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COURT OF APPEALS
DECISION
DATED AND FILED
October 21, 2010
A.
John Voelker
Acting 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 IV
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State of Wisconsin,
Plaintiff-Respondent,
v.
Casey L. Walker,
Defendant-Appellant.
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APPEAL
from an order of the circuit court for Dodge County: John
R. Storck, Judge. Affirmed.
Before
Vergeront, P.J., Sherman
and Blanchard, JJ.
¶1 PER CURIAM. Casey L. Walker appeals from an
order denying his postconviction motion, contending that the circuit court
erred in denying his motion without a hearing.
We conclude that Walker’s
motion was not sufficient to entitle him to a hearing, and we affirm.
BACKGROUND
¶2 In December 2007, Walker
was charged with three counts of delivery of cocaine, contrary to Wis. Stat. § 961.41(1) (2007-08). The supporting police reports indicate that
police officers conducted three controlled buys of cocaine from Walker, while equipped
with audio recording devices.
¶3 The State Public Defender’s Office appointed Attorney David
Westrick to represent Walker after Walker’s prior public defender moved to withdraw on Walker’s request. On March 26, 2009, Walker
and the State submitted a stipulation to the circuit court, stating that Walker would plead no
contest to one count of delivery of cocaine as a subsequent offense, and the
other counts would be dismissed and read in.
The stipulation also stated that Walker
and the State jointly recommended ten and one-half years of incarceration, with
five and one-half years of initial confinement and five years of extended
supervision, to be served consecutively to any other sentence Walker was then serving. The State, Walker, and Attorney Westrick all signed the
form. Walker attested that he read the stipulation
and discussed it with his attorney, and understood its terms. Attorney Westrick attested that he explained
the stipulation to Walker
and believed he understood it. Walker pled no contest to
one count of delivery of cocaine as a subsequent offense, and the court entered
a judgment of conviction. The court
sentenced Walker
according to the terms of the stipulation and joint recommendation.
¶4 On November 5, 2009, Walker
filed a pro se Wis. Stat. § 974.06
motion for postconviction relief. Walker asserted that he
was denied his constitutional right to the effective assistance of counsel
during the plea proceedings and at sentencing.
He alleged that both of his attorneys were ineffective for failing to
allow him to listen to the audio recordings of the drug transactions that both
attorneys had obtained. He alleged that
Attorney Westrick informed Walker that the voice
on the recording did not sound like Walker,
and that if Attorney Westrick had allowed him to listen to the tapes he would
have pursued trial rather than pleading no-contest. Walker
also alleged that Attorney Westrick pressured him into entering the plea by agreeing
to a plea hearing court date without his knowledge, after he informed Westrick
he would not enter a plea if it involved a recommendation for a sentence to run
consecutive to the sentence he was serving.
Finally, he alleged that Attorney Westrick did not provide him effective
assistance of counsel at sentencing because Westrick did not argue for the
sentence in this case to run concurrently with the sentence he was then
serving. The circuit court denied Walker’s motion without a
hearing. Walker appeals.
DISCUSSION
¶5 A defendant is entitled to an evidentiary hearing on a
postconviction motion only if the motion alleges facts that, if true, would
entitle the defendant to relief. See State v.
Bentley, 201 Wis. 2d 303, 309-10,
548 N.W.2d 50 (1996) (quoting Nelson v. State, 54 Wis. 2d
489, 497-98, 195 N.W.2d 629 (1972)).
A circuit court may, in its discretion, deny a postconviction motion
without a hearing if the motion does not raise a question of fact or presents
only conclusory allegations, or if the record conclusively demonstrates that
the defendant is not entitled to relief.
See Bentley, 201 Wis.
2d at 309-10. Thus, a defendant
must demonstrate in a postconviction motion that there is a sufficient reason
to conduct an evidentiary hearing. See
State v. Washington, 176 Wis.
2d 205, 216, 500 N.W.2d 331 (Ct. App. 1993) (“[T]he motion must contain
at least enough facts to lead the trial court to conclude that an evidentiary
hearing is necessary.”). When the claim
is ineffective assistance of counsel, the motion must allege facts that show
counsel’s performance was deficient and that the deficient performance
prejudiced the defendant. Strickland
v. Washington, 466 U.S. 668, 687 (1984).
¶6 Whether
a postconviction motion sufficiently alleges facts to entitle a defendant to a
hearing is a question of law, which we review independently. See
Bentley,
201 Wis. 2d
at 310.
¶7 Walker
contends that his postconviction motion alleged facts that entitled him to a
hearing. The State responds that Walker has not sufficiently alleged
ineffective assistance of counsel to entitle him to a hearing because he merely
alleges in a conclusory fashion that he would have gone to trial if his counsel
had allowed him to listen to the audio recordings of the drug transactions.
¶8 We
conclude that Walker’s
postconviction motion does not allege facts sufficient to entitle him to a
hearing on his claim of ineffective assistance of counsel. See Bentley, 201 Wis. 2d at 309-10.
¶9 Walker first asserts that
if he had listened to the audio recordings of the drug transactions he would
have gone to trial. However, he does not
explain in the motion what he might have heard that could have carried more
weight than the testimony of the police officers who identified Walker as the seller in
the controlled buys. He also does not
explain why he would have decided to go to trial after listening to the tapes
himself, but did not decide to do so after, according to his assertion,
Attorney Westrick informed him that the voice on the tapes did not sound like Walker.
¶10 Next, Walker
contends that trial counsel was ineffective during the plea proceedings. He asserts that Attorney Westrick agreed to
the court’s scheduling of the plea hearing without his knowledge and then told
him that the State would pursue the maximum sentence if Walker did not agree to the plea
agreement. These facts do not rise to
the level of ineffective assistance of counsel, which requires a showing that
counsel’s performance was deficient, that is, that counsel’s performance fell
outside “the wide range of reasonable
professional assistance.” See Strickland, 466 U.S. at 689.
¶11 Walker’s
final claim of ineffective assistance of counsel is that Attorney Westrick
failed to argue for a concurrent sentence.
However, the record establishes that Walker
entered a joint recommendation for a consecutive sentence, and there is
therefore no basis in the record to entitle Walker to a hearing on whether his counsel
was ineffective for failing to then argue for a concurrent sentence.
¶12 Walker also asserts that the circuit court erroneously
exercised its discretion in failing to address separately each of the issues he
raised in his postconviction motion, relying on Smith v. State, 60 Wis.
2d 373, 385, 210 N.W.2d 678 (1973) (where postconviction motion sets forth
several grounds for relief, circuit court is to address each separately in
denying motion without a hearing).
Specifically, he contends that reversal is necessary because the circuit
court did not separately address his claim that trial counsel was ineffective
at sentencing. However, we independently
review a postconviction motion to determine whether the defendant has
established that he or she is entitled to a hearing on the motion. See Bentley, 201 Wis.
2d at 310. Therefore, the circuit
court’s detail of analysis is not relevant to our review. As we
explained above, we have concluded on our own review that Walker’s motion is not sufficient to entitle
him to a hearing on any of his claims.
¶13 Finally, Walker
contends that the sentencing transcript he obtained from the prison records was
incomplete, denying him his right to appeal.
He cites State v. Perry, 136 Wis.
2d 92, 401 N.W.2d 748 (1987), and Wis.
Stat. § 973.08 as establishing that the clerk of the circuit court
is responsible for sending this court a complete transcript of all of the
proceedings in this case. We reject this
argument for three reasons. First, in Perry,
the issue was that the defendant was unable to obtain a complete transcript
because portions of the court reporter’s notes were missing; the issue was not
whether the clerk of the circuit court had the responsibility to obtain the
transcripts for the defendant. Second,
§ 973.08(2) requires the filing of the sentencing portion of a prisoner’s
transcript with the prison; it does not entitle the prisoner to that transcript
or to any other transcript on appeal. Third,
our rules make clear that it is the defendant’s responsibility to obtain all
transcripts necessary for an appeal. See Wis.
Stat. Rule 809.11(4). We note
that, in this case, Walker
filed a statement on transcript stating that no transcripts are necessary for
this appeal. If Walker believed additional transcripts were
necessary for this appeal, it was his responsibility to obtain them. See
Wis. Stat. Rule 809.11(4).
By the Court.—Order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.