|
COURT OF APPEALS DECISION DATED AND RELEASED May 14, 1996 |
NOTICE |
|
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1980-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DANTE BOSTON,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: PATRICIA D. McMAHON, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Fine, JJ.
PER
CURIAM. Dante Boston appeals from a judgment of conviction for
first-degree reckless homicide while armed, party to a crime. See §§ 940.02(1), 939.63, and
939.05, Stats. Boston also appeals from an order denying
his post‑conviction motion.
Boston claims that the trial court erred in not holding a Miranda-Goodchild
hearing to determine the voluntariness of his statement and to establish
whether his Miranda rights were given.[1] He also claims that the trial court erred in
not holding a Machner hearing to determine whether defense
counsel was ineffective.[2] We affirm.
Boston was charged with
first-degree reckless homicide while armed, party to a crime, based upon his
role in the death of Sam Baker. After
his arrest, Boston made a statement to the police that implicated himself in
the crime. Before trial, no written
motions were filed challenging the admissibility of this statement. During trial, however, defense counsel
requested a Miranda-Goodchild hearing to determine the
voluntariness of the statement. The
trial court denied Boston's request for a Miranda-Goodchild
hearing. Boston was found guilty of the
crime charged. Boston filed a
post-conviction motion challenging defense counsel's effectiveness. The motion was denied without a hearing.
First, Boston alleges
that the trial court erred in not holding a mid‑trial Miranda-Goodchild
hearing to determine the voluntariness of his statement made to the police, and
to establish whether the Miranda warnings were given to him. “[U]nless the defendant challenges the
voluntariness of the statements he made or that he was not advised of his Miranda
rights, the trial court is under no obligation to hold an evidentiary hearing
outside the presence of the jury.” State
v. Monje, 109 Wis.2d 138, 149, 325 N.W.2d 695, 701 (1982). At trial, Boston conceded that he received
complete Miranda warnings and did not dispute the voluntariness
of his statement to the police. Further, he did not allege sufficient facts to
raise a question of fact regarding the need for a Miranda-Goodchild
hearing. See id. The trial court did not err in refusing to
hold a mid-trial Miranda-Goodchild hearing.
Next, Boston alleges
that the trial court erroneously denied his claim of ineffective assistance of
counsel without holding a Machner hearing. To establish ineffective assistance of
counsel, a defendant must show both that counsel's performance was deficient
and also that this deficient performance was prejudicial. Strickland v. Washington, 466
U.S. 668, 687 (1984).
Normally, a
post-conviction challenge to the effectiveness of trial counsel requires an evidentiary
hearing at which counsel testifies regarding the defendant's assertions of
deficient performance. State v.
Machner, 92 Wis.2d 797, 804, 285 N.W.2d 905, 908 (Ct. App. 1979). If a post-conviction motion alleges facts
that, if true, would entitle the defendant to relief on his claim of
ineffective assistance, the trial court must hold a Machner
hearing. State v. Toliver,
187 Wis.2d 346, 360, 523 N.W.2d 113, 118 (Ct. App. 1994). Conclusory allegations of ineffective
assistance unsupported by factual assertions, however, are legally insufficient
to compel a Machner hearing.
Id.
Boston's post-conviction
motion failed to allege sufficient facts to support a claim of ineffective
assistance of counsel. His motion
merely claims that trial counsel was ineffective because counsel did not object
to the trial court's refusal to hold a Miranda-Goodchild
hearing. The trial court determined
that this did not justify a post-conviction hearing. We agree. Boston failed
to allege sufficient facts to raise a question of fact regarding prejudice,
specifically why “the results of the proceeding would be different,” Strickland,
466 U.S. at 694, had counsel objected to the trial court's refusal to hold a Miranda-Goodchild
hearing. The trial court correctly
denied Boston's motion without a Machner hearing.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.