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COURT OF APPEALS
DECISION
DATED AND FILED
July 29, 2008
David R. Schanker
Clerk of Court of Appeals
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NOTICE
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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.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Denell Jackson,
Defendant-Appellant.
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APPEAL
from an order of the circuit court for Milwaukee County: jeffrey
a. conen, Judge. Affirmed.
Before Curley, P.J., Fine and Kessler, JJ.
¶1 PER CURIAM. Denell Jackson appeals from the
order denying his motion for postconviction relief. He argues that he received ineffective
assistance of postconviction counsel, and that the circuit court erred when it
denied his postconviction motion without holding a hearing. Because we conclude that the circuit court did
not err, we affirm the order.
¶2 Jackson
pled guilty to four counts of first-degree sexual assault of a child and one
count of incest with a child. The court
sentenced him to thirty years of confinement on one of the sexual assault
counts, and a total of forty-five years of initial confinement and twelve years
of extended supervision, to be served consecutively, on the remaining
counts. His appointed appellate counsel
filed a no-merit report, Jackson
filed a response, and we affirmed. See State
v. Jackson, No. 2004AP818-CRNM, unpublished slip op. (WI App Jan. 10,
2006).
¶3 Jackson, acting pro se,
subsequently filed a motion for postconviction relief asserting that he
received ineffective assistance of postconviction counsel because counsel did
not raise ineffectiveness of trial counsel.
He specifically alleged that his trial counsel was ineffective because
trial counsel did not move to suppress statements Jackson made to the police, and because trial
counsel did not interview witnesses who would have established that one of the
child victims was coerced into giving evidence against him. He also alleged that he had newly discovered
evidence because his daughter, one of the victims, had recanted. The circuit court denied the motion without
holding a hearing.
¶4 To establish an ineffective assistance of counsel claim, a
defendant must show both that counsel’s performance was deficient and that he
was prejudiced by the deficient performance.
Strickland v. Washington, 466 U.S. 668, 687 (1984); State ex rel. Flores v. State,
183 Wis. 2d
587, 619–620, 516 N.W.2d 362 (1994). A
reviewing court may dispose of a claim of ineffective assistance of counsel on
either ground. Strickland, 466 U.S. at 697. If this court concludes that the defendant has
failed to prove one prong, we need not address the other prong. Id. To demonstrate prejudice, “[t]he defendant
must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id.
at 694. A reasonable probability is one
sufficient to undermine confidence in the outcome. Id. “In determining whether there was any act or
omission which would constitute deficient performance, the standard is one of
reasonable professional judgment or reasonable professional conduct.” Flores, 183 Wis. 2d at 620. Counsel is not ineffective for failing to
make meritless arguments. State
v. Toliver, 187 Wis. 2d
346, 360, 523 N.W.2d 113 (Ct. App. 1994).
When a defendant files a postconviction motion making allegations that,
if true, would require relief, the trial court must hold an evidentiary
hearing. State v. Bentley, 201 Wis. 2d 303, 310,
548 N.W.2d 50 (1996).
“[I]f the defendant fails to allege sufficient facts in
his motion to raise a question of fact, or presents only conclusory allegations,
or if the record conclusively demonstrates that the defendant is not entitled
to relief, the trial court may in the exercise of its legal discretion deny the
motion without a hearing.”
Id.
at 309–310 (quoting Nelson v. State, 54 Wis. 2d
489, 497–498, 195 N.W.2d 629 (1972)). We
will reverse the trial court’s discretionary decision to deny an evidentiary
hearing only for an erroneous exercise of discretion. Id.
at 311.
¶5 Jackson first argues that
his postconviction counsel should have argued that trial counsel was
ineffective for failing to move to suppress the statements he made to the
police. He further alleges that if his
trial counsel had conducted a proper investigation, including reading police reports
and interviewing witnesses, she would have moved to suppress his statements and
would not have advised him to accept the plea offer. A knowing and voluntary guilty plea waives
all defects leading up to the plea, except jurisdictional defects. State v. Bangert, 131 Wis. 2d 246, 293,
389 N.W.2d 12 (1986). By entering a
guilty plea, Jackson
waived his right to challenge trial counsel’s performance on the suppression
issue. Even if Jackson
had not waived the issue, however, the circuit court found that a motion to
suppress his statements would not have been successful because Jackson had indicated by his signature and
initials on the statements, that he had been read his Miranda rights prior to
giving the statements.
We agree with the circuit court’s
conclusion that under these circumstances, trial counsel was not ineffective
for failing to move to suppress the statements.
¶6 Jackson also alleges that
his trial counsel was ineffective for failing to interview certain witnesses
who would have established that one of the victims was coerced into making
statements against him. The circuit
court found that his allegations of ineffective assistance of trial counsel on
this basis were “factually inadequate” to establish the claim. We agree with the circuit court that Jackson has stated only
conclusory allegations that he received ineffective assistance of trial
counsel. Since he has not established
that his claim against trial counsel had merit, then his postconviction counsel
was not ineffective for failing to raise it.
¶7 Jackson
also asserts that he is entitled to withdraw his plea on the basis that one of
the victims had recanted.
After sentencing, a defendant
who seeks to withdraw a guilty or no contest plea carries the heavy burden of
establishing, by clear and convincing evidence, that withdrawal of the plea is
necessary to correct a manifest injustice. The withdrawal of a plea under the manifest
injustice standard rests in the circuit court’s discretion. We will only reverse if the circuit court has
failed to properly exercise its discretion. An exercise of discretion based on an
erroneous application of the law is an erroneous exercise of discretion.
Newly discovered evidence may
be sufficient to establish that a manifest injustice has occurred. For newly discovered evidence to constitute a
manifest injustice and warrant the withdrawal of a plea the following criteria
must be met. First, the 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. 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. Finally,
when the newly discovered evidence is a witness’s recantation, we have stated
that the recantation must be corroborated by other newly discovered evidence.
State v. McCallum, 208 Wis. 2d 463, 473–474,
561 N.W.2d 707 (1997) (citations omitted).
¶8 In this case, the circuit court denied Jackson’s motion based on the victim’s
recantation because the recantation was not corroborated by other newly
discovered evidence, and was contradicted by existing evidence. The record supports the circuit court’s
decision. We conclude that the circuit
court did not err when it denied Jackson’s
motion for postconviction relief without holding a hearing. For the reasons stated, we affirm the order
of the circuit court.
By the
Court.—Order affirmed.
This opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5. (2005–06).