State v. Carlos A. Rodriguez

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 14, 2025
A party may file with the Supreme Court a
Samuel A. Christensen 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 No. 2024AP657 Cir. Ct. No. 2017CF3393

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CARLOS A. RODRIGUEZ,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
MILTON L. CHILDS, SR., Judge. Affirmed.

Before Colón, P.J., Donald, and Geenen, JJ.

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).
No. 2024AP657

¶1 PER CURIAM. Carlos A. Rodriguez, pro se, appeals from an order
of the circuit court denying his postconviction motion for sentence modification.
For the following reasons, we affirm.

BACKGROUND

¶2 In October 2017, Rodriguez pled guilty to two counts of second-
degree reckless injury, WIS. STAT. § 940.23(2)(a) (2023-24),1 for charges
stemming from a high-speed automobile accident that caused great bodily harm to
two people. Rodriguez was ordered to serve consecutive prison sentences totaling
ten years of initial confinement and six years of extended supervision. Justifying
those sentences, the circuit court emphasized the gravity of Rodriguez’s crimes,
his prior criminal history, the breaks he received in connection with his earlier
criminal convictions, its goal of deterring automobile theft and reckless speeding,
and the need for punishment and rehabilitation. While it insisted that it took “no
joy in sending young individuals” like Rodriguez to prison, the court held that
“anything less would unduly diminish the serious nature of the offense and would
send the wrong message.”

¶3 After dictating the overall structure and duration of its sentence, the
court assessed Rodriguez’s eligibility for early release from prison. It declared
him ineligible for the Challenge Incarceration Program (CIP), stating “I don’t
think they would even accept you.” Expressing a desire for “some treatment in
prison,” the court deemed him eligible for the Substance Abuse Program (SAP)

1
All references to the Wisconsin Statutes are to the 2023-24 version.

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No. 2024AP657

after serving five years of his sentence, but it observed that Rodriguez would not
necessarily be “accept[ed]” into the program.2

¶4 Rodriguez has since filed multiple pro se motions seeking relief
from his convictions and sentences. His first motion sought sentence modification
based on a new factor, namely, that the circuit court overlooked at sentencing that
he was statutorily ineligible for the SAP because he was convicted of Chapter 940
offenses. The court denied his motion, holding that his SAP eligibility was not a
new factor and that sentence modification was otherwise unwarranted “given the
extraordinarily reckless nature of this offense and the impact on the victims[.]”

¶5 Rodriguez filed a second motion raising the same claim. The circuit
court again denied his request, recognizing that it had already rejected his
argument when it denied his preceding motion, holding that his “latest motion
d[id] not warrant a different result,” and warning Rodriguez “that further
successive requests of this nature w[ould] not be considered but w[ould] be filed
without response.”

¶6 Rodriguez filed a third motion again raising the same claim and also
advancing two arguments not found in the earlier motions: (1) the circuit court
erroneously exercised its discretion when it declared him ineligible for the CIP;
and (2) the circuit court violated his due process rights by sentencing him based on
inaccurate information. The circuit court took no action on this motion.

2
In order to be eligible to participate in SAP, an inmate must meet the criteria set forth
in WIS. STAT. § 302.05. An inmate incarcerated for an offense under Chapter 940 is ineligible to
participate in SAP. Sec. 302.05(3)(a)1.

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No. 2024AP657

¶7 Rodriguez then filed his fourth motion, which underlies this appeal.
In the motion, he renewed his claim that the circuit court relied on inaccurate
information concerning his eligibility for the SAP when it imposed his sentence.
He also argued that the attorney who represented him at his sentencing hearing
was ineffective for neither “object[ing] to the sentencing court’s reliance of [sic]
inaccurate information” nor “argu[ing] for a sentence that would have allowed the
sentencing court to adjust its sentence—based on accurate information—to reflect
the courts [sic] intentions in which it stressed that Rodriguez was to serve at least
five years of confinement time before being eligible for any programs.”
Rodriguez also argued that his appointed postconviction counsel was ineffective
for closing his case without filing a postconviction motion raising the same claims.

¶8 The circuit court denied Rodriguez’s motion without holding a
Machner3 hearing. In its decision, the court acknowledged Rodriguez’s claim
about the circuit court’s errant belief during sentencing about his SAP eligibility
and his corollary claim that postconviction counsel was ineffective for failing to
litigate issues of potential merit. Nonetheless, the court held that Rodriguez failed
to sufficiently plead how his postconviction counsel was ineffective and offered
“only conclusory allegations,” rather than “sufficient material facts that, if true,
would entitle him to relief.” Additionally, citing Witkowski4 for the principle that
“[a]n issue that was decided in earlier postconviction proceedings cannot be raised
in a subsequent postconviction motion no matter how artfully it is rephrased,” the
court observed that it had rejected Rodriguez’s two preceding motions for

3
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
4
State v. Witkowski, 163 Wis. 2d 985, 990, 473 N.W.2d 512 (Ct. App. 1991).

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No. 2024AP657

sentence modification on the same grounds—that the court deemed him eligible
for participation in the SAP despite his statutory ineligibility.

¶9 Rodriguez appeals.

DISCUSSION

¶10 Rodriguez argues on appeal that trial counsel was ineffective for not
pointing out to the court at sentencing that Rodriguez was statutorily ineligible for
the SAP, and that postconviction counsel was ineffective for failing to litigate this
issue. We agree with the State and the circuit court that Rodriguez is procedurally
barred from bringing this claim. We also agree with the circuit court that the
record conclusively demonstrates that Rodriguez is not entitled to relief, so the
circuit court was not required to hold a Machner hearing.

¶11 We have long recognized that “[a] matter once litigated may not be
relitigated in a subsequent postconviction proceeding no matter how artfully the
defendant may rephrase the issue.” State v. Witkowski, 163 Wis. 2d 985, 990, 473
N.W.2d 512 (Ct. App. 1991). Thus, “if the defendant’s grounds for relief have
been finally adjudicated, waived or not raised in a prior postconviction motion,”
those claims may not become the basis for a WIS. STAT. § 974.06 motion. State v.
Escalona-Naranjo, 185 Wis. 2d 168, 181, 517 N.W.2d 157 (1994).5

5
Failure to allege or to adequately raise an issue in the original postconviction motion
may be excused if the defendant provides a “sufficient reason,” State v. Escalona-Naranjo, 185
Wis. 2d 168, 181-82, 517 N.W.2d 157 (1994), and ineffective assistance of postconviction
counsel may justify a defendant’s failure to raise ineffective assistance of trial counsel, State v.
Romero-Georgana, 2014 WI 83, ¶36, 360 Wis. 2d 522, 849 N.W.2d 668. In such a case,
defendants must show that the claims they wish to bring are “clearly stronger” than the claims
actually brought by postconviction counsel. Id., ¶46.

(continued)

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No. 2024AP657

¶12 Rodriguez has twice requested that the circuit court modify his
sentence because it allegedly overlooked that his convictions made him ineligible
for the SAP. When those efforts failed, Rodriguez reframed his claim to allege
that counsel was ineffective for not objecting to or seeking to correct the circuit
court’s reliance on inaccurate information concerning his SAP eligibility.
Rodriguez is doing exactly what Witkowski prohibits: artfully repackaging a
previously litigated claim in order to get another bite at the apple. To be clear, a
defendant who insists that the circuit court misconstrued prison programming
eligibility requirements may have more than one avenue to pursue such an
argument, but however framed, the underlying argument is effectively the same,
and Rodriguez’s latest postconviction motion is a prime example of a defendant
trying to improperly relitigate the same failed arguments.6

¶13 In addition to being procedurally barred, we conclude that the record
conclusively demonstrates that Rodriguez is not entitled to relief, and therefore,
the circuit court was not required to hold a Machner hearing. Specifically, the

Here, however, Rodriguez himself filed the original postconviction motion, not
postconviction counsel, and Rodriguez fails to explain how postconviction counsel’s performance
caused Rodriguez to omit his claim that trial counsel was ineffective in his original motion.
Additionally, the claim that Rodriguez wanted postconviction counsel to pursue is functionally
the same issue that Rodriguez presented in his original postconviction motion: that the circuit
court relied on inaccurate information at sentencing (i.e., that Rodriguez was eligible for the
SAP). Rodriguez fails to adequately allege a sufficient reason for failing to bring his ineffective
assistance of trial counsel claim in his original postconviction motion, and moreover, he fails to
adequately allege that his current claims are clearly stronger than those brought in his original
postconviction motion because they are functionally identical issues.
6
The fact that Rodriguez raised new arguments in his third postconviction motion that
were not resolved by the circuit court does not affect our analysis. Those unresolved arguments
were not renewed in Rodriguez’s fourth postconviction motion, and he does not raise them on
appeal. The only claims raised in Rodriguez’s fourth postconviction motion and on appeal are
claims that the circuit court previously considered and rejected on the merits, rephrased so as to
try to avoid the applicable procedural bars.

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No. 2024AP657

record conclusively shows that Rodriguez was not prejudiced as a result of trial
counsel’s failure to correct the circuit court regarding Rodriguez’s ineligibility for
the SAP.

¶14 “A criminal defendant is guaranteed the right to effective assistance
of counsel under both the United States and Wisconsin Constitutions.” State v.
Hanson, 2019 WI 63, ¶17, 387 Wis. 2d 233, 928 N.W.2d 607. To establish a
violation of that right, “a defendant must demonstrate both that (1) counsel’s
representation was deficient, and (2) the deficiency was prejudicial.” State v.
Ruffin, 2022 WI 34, ¶29, 401 Wis. 2d 619, 974 N.W.2d 432. “Both prongs of the
inquiry need not be addressed if the defendant makes an insufficient showing on
one.” Id.

¶15 “To demonstrate deficient performance, a defendant must show that
counsel’s representation fell below an objective standard of reasonableness
considering all the circumstances.” Id., ¶30. To show prejudice, the defendant
must show “a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 694 (1984).

¶16 “A Machner hearing is a prerequisite for consideration of an
ineffective assistance claim.” State v. Sholar, 2018 WI 53, ¶50, 381 Wis. 2d 560,
912 N.W.2d 89. However, not all postconviction motions merit a Machner
hearing. Circuit courts may deny a postconviction motion without holding a
Machner hearing “if the record conclusively demonstrates that the defendant is
not entitled to relief[.]” Ruffin, 401 Wis. 2d 619, ¶28. Whether the record
conclusively demonstrates that the defendant is not entitled to relief is a question
of law that we review independently. Id., ¶27.

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No. 2024AP657

¶17 Here, the circuit court left no doubt about which factors motivated
Rodriguez’s sentence, and it is clear that Rodriguez’s potential SAP eligibility had
no bearing on the structure or length of his imprisonment. The circuit court
stressed the gravity of Rodriguez’s crimes, particularly the danger that he and
others pose by speeding through red lights and seriously injuring other motorists.
The circuit court emphasized Rodriguez’s poor impulse control, his criminal
history, and the breaks he had received previously in the criminal justice system.
Ultimately, it concluded that ten years of initial confinement was not only
appropriate but also that “anything less would unduly diminish the serious nature
of the offense and would send the wrong message.”

¶18 While it is true that the circuit court expressed hope for Rodriguez to
receive treatment while in prison, it acknowledged that there was no guarantee that
Rodriguez would be accepted into the program, and none of its comments suggest
that it wanted Rodriguez released any earlier than it had ordered. Accordingly, we
conclude that there is no reasonable probability that the circuit court would have
changed the structure or duration of Rodriguez’s sentence had trial counsel lodged
an objection to state that Rodriguez’s Chapter 940 convictions disqualified him
from the SAP.7 See Strickland, 466 U.S. at 694.

7
To the extent Rodriguez claims that postconviction counsel was ineffective for not
filing a motion based on ineffective assistance of trial counsel, we reject the argument.
Rodriguez was not prejudiced by trial counsel’s failure to correct the circuit court regarding his
ineligibility for the SAP, so a motion brought on this basis would have been unsuccessful. See
State v. Pico, 2018 WI 66, ¶28, 382 Wis. 2d 273, 914 N.W.2d 95.

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No. 2024AP657

CONCLUSION

¶19 Rodriguez’s ineffective assistance of counsel claim is procedurally
barred. Additionally, on the merits, the circuit court was not required to hold a
Machner hearing because the record conclusively demonstrates that Rodriguez
was not prejudiced by trial counsel’s allegedly deficient performance.

By the Court.—Order affirmed.

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

9