construct a better defense for a retrial, Balliette did not do
enough to show that a new trial was required.
29
No.
¶80
2009AP472
For the reasons stated, we reverse the decision of the
court of appeals.
By
the
Court.—The
decision
reversed.
30
of
the
court
of
appeals
is
No.
¶81
se,
ANN WALSH BRADLEY, J.
Balliette
filed
a
(dissenting).
16-page
motion
setting
2009AP472.awb
Proceeding pro
forth
detailed
facts in support of his motion alleging that his trial counsel
was constitutionally ineffective.
He likewise alleged that his
postconviction counsel was ineffective for failing to challenge
these aspects of trial counsel's performance.
¶82
It is essential to keep in mind that this case is not
about whether Balliette's motion is sufficient to entitle him to
a new trial.
No one asserts that it is.
Rather, the question
is whether Balliette's motion is sufficient to entitle him to an
evidentiary hearing, where he would have the opportunity to show
that his trial and postconviction attorneys rendered ineffective
assistance of counsel.
¶83
I agree with the majority that a defendant filing a
postconviction motion must demonstrate with some particularity
that he is entitled to relief.
I also agree that ineffective
assistance
counsel
of
postconviction
can
constitute
a
"sufficient reason" for overcoming the Escalona-Naranjo bar to
successive postconviction motions.1
116,
¶31
n.11,
McCaughtry,
205
284
Wis. 2d 111,
Wis. 2d 675,
See State v. Love, 2005 WI
700
678,
N.W.2d 62;
556
Rothering
N.W.2d 136
(Ct.
v.
App.
1996).
¶84
I part ways with the majority because, in determining
that Balliette's motion was insufficient, it appears to set up a
1
State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157
(1994).
1
No.
2009AP472.awb
series of uncertain pleading requirements that could ensnare pro
se petitioners and experienced appellate attorneys alike.
It
further fails to appreciate the role that an evidentiary hearing
plays
in
evaluating
whether
an
attorney's
performance
was
deficient.
¶85
Like the court of appeals, I conclude that Balliette
has alleged facts sufficient to entitle him to an evidentiary
hearing
on
his
claims
counsel ineffectiveness.
of
trial
counsel
and
postconviction
Accordingly, I respectfully dissent.
I
¶86
The
majority
acknowledges
that
the
Strickland
test
applies to both claims of ineffective assistance of counsel.2
Majority op., ¶28.
It does not appear to take issue with the
sufficiency of the facts Balliette set forth regarding trial
counsel's performance.
See id., ¶15.
Rather, it contends that
Balliette's motion "focused attention on the wrong counsel" and
failed to "carefully address the two elements of ineffective
assistance of counsel set out in Strickland[.]"
¶87
Id., ¶3.
Balliette identified several acts and omissions which
he asserts constitute deficient performance of trial counsel,
and he asserted that his postconviction counsel was ineffective
for failing to raise these issues.
contends
that
required[.]"
¶88
what,
"this
at
best,
only
part
of
what
is
Id., ¶65.
Under the majority's analysis, however, it is unclear
precisely,
2
is,
Nevertheless, the majority
is
required.
At
times,
the
insufficiency
Strickland v. Washington, 466 U.S. 668 (1984).
2
No.
2009AP472.awb
appears to be a failure to properly format his motion.
The
majority contends: "His legal attack would have required facts
presented in a 'five 'w's' and one 'h' format."
¶89
At
other
times,
it
appears
that
Id., ¶67.
the
insufficiency
might be failure to utter heretofore unknown magic words.
For
example, the majority says that "Balliette's motion does not
assert that the issues that [postconviction counsel] failed to
raise are obvious and very strong[.]"
¶90
At yet other times, the insufficiency appears to be
substantive.
to
"show
objective
Id., ¶69.
The majority contends that Balliette was required
that
failing
standard
to
of
raise
those
issues
reasonableness"
and
fell
below
"overcome
an
the
presumption that, under the circumstances, the challenged action
might be considered sound strategy."
¶91
It
is
unclear
under
Id., ¶67.
the
majority's
analysis
what,
precisely, would be enough to "show" within the four corners of
a
motion
standard
that
of
counsel's
performance
reasonableness.
Is
it
fell
below
enough
for
an
objective
Balliette
to
assert that he did not discuss the lack of expert testimony with
his
postconviction
postconviction
attorney
counsel
and
that
overlooked
it?
Balliette
Or,
can
believes
a
that
defendant
simply make allegations about what he thinks his attorney will
say at an evidentiary hearing?
Is it enough for the defendant
to assert that the attorney had no reasonable strategic reason
for failing to make a claim?
¶92
The
uncertain
pleading
requirements
set
by
the
majority are bound to baffle the bench and bar, not to mention
3
No.
pro
se
defendants,
who
postconviction motions.
are
the
typical
2009AP472.awb
drafters
of
I would not set so uncertain a bar.
II
¶93
To
the
extent
that
the
majority's
new
pleading
requirements are substantive and require movants to identify the
reasons underlying counsel's acts and omissions, see id., ¶68,
the majority fails to appreciate the role an evidentiary hearing
plays in the evaluation of an ineffective assistance of counsel
claim.
As the majority explains, "an act or omission that is
unprofessional in one case may be sound or even brilliant in
another."
Id.,
¶24.
attorney's
performance
"focus
counsel's
on
postconviction.
The
was
determination
deficient
perspective
at
of
requires
the
time
whether
the
the
court
to
of
trial"
or
State v. Foy, 206 Wis. 2d 629, 640, 557 N.W.2d
494 (Ct. App. 1996).
¶94
A defendant is typically not privy to the strategic
decisions made by counsel.
Accordingly, when a defendant makes
a colorable claim for ineffective assistance of counsel, the
circuit court should hold a Machner hearing.3
Machner
hearing
counsel's
is
alleged
for
the
deficiency
circuit
was
the
court
The purpose of a
to
result
gauge
of
whether
strategy
or
oversight.
¶95
testimony
This determination often cannot be made without the
of
counsel.
Without
counsel's
testimony,
a
court
cannot "focus on counsel's perspective" and "cannot otherwise
3
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App.
1979).
4
No.
determine
whether . . . counsel's
incompetence
Wis. 2d at
or
640;
deliberate
State
v.
actions
trial
were
2009AP472.awb
the
result
of
strategies."
206
92
Machner,
Foy,
804,
285
Wis. 2d 797,
N.W.2d 905 (Ct. App. 1979).
¶96
As
the
majority
acknowledges,
"[a]n
evidentiary
hearing is nothing more than an intermediate step toward[s]"
Balliette's objective, a new trial.
Majority op., ¶61.
"If the
motion contained all the proof necessary to show that he was
entitled
to
hearing."
to
contend
a
Id.
new
trial,
he
would
not
need
an
evidentiary
Hopefully, the majority opinion will not be read
that
a
defendant
must
supply
all
of
the
facts
necessary to prevail in obtaining a new trial as a prerequisite
to obtaining an evidentiary hearing.4
4
To the extent that the majority relies on federal habeas
cases as authority for its new pleading requirements, I conclude
that the majority errs.
The majority cites Murray v. Carrier, 477 U.S. 478 (1986)
and Smith v. Murray, 477 U.S. 527 (1986).
Majority op., ¶¶6566.
These cases address the cause and prejudice standards for
procedural default, a central principle of seeking a writ of
habeas corpus in a federal court. Before seeking federal habeas
relief, a defendant must exhaust all state remedies. Wainwright
v. Sykes, 433 U.S. 72 (1977). Federal courts will often decline
to hear habeas challenges if the issue was not "resolved on the
merits in the state proceeding due to respondent's failure to
raise them there as required by state procedure." Id. at 87.
The procedural default standard is based in part on
concerns for finality, a concern shared by state courts.
However, as importantly, the procedural default standard is
based on "the States' sovereign power to punish offenders and
their good-faith attempts to honor constitutional rights."
Murray v. Carrier, 477 U.S. at 487.
"The principle of comity
that underlies the exhaustion doctrine would be ill served by a
rule that allowed a federal district court to upset a state
court conviction without an opportunity to the state courts to
correct a constitutional violation[.]" Id. at 489.
5
No.
¶97
Such
a
standard
would
inconsequential formality.
render
a
2009AP472.awb
Machner
hearing
an
Further, it would be inconsistent
with Wis. Stat. § 974.06, which provides: "Unless the motion and
the files and records of the action conclusively show that the
person
is
entitled
to
no
Grant a prompt hearing."
relief,
the
court
shall: . . . (c)
Finally, such a standard is untenable
because it may bar meritorious claims whenever the defendant is
unable
to
secure
the
cooperation
of
trial
or
postconviction
counsel.
III
¶98
that
he
When I examine Balliette's 16-page motion, I conclude
set
forth
evidentiary hearing.
sufficient
facts
to
entitle
him
to
an
Among other claims, Balliette asserts that
his trial counsel was ineffective for failing to present the
testimony of an accident reconstruction expert, and that his
postconviction counsel was ineffective for failing to challenge
that omission on direct appeal.
¶99
from
the
The following facts and legal arguments are derived
motion.
At
trial,
Balliette
testified
that
the
accident resulted not from his intoxication or lack of care, but
rather, from Thein's operation of her own vehicle.
He testified
that Thein slowed down and pulled over toward the right side of
the road.
As Balliette was about to pass Thein, she abruptly
Borrowing from federal habeas standards to establish
procedural rules for state claims would undermine a key
rationale underlying the federal cause and prejudice standard——
that constitutional questions arising out of state criminal
proceedings should be resolved, when possible, in state courts.
6
No.
braked
and
turned
left
in
front
of
his
2009AP472.awb
truck.
Balliette
testified that he slammed on the brakes but was unable to stop
his truck before impact.5
¶100 Relying in part on the assumption that Thein's car did
not
have
anti-lock
brakes,
an
accident
reconstruction
expert
testifying for the State opined that Balliette's version of the
accident was "not possible," that it "can't physically happen,"
and it could not be reconciled with "the laws of physics."
The
expert testified: "[Balliette's version is] not possible on any
day of the week or any year.
It can't physically happen.
have to have the laws of physics.
¶101 Balliette's
trial
We
They don't change."
counsel
hired
an
expert,
but
rested the defense without presenting any expert testimony.
he
As
a result, the jury was left to determine which of two versions
of events was more credible——the unsupported testimony of the
defendant, who was intoxicated at the time of the accident and
clearly had a personal interest in the outcome of the trial, or
the testimony of the State's reconstruction expert, who said
that the defendant's version of events was "not possible on any
day
of
the
week
or
any
year."
Not
surprisingly,
the
jury
appears to have believed the State's expert.
¶102 After his conviction, Balliette hired his own accident
reconstruction expert, who
uncovered
5
evidence
undermining
the
Wisconsin Stat. § 940.09(2)(a) provides that a defendant
has an absolute defense to homicide by intoxicated use if the
jury determines by the preponderance of the evidence that the
death would have occurred even if the defendant had been
exercising due care and not under the influence of an
intoxicant. Wis. Stat. § 940.09(2)(a).
7
No.
expert opinion offered by the State.
2009AP472.awb
Among other revelations,
Balliette's expert determined that Thein's car did in fact have
anti-lock brakes.
¶103 In
asserted:
his
"The
motion
fact
for
that
postconviction
[Thein's
car]
relief,
had
Balliette
anti-lock
brakes
discredits the trial testimony of [the State's experts], which
had impeached
moments
Balliette's
before
the
testimony
collision,
regarding
and
renders
Thein's
their
actions
accident
reconstructions flawed."
¶104 Balliette further asserted that his trial attorney's
failure
to
present
an
deficient performance.
accident
reconstruction
expert
was
He contended that his trial attorney
"knew months before trial that he could not rely on the State's
witnesses to present Balliette's theory of defense, and that
without
presenting
[his]
own
accident
reconstruction
expert,
Balliette would be left to rely solely on his own testimony to
support his defense."
¶105 Balliette
contended
that
had
his
trial
attorney
presented the testimony of an accident reconstruction expert,
that
testimony
"would
have
given
the
jury
a
facts-based
reconstruction of the events prior to the collision that would
have countered the explanation given by the State."
He asserted
that this alternative testimony "would have given the jury the
means
to
form
a
reasonable
doubt
as
to
Balliette's
guilt."
Accordingly, had trial counsel presented the testimony of an
reconstruction expert, the jury would not have been presented
8
No.
2009AP472.awb
with uncontroverted expert testimony that Balliette's version of
events was contrary to "the laws of physics."
¶106 Because no Machner hearing was conducted regarding the
claims that Balliette now raises, I do not know why Balliette's
attorney declined to present the testimony of a reconstruction
expert.
Neither does the majority.
It might be that the trial
attorney made a reasonable strategic choice, or it may be that
Balliette's trial attorney was asleep at the switch.
Likewise,
without the benefit of a Machner hearing regarding these claims,
no member of this court knows why Balliette's postconviction
attorney failed to raise the trial attorney's failure to present
an accident reconstruction expert.
¶107 If the facts asserted in Balliette's motion are true,
however, it is difficult to imagine that his trial attorney had
a sound
strategic reason
for
failing
accident reconstruction expert.
to
counter the
State's
Rather, it is more likely that
his trial attorney failed to conduct a reasonable investigation
and
uncover
the
flaw
in
the
expert
opinion
offered
by
the
State-that it was based on the erroneous conclusion that Thein's
car did not have anti-lock brakes.
¶108 It is likewise difficult to have confidence that the
jury would have reached the same verdict if the flaws in the
expert opinion offered by the State had been exposed.
facts
asserted
in
Balliette's
motion
are
true,
a
If the
court
may
conclude that there is "a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
9
No.
would have been different."
2009AP472.awb
Strickland v. Washington, 466 U.S.
668, 694 (1984).
¶109 Finally, if the facts Balliette asserts are true, then
it is difficult to imagine that his postconviction counsel made
a sound strategic decision to forego this claim of ineffective
assistance of counsel on appeal.
Like the court of appeals, I
conclude without reservation that Balliette's 16-page motion is
sufficient to overcome the Escalona-Naranjo bar and entitle him
to
a
Machner
hearing
where
his
claims
can
be
tested.
Accordingly, I respectfully dissent.
¶110 I am authorized to state that Chief Justice SHIRLEY S.
ABRAHAMSON joins this dissent.
10
No.
1
2009AP472.awb
]]>
