State v. Lavell James Cammon

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 29, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal Nos. 2018AP1336-CR Cir. Ct. Nos. 2014CF2809
2014CF5487
2018AP1337-CR

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

LAVELL JAMES CAMMON,

DEFENDANT-APPELLANT.

APPEALS from judgments and orders of the circuit court for
Milwaukee County: MEL FLANAGAN and CYNTHIA MAE DAVIS, Judges.
Judgment modified and, as modified, affirmed; judgment affirmed; orders
affirmed.

Before Brash, P.J., Kloppenburg and Dugan, JJ.
Nos. 2018AP1336-CR
2018AP1337-CR

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Lavell James Cammon appeals from the judgments
of conviction, following his guilty pleas to one count of false imprisonment, as a
domestic abuser, as a repeater in Milwaukee County case No. 2014CF2809;1 and
one count of felony intimidation of a victim, as a party to a crime, as a domestic
abuser in Milwaukee County case No. 2014CF5487. He also appeals the orders
denying his postconviction motions.2

¶2 Cammon argues that, because he was misinformed about the
maximum penalties associated with both charges to which he pled guilty, his pleas
were not knowing, intelligent, and voluntary and, therefore, the postconviction
court erred in denying his motion to withdraw his pleas. He also argues that trial

1
Cammon entered pleas to both charges as a repeater. However, at sentencing, the
parties agreed that the repeater enhancer did not apply to either charge. The trial court then stated
that the judgment of conviction in Milwaukee County case No. 2014CF2809 (the first case that
the State brought against Cammon) needed to be amended to remove the repeater allegation.

However, contrary to the trial court’s oral pronouncement, the judgment in case
No. 2014CF2809, cites the repeater statute and includes the phrase “[r]epeater.” We direct the
trial court to correct this scrivener’s error in that judgment of conviction in the first case upon
remittitur. See State v. Prihoda, 2000 WI 123, ¶29, 239 Wis. 2d 244, 618 N.W.2d 857 (stating
“In Wisconsin, an unambiguous oral pronouncement of sentence controls over a written judgment
of conviction”).
2
The judgments and orders involved in this appeal were entered in two cases that the
trial court consolidated for trial. The first case filed against Cammon, case No. 2014CF2809, is
appellate case No. 2018AP1336. The second case against Cammon, Milwaukee County case
No. 2014CF5487, is appellate case No. 2018AP1337. Two Milwaukee County Circuit Court
judges presided over the consolidated cases. The Honorable Mel Flanagan presided over the
cases through sentencing and the Honorable Cynthia Mae Davis presided over the postconviction
proceedings. We refer to Judge Flanagan as the trial court and Judge Davis as the postconviction
court.

On August 21, 2018, we granted Cammon’s motion to consolidate the appeals.

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counsel was constitutionally ineffective because (1) trial counsel failed to
accurately inform him of the maximum penalties associated with each charge; and
(2) prior to sentencing, trial counsel did not request additional time to confer with
him to determine if he wanted to withdraw his pleas. We are not persuaded.

¶3 We modify the judgment in the first case, affirm both that judgment
as modified and the judgment in the second case, and affirm the postconviction
court’s orders.

BACKGROUND

The first case—case No. 2014CF2809—false imprisonment

¶4 The morning of June 26, 2014, began with Cammon calling T.K., his
long time girlfriend with whom he had two children and was expecting a third, a
“Bitch” and stating, “[W]hy did you leave the room, I told you [that] you are not
to leave without my permission.” Cammon then hit T.K.’s back and the back of
her head five or six times. Cammon also threatened to kill T.K. and the children
saying, “I told you bitch, I’m going to buy my heat on Friday when I get my check
and I’m going to kill yo[ur] ass, I’ll kill you and these mutha fucken [sic] kids
bitch” (third set of brackets added). This was not an isolated incident. T.K. told
the police that every night Cammon taped the windows or placed towels on them,
he taped their bedroom door so he could check whether she had attempted to leave
the room, and he usually brought screwdrivers or knives into their bed and
threatened her with them.

¶5 The State filed a five count criminal complaint on June 30, 2014,
charging Cammon with the following crimes against T.K.: (1) felony intimidation
of a victim, as an act of domestic abuse, as a repeater; (2) false imprisonment, as

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an act of domestic abuse, as a repeater; (3) felony intimidation of a victim, as an
act of domestic abuse; (4) misdemeanor battery, as an act of domestic abuse; and
(5) disorderly conduct, as an act of domestic abuse.3 The repeater allegations
relied on Cammon’s May 2007 conviction for being a felon in possession of a
firearm. Cammon was released from prison for that conviction on March 31,
2009. A certified copy of the judgment of conviction was attached to the
complaint.

¶6 Count three, felony intimidation of a victim as an act of domestic
abuse, was dismissed at Cammon’s initial appearance.4

The second case—case No. 2014CF5487—witness intimidation

¶7 While Cammon was in jail on the first case awaiting trial, he made at
least seven telephone calls to his mother and aunt, instructing them how to
discourage T.K. from cooperating with the prosecution. The State filed a criminal
complaint on December 10, 2014, charging Cammon with one count of felony
intimidation of a victim, as a party to a crime, as an act of domestic abuse.

Trial court proceedings

¶8 At a December 19, 2014 hearing, the trial court found that probable
cause supported the intimidation of a witness charge in the second case, and

3
The allegations of the first count were based on a December 28, 2013 incident, and the
allegations of the four remaining counts were based on the June 26, 2014 incident.
4
The dismissed count was subsequently included in an information filed in the first case;
however, at a July 29, 2014 hearing, the trial court granted trial counsel’s oral motion to dismiss
the count, without objection from the State.

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granted the State’s request to consolidate the two cases for trial. The State then
filed an information adding the repeater penalty enhancer to the second case.

¶9 On the first day of the trial, March 16, 2015, the trial court started
jury selection. On March 17, 2015, before the jury selection resumed, the parties
advised the trial court that they had reached a plea agreement. After the
prosecutor described the plea agreement terms, the trial court followed with a
lengthy plea colloquy which included asking Cammon if (1) he agreed with
prosecutor’s description of the plea agreement; (2) he had sufficient time to talk to
trial counsel; (3) trial counsel had discussed with him the plea questionnaire and
waiver of rights forms,5 the charges, and the elements of the offenses; (4) he
understood the elements of the offenses and what he was admitting by pleading
guilty; and (5) if anyone had made any promises to him to induce his pleas, other
than those in the plea agreement, and if he was voluntarily admitting the charges.

¶10 The trial court explained the two charges to which Cammon was
pleading guilty; the factual basis for those charges; and the penalties for the false
imprisonment charge, which was “a fine of up to $10,000 and incarceration for up
to ten years or both,” and the witness intimidation charge, which was “a fine of not
more than $25,000 and imprisonment for not more than [fourteen] years.” The
trial court also asked Cammon if he understood that the dismissed charges would
be read in and considered at sentencing. Cammon responded, “Yes.” The trial

5
The plea questionnaire and waiver of rights forms signed by Cammon state that
Cammon understood and had reviewed with trial counsel the “entire document and any
attachments,” and understood that the trial judge could impose the maximum penalty. The form
in the first case states that the maximum penalty was six years in prison and/or a $10,000 fine,
and that the repeater added four years. The form in the second case states that the maximum
penalty was ten years in prison and that the repeater added four years.

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court next asked Cammon if the facts in the false imprisonment charge were
correct and Cammon denied them. The trial court then directed the court staff to
bring the jurors into the courtroom so that jury selection could continue.

¶11 Meanwhile, Cammon conferred with trial counsel and, before the
jurors arrived at the courtroom, Cammon agreed to the facts alleged in the
complaints for the charges of false imprisonment, as an act of domestic abuse, as a
repeater; and the charge of witness intimidation, as a party to a crime, as an act of
domestic abuse, as a repeater. The trial court then asked Cammon whether he
understood that each party could recommend the sentence to be imposed, and that
the trial court would impose the sentence it believed appropriate, which could be
the maximum sentence. Cammon responded, “Yes.” The trial court found that
Cammon’s guilty pleas had been entered freely, voluntarily, and intelligently and
accepted his guilty pleas.

¶12 Subsequently, Cammon wrote a letter to the trial judge indicating
that the repeater enhancers could not be applied in his cases because more than
five years passed since his June 2014 arrest for the current offenses and his
March 31, 2009 prison release for his most recent prior offense. Cammon was
correct but for the wrong reason.6

6
Cammon’s letter refers to his April 3, 2007 arrest for the prior felony offense.
However, as relevant here, the five-year period is calculated from the date of the prior felony
conviction to the date of the commission of the current offense. See State v. Farr, 119 Wis. 2d
651, 657, 350 N.W.2d 640 (1984) (stating that “[i]n analyzing the five-year period for the
application of the repeater statute, [WIS. STAT. §] 939.62(2) [1981-82], requires that the
conviction of the earlier felony be considered and compared to the commission date of the present
crime for which he is being sentenced”). At sentencing and on appeal, the State agreed that the
repeater enhancers do not apply because Cammon’s prior felony conviction occurred more than
five years before the dates that he committed the two crimes to which he pled guilty.

(continued)

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¶13 As noted, at the June 3, 2015 sentencing hearing, the prosecutor and
trial counsel agreed that Cammon could not be convicted as a repeater for either
offense. The trial court then stated, “So we need to amend the judgment of
conviction [so] that it’s not a repeater.” The prosecutor also stated that, although
the enhancer did not apply to Cammon, the presentence investigation report listed
the correct maximum penalties that Cammon faced without the repeater enhancers.

¶14 The prosecutor recommended eight years of initial confinement,
followed by eight years of extended supervision. Trial counsel recommended
eighteen to twenty-four months of initial confinement, followed by an unspecified
period of extended supervision.

¶15 When Cammon addressed the trial court, he apologized to T.K., his
family, and the court. Cammon stated that he took “full responsibility” for his
actions, but he also denied falsely imprisoning T.K., stating that he never held
T.K. against her will. When questioned by the trial court, Cammon could not
explain why, despite entering guilty pleas to the offense, he was saying that he had
not committed them. The trial court questioned Cammon’s credibility because
what he said differed from day to day. Cammon did not move to withdraw his
pleas at that time.

¶16 After explaining its reasoning, the trial court imposed a global
sentence of eight years of initial confinement followed by eight years of extended
supervision. Cammon interjected, “Eight years. You gave me eight years for
something I didn’t do.” Cammon then became loud, disruptive, threatening, and

All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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profane. Although the sentencing was incomplete, Cammon was removed from
the courtroom. The following week, the trial court reconvened the sentencing,
with Cammon appearing by video conference. After the trial court finished the
sentencing, Cammon asked the trial court, “How would it be possible for me to
withdraw the plea after being sentenced?” The trial court responded that Cammon
should talk to his trial counsel. Judgments were entered in both cases on June 11,
2015.

Postconviction proceedings

¶17 Cammon filed postconviction motions, raising the same claims that
he raises on appeal. The postconviction court denied the motions, without a
hearing. This appeal follows.

DISCUSSION

¶18 Cammon argues that because the repeater enhancers did not apply to
him on either charge, the trial court misstated the maximum penalty on each
charge. He then argues that the trial court’s misstatement of the penalty for each
charge was substantial and, as a result, the postconviction court erroneously
concluded that his pleas were voluntarily entered. He also argues that trial counsel
was constitutionally ineffective because (1) trial counsel misstated the maximum
penalty associated with each charge; and (2) trial counsel did not request
additional time to confer with him to determine if he wanted to withdraw his pleas
in light of the misstatement of the maximum penalties, and to explain the
differences in the legal standards for withdrawing a plea prior to sentencing versus
after sentencing.

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I. Cammon failed to show that the trial court
committed a Bangert7 violation during his plea

¶19 This case raises the threshold question of how to analyze a claim for
plea withdrawal when a defendant was informed that his maximum punishment
was higher, but not substantially higher, than the law actually authorized. Our
supreme court addressed that question in State v. Cross, 2010 WI 70, 326 Wis. 2d
492, 786 N.W.2d 64. We first review the analytical framework set forth in Cross,
and next apply that analytical framework to the facts in this case and conclude that
Cammon is not entitled to withdraw his plea.

The applicable law and the standard of review involving
plea withdrawal

¶20 As explained in State v. Brown, Cammon has the following burden
of proof on his motion to withdraw his pleas:

When a defendant seeks to withdraw a guilty plea
after sentencing, he must prove, by clear and convincing
evidence, that a refusal to allow withdrawal of the plea
would result in “manifest injustice.” One way for a
defendant to meet this burden is to show that he did not
knowingly, intelligently, and voluntarily enter the plea.

When a guilty plea is not knowing, intelligent, and
voluntary, a defendant is entitled to withdraw the plea as a
matter of right because such a plea “violates fundamental
due process.”

See id., 2006 WI 100, ¶¶18-19, 293 Wis. 2d 594, 716 N.W.2d 906 (citations
omitted).

7
State v. Bangert, 131 Wis. 2d 246, 261-62, 389 N.W.2d 12 (1986).

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¶21 Addressing the standard of review for a motion to withdraw a plea,
the Brown court stated, “[w]hether a plea is knowing, intelligent, and voluntary is
a question of constitutional fact. We accept the circuit court’s findings of
historical and evidentiary facts unless they are clearly erroneous but we determine
independently whether those facts demonstrate that the defendant’s plea was
knowing, intelligent, and voluntary.” See id., ¶19 (citation omitted).

¶22 In WIS. STAT. § 971.08, the legislature established certain
requirements that trial courts must follow when taking a plea. Further, our
supreme court provided additional requirements in State v. Bangert, 131 Wis. 2d
246, 261-62, 389 N.W.2d 12 (1986), and Brown, 293 Wis. 2d 594, ¶35, among
other cases. The relevant requirement at issue in this case is that the trial court
must “[e]stablish the defendant’s understanding of … the range of punishments to
which he is subjecting himself by entering a plea[.]” See Brown, 293 Wis. 2d 594,
¶35.

If the circuit court fails at one of these duties (also
called a Bangert violation), the defendant may be entitled
to withdraw his plea. A defendant establishes that the
circuit court failed at one of its duties by filing a motion (a
Bangert motion) that: (1) makes a prima facie showing of a
violation of [WIS. STAT.] § 971.08(1) or other court-
mandated duties; and (2) alleges that “the defendant did not
know or understand the information that should have been
provided at the plea hearing.” A defendant attempting to
make this prima facie showing must point to deficiencies in
the plea hearing transcript; conclusory allegations are not
sufficient.

Cross, 326 Wis. 2d 492, ¶19 (internal citations omitted).

¶23 In this case, the parties agree that Cammon was informed that his
maximum punishment was higher than the law actually authorized. As the court
in Cross stated, “[t]he question is whether this constitutes a Bangert violation—

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that is, a failure by the circuit court to fulfill its required duties under [WIS. STAT.]
§ 971.08(1) and our case law during the plea colloquy.” See Cross, 326 Wis. 2d
492, ¶21.

¶24 Like Cross, Cammon asserts that because he was told the incorrect
maximum punishment and his understanding of the maximum was based on that
incorrect information, he has established a Bangert violation. He argues that he
did not understand the penalties for his crimes because the trial court advised him
that the maximum prison exposure was twenty-four years—not the actual
allowable maximum sentence of sixteen years. Citing Cross, the State argues that
Cammon’s claim fails because the trial court’s misstatement regarding the
maximum prison exposure was an insubstantial deviation that did not result in a
manifest injustice. See id., 326 Wis. 2d 492, ¶¶31-32. As we will explain, we
conclude that the trial court’s misstatement of the maximum penalties was an
insubstantial deviation which does not warrant any type of relief. See id.

¶25 Cross holds that when a defendant is informed that the maximum
possible penalty is higher, but not substantially higher, than the actual maximum
authorized by law, the defendant may nevertheless enter his or her plea knowingly,
intelligently, and voluntarily, because he or she adequately understands the range
of punishments he or she faces. Id., ¶38. Thus, a plea based on a
misunderstanding of the precise maximum penalty does not necessarily result in a
manifest injustice. Id., ¶¶36-37.

¶26 In Cross, the defendant pled guilty to second-degree sexual assault
of a child. Id., ¶1. The State, trial counsel, and the trial court incorrectly informed
Cross, before he entered his plea, that the maximum penalty for his offense was
forty years of imprisonment—not the actual statutory maximum of thirty years of

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imprisonment. Id., ¶¶1, 3. The issue on appeal was whether Cross’s plea was
knowing, intelligent, and voluntary. See id., ¶3.

¶27 In Cross, our supreme court stated that “[i]n our view, a defendant
who has been told a maximum punishment higher, but not substantially higher,
than that authorized by law, has not necessarily made a prima facie case that the
requirements of [WIS. STAT.] § 971.08 and our case law have been violated.”
Cross, 326 Wis. 2d 492, ¶30. It explained, in part, that

a defendant who believes he is subject to a greater
punishment is obviously aware that he may receive the
lesser punishment. ... Moreover, we do not believe a
defendant’s decision to represent in open court that he
committed the crimes he is charged with is likely to be
affected by insubstantial differences in possible
punishments.

Id., ¶31. The Cross court further explained that

requiring an evidentiary hearing for every small deviation
from the circuit court’s duties during a plea colloquy is
simply not necessary for the protection of a defendant’s
constitutional rights. The Bangert requirements exist as a
framework to ensure that a defendant knowingly,
voluntarily, and intelligently enters his plea. We do not
embrace a formalistic application of the Bangert
requirements that would result in the abjuring of a
defendant’s representations in open court for insubstantial
defects.

Cross, 326 Wis. 2d 492, ¶32.

¶28 The Cross court went on to state that pursuant to WIS. STAT.
§ 973.13, “[w]hen given a sentence greater than that authorized by law, which
presumably would also involve an error in the understanding of the possible
maximum penalty, the remedy here is a commuted sentence, not plea withdrawal.”
Cross, 326 Wis. 2d 492, ¶34. The Cross court then concluded:

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We hold that where a defendant is told that he faces
a maximum possible sentence that is higher, but not
substantially higher, than that authorized by law, the circuit
court has not violated the plea colloquy requirements
outlined in [WIS. STAT.] § 971.08 and our Bangert line of
cases. In other words, where a defendant pleads guilty with
the understanding that he faces a higher, but not
substantially higher, sentence than the law allows, the
circuit court has still fulfilled its duty to inform the
defendant of the range of punishments. Therefore, the
defendant is not entitled to an evidentiary hearing, and plea
withdrawal remains in the discretion of the circuit court and
will not be disturbed unless the defendant shows that it is
necessary to correct a manifest injustice.

Cross, 326 Wis. 2d 492, ¶45.

¶29 We conclude that Cross is controlling under the facts in this case.8

Application of Cross to Cammon

¶30 At the start, we note that the only flaw that Cammon points to when
he entered his pleas was that the pleas were made with the misunderstanding of the
precise maximum sentences for his charges. We conclude that Cammon has not

8
The postconviction court rejected Cammon’s claim that he was incorrectly informed of
the maximum penalties for his charges. It held that the trial court correctly informed Cammon of
the maximum penalties for the charges as they existed at the time of the plea—at the time of the
plea the charges included the repeater enhancers. It then held that Cammon could not state a
claim for a Bangert violation based on post-plea proceedings. However, the postconviction court
also went on to apply the holding in Cross and concluded that the difference between the
maximum sentences that the trial court informed Cammon about at the plea hearing were not
significantly higher the actual allowable maximum sentences for his charges.

In his brief on appeal Cammon states that he disagrees with the postconviction court’s
logic that he was properly informed of the maximum penalties at the time of his pleas. Given our
conclusion that there was no Bangert violation, because under the facts of this case the difference
between the maximum sentences that the trial court informed Cammon of at the plea hearing
were not significantly higher than the actual allowable maximum sentences for his charges, we
need not address this issue. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct.
App. 1989) (stating that appeals should be decided on the narrowest possible grounds).

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made a prima facie showing that the trial court failed to comply with WIS. STAT.
§ 971.08 or the requirements outlined in Brown and Bangert when it misinformed
him of the potential maximum penalty. Like Cross, Cammon was informed of a
punishment greater than what the law provided—twenty-four years of
imprisonment, instead of the actual maximum sentence of sixteen years of
imprisonment. In Cross, Cross was told that the maximum period of
imprisonment was forty years, instead of the actual maximum sentence of thirty
years of imprisonment for his charges. Id., 326 Wis. 2d 492, ¶1.

¶31 Like Cross, Cammon admitted committing his crimes and he pled
guilty to them. See id., ¶¶7-8. Furthermore, Cammon benefited from the plea
agreement because the State’s dismissal of three charges reduced Cammon’s
potential prison time by a total of eleven years and six months. When Cammon
entered his pleas, he believed that he was facing a maximum of twenty-four years
of imprisonment. However, like Cross, after entering his pleas, Cammon
discovered that he received an even better deal because he faced no more than
sixteen years of imprisonment. See id., ¶43. The trial court’s misstatement in this
case, ultimately, worked to Cammon’s benefit and is precisely the type of
insubstantial deviation contemplated by Cross. See id., ¶41.

Cammon’s attempt to distinguish Cross fails

¶32 Cammon attempts to distinguish Cross by asserting that Cross was
facing additional multiple uncharged counts of first-degree sexual assault of a
child, in addition to the one he pled to. Cammon argues that in contrast to Cross,
he was “charged in a very aggressive manner with four charges related to his
assault” in the first case. However, Cammon ignores the fact that, pursuant to the
plea agreement, the State dismissed one count of felony intimidation of a victim

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and two other counts in the first case which reduced Cammon’s potential prison
exposure by a total of eleven years and six months. Cross is not distinguishable.

Cammon’s attempt to show that he did not understand the
range of penalties also fails

¶33 On appeal, Cammon also seems to argue that other facts in the
record “are appropriate to consider when determining what is substantial.” He
asserts that his “conduct in [c]ourt was such that his competency needed to be
resolved by a doctor’s report and that he needed to appear by remote hookup to
hear the conclusion of his sentencing hearing” (record citations omitted).
Cammon also asserts that at the plea hearing he confirmed that he suffered from
bipolar disorder and that he was taking medications for the disorder. He then
states that after he had completed the plea forms, he maintained his innocence. He
goes on to assert that “[t]he manner in which his pleas were taken thereafter also
must raise questions as to their validity and are appropriate to consider when
determining what is substantial.”

¶34 Cammon’s assertions are merely conclusory. He simply states that
the foregoing facts should be considered when determining what is substantial.
Cammon does not develop the argument and we decline to develop it for him. See
State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).
Further, if Cammon is arguing that the facts that he asserted above show that he
did not understand the range of penalties that he faced, he did not make that
allegation in his postconviction motions. “[W]e will review only the allegations
contained in the four corners of [Cammon’s] postconviction motion[s], and not
any additional allegations that are contained in [his appellate] brief.” See State v.
Allen, 2004 WI 106, ¶27, 274 Wis. 2d 568, 682 N.W.2d 433.

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¶35 Cammon also appears to suggest that the trial court had an obligation
to advise him “of his right to seek a plea withdrawal prior to his sentencing.”
Cammon does not cite any authority for this argument and does not develop the
argument. We decline to develop it for him. See Pettit, 171 Wis. 2d at 646-47.

¶36 Based on the above, we conclude that Cammon understood the range
of punishments and that he did not make a prima facie showing that the trial court
failed in its duties under WIS. STAT. § 971.08 and the Bangert line of cases.
Accordingly, we conclude that Cammon’s pleas were made knowingly,
intelligently, and voluntarily, and that he has not demonstrated that a manifest
injustice would result if he were not allowed to withdraw his plea.

II. Cammon has not sufficiently alleged a claim of
ineffective assistance of trial counsel

¶37 Cammon also argues that trial counsel was constitutionally
ineffective because (1) trial counsel misstated the maximum penalties associated
with each charge; and (2) trial counsel did not request additional time to confer
with him to determine if he wanted to withdraw his pleas in light of the
misstatement of the maximum penalties, and to explain the differences in the legal
standards for withdrawing a plea prior to sentencing versus after sentencing.

Applicable law

¶38 To establish a claim of constitutionally ineffective assistance of
counsel, a defendant must establish the following two components: (1) trial
counsel’s performance was deficient; and (2) the deficient performance resulted in
prejudice to the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). A
reviewing court may decide an ineffective assistance of counsel claim by
analyzing either component. Id. at 697. Wisconsin courts have adopted the

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United States Supreme Court’s two-pronged Strickland test to analyze claims of
ineffective assistance of counsel. State v. Williams, 2015 WI 75, ¶74, 364 Wis. 2d
126, 867 N.W.2d 736.

¶39 To establish that trial counsel’s performance was deficient, a
defendant must show that under all the circumstances trial counsel’s performance
fell “outside the wide range of professionally competent assistance.” Strickland,
466 U.S. at 690. To establish 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. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694.

¶40 In State v. Burton, our supreme court explained that

[t]o establish prejudice in the context of a
postconviction motion to withdraw a guilty plea based upon
ineffective assistance of counsel, the defendant must allege
that “but for the counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.”
[State v.] Bentley, 201 Wis. 2d [303,] 312, 548 N.W.2d 50
[1996] (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

See Burton, 2013 WI 61, ¶50, 349 Wis. 2d 1, 832 N.W.2d 611. Moreover, courts
in Wisconsin have

long held that the facts supporting plea withdrawal must be
alleged in the petition and the defendant cannot rely on
conclusory allegations, hoping to supplement them at a
hearing. A defendant must do more than merely allege that
he would have pled differently; such an allegation must be
supported by objective factual assertions.

State v. Bentley, 201 Wis. 2d 303, 313, 548 N.W.2d 50 (1996) (internal citation
omitted). “[A] defendant should provide facts that allow the reviewing court to
meaningfully assess his or her claim.” Id. at 314.

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¶41 The Bentley court also noted that, although it was not bound by
federal case law, it considered Santos v. Kolb, 880 F.2d 941, 943 (7th Cir. 1989)
instructive in Bentley’s case. Bentley, 201 Wis. 2d at 314. In Kolb, the court held
that “[a] specific explanation of why the defendant alleges he would have gone to
trial is required.” Bentley, 201 Wis. 2d at 314 (quoting Kolb, 880 F.2d at 943).

¶42 We next review Cammon’s postconviction motions’ allegations
regarding his ineffective assistance of trial counsel claim to determine if Cammon
sufficiently alleged prejudice.

Cammon failed to sufficiently allege prejudice

¶43 Cammon alleges that trial counsel incorrectly informed him of the
maximum penalties at the time he pled guilty and that trial counsel was ineffective
for failing to advise him that he could move to withdraw his pleas prior to
sentencing, when it became clear that he was misinformed of the maximum
penalties for his charges. However, the only allegation in Cammon’s
postconviction motions relating to whether he was prejudiced by trial counsel’s
deficient performance was his statement that “Mr. Cammon was prejudiced by this
ineffective representation and the result was a manifest injustice.”9

9
In his appellate brief Cammon also states that he was “sufficiently prejudiced” because
he now faces the higher “manifest injustice” standard for withdrawing his guilty pleas rather than
the lower “fair and just reason” standard that applies to plea withdrawals prior to sentencing. He
also asserts,

[t]here can be no doubt that any defendant when informed of the
maximum penalties they could receive is impacted to some
extent. It is at this time that the fear of such a penalty can easily
influence that party to accept a plea proposal, perhaps when they
should not do so.

(continued)

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Nos. 2018AP1336-CR
2018AP1337-CR

¶44 In response, the State argues that Cammon’s motions, at most, only
developed the first prong of the Strickland test, which requires a showing that
Cammon’s trial counsel performed outside the wide range of professionally
competent assistance. The State then emphasizes that Cammon failed to establish
the second prong of the test, which requires a showing of prejudice. It argues that
Cammon had to allege facts demonstrating that, but for his trial counsel’s
ineffective representation, he would not have accepted the plea agreement and
would have chosen to go to trial on all five charges. See Hill v. Lockhart, 474
U.S. 52, 58-59 (1985). Cammon responds to the State’s argument in his reply
brief stating, “Mr. Cammon responds by arguing that the facts and record
presented establish prejudice in themselves. In addition[,] … he requested a
hearing to further present evidence as to this issue and was denied that opportunity
by the [t]rial [c]ourt’s decision.”

¶45 We agree with the State that Cammon failed to sufficiently allege
facts demonstrating that, but for trial counsel’s alleged deficient performance, he
would not have accepted the plea agreement and would have chosen to go to trial
on all five charges. Moreover, Cammon does not refute the State’s assertion in his
reply brief and, therefore, concedes this issue. See Charolais Breeding Ranches,
Ltd. v. FPC Secs. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979)
(stating that failure to refute an argument constitutes a concession).

Cammon then “submits that it is logical and reasonable that he was prejudiced by this
representation.”

“[W]e will review only the allegations contained in the four corners of [Cammon’s]
postconviction motion[s], and not any additional allegations that are contained in [Cammon’s
appellate] brief.” See State v. Allen, 2004 WI 106, ¶27, 274 Wis. 2d 568, 682 N.W.2d 433.

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Nos. 2018AP1336-CR
2018AP1337-CR

¶46 We, therefore, conclude that the postconviction court properly
denied any relief, including a hearing, on Cammon’s ineffective assistance of trial
counsel claim. We conclude that Cammon’s single conclusory, bare-bones
statement is not sufficient to require an evidentiary hearing and would not allow
the postconviction court to meaningfully assess his claim that he was prejudiced
by the misinformation.

CONCLUSION

¶47 In sum, we modify the judgment in the first case, and affirm that
judgment, as modified; and affirm the judgment in the second case. We also
conclude that the postconviction court properly denied, without a hearing,
Cammon’s motions seeking an order allowing him to withdraw his guilty pleas as
not being knowingly, intelligently, and voluntarily entered and because trial
counsel’s representation was constitutionally ineffective. Therefore, we affirm the
postconviction court’s orders.

By the Court.—Judgment modified and, as modified, affirmed;
judgment affirmed; orders affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

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