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COURT OF APPEALS DECISION DATED AND FILED April 17, 2008 David R. Schanker Clerk of Court of Appeals |
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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 |
IN COURT OF APPEALS |
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DISTRICT IV |
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State of
Plaintiff-Respondent, v. Marcus E. Sturdevant,
Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Higginbotham, P.J., Lundsten and Bridge, JJ.
¶1 PER CURIAM. Marcus Sturdevant appeals from an order denying his postconviction motion alleging ineffective assistance of counsel. We affirm.
¶2 Sturdevant pled no contest in 1994 to three counts of first-degree sexual assault of a child. In June 2006 he moved to withdraw his pleas on the ground that he had not been informed that one consequence of the pleas was that he would be ordered to pay a $50 annual sex offender registration fee. Although Sturdevant did not cite the statute, that was essentially a postconviction motion under Wis. Stat. § 974.06 (2005-06).[1] The circuit court denied that motion. Sturdevant then filed a “motion for a Machner hearing based on ineffective assistance of counsel.” Although Sturdevant again did not cite § 974.06, this was also a motion under that statute.
¶3 The State argues that Sturdevant’s second postconviction
motion was barred by Wis. Stat. § 974.06(4) because Sturdevant
did not give a sufficient reason why he did not raise these claims in his prior
motion under § 974.06. We agree.
A defendant cannot properly file a second § 974.06 motion unless he shows a sufficient reason for not
having raised the new claims in the first motion. State ex rel. Dismuke v. Kolb, 149
¶4 Even if the motion was not procedurally barred, we further
conclude that it could properly be denied on the merits without an evidentiary
hearing. The circuit court denied the
motion without holding an evidentiary hearing, on the ground that the motion failed
to allege facts which, if true, would entitle Sturdevant to relief. The State erroneously asserts that we defer
to that decision because it is a discretionary one. For that proposition the State cites State
v. Allen, 2004 WI 106, ¶¶9,
12, 274 Wis. 2d 568, 682 N.W.2d 433.
However, that paragraph states:
“First, we determine whether the motion on its face alleges sufficient
material facts that, if true, would entitle the defendant to relief. This is a question of law that we review de
novo. If the motion raises such facts,
the circuit court must hold an evidentiary hearing.”
¶5 Sturdevant’s motion in this case made very few factual assertions. Instead, it contained general statements of
relevant law, and a series of questions, apparently directed toward trial
counsel. Some of the questions could
arguably be read as implying an allegation of certain facts, such as, “Why did
you not show me a copy of the hospital records?” However, even if we view the motion in that
light, we conclude that it fails to allege sufficient facts to warrant a
hearing on the issue of ineffective assistance of counsel. There are not sufficient facts from which a
clear allegation of deficient performance by counsel can be read, or an
explanation of how counsel’s acts prejudiced Sturdevant. See Strickland
v. Washington, 466 U.S. 668,
687 (1984) (to establish ineffective assistance of counsel a defendant must
show that counsel’s performance was deficient and that such performance
prejudiced his defense).
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.