State v. Alvin James Jemison, Jr.

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.
July 18, 2023
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. 2021AP2207-CR Cir. Ct. No. 2016CF3388

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ALVIN JAMES JEMISON, JR.,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: JEFFREY A. WAGNER, Judge. Affirmed.

Before Brash, C.J., Dugan and White, JJ.

¶1 BRASH, C.J. Alvin James Jemison, Jr. appeals from a judgment
convicting him of second-degree sexual assault of an unconscious person. He
challenges that conviction on three grounds—namely, that the State failed to
establish that he had sexual intercourse with the victim; that the circuit court erred
No. 2021AP2207-CR

in permitting the State to introduce certain other-acts evidence of prior
convictions; and that the circuit court also erred in denying, without a hearing, his
postconviction claim that he received ineffective assistance of counsel at trial. For
the reasons set forth below, we disagree with Jemison on all three issues and so
affirm the judgment of conviction and the order denying postconviction relief.

BACKGROUND

¶2 On July 26, 2016, Teresa1 was out celebrating with family and
friends. After that, she returned home and watched television until she fell asleep.
Teresa awoke feeling pain, as if “someone had their penis in her anus.” She also
felt that her underwear had been pulled down.

¶3 Teresa got out of bed, ran to the bathroom, and saw that Jemison,
described as a “family friend,” was in her bed. She told the police that she never
gave Jemison permission to have sex with her and never invited him into her
bedroom.

¶4 The police also interviewed Teresa’s mother, Alice,2 who stated that
when she had arrived home, she noticed that the pole to the blinds in the kitchen
was damaged, as if someone had attempted to get in through the window. Alice
also confirmed that she knew Jemison because in 2004, he was involved in a

1
Pursuant to WIS. STAT. RULE 809.86(4) (2021-22), we use a pseudonym to identify the
victim throughout this decision.

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
2
Again, we use a pseudonym in reference to the mother of the victim.

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sexual assault of another family member, but that the family had forgiven him for
that conduct.

¶5 The State charged Jemison with second-degree sexual assault as a
repeater–serious sex crimes, and also pursued a charge of burglary (home
invasion).

¶6 Prior to the trial, the State sought to admit five instances of other-
acts evidence—two of those resulting in convictions and three as uncharged
allegations. Of the two that resulted in convictions, the victims were family
friends of Jemison, both were sleeping in bed, and both woke up as Jemison was
sexually assaulting them.

¶7 In support of the admission of these other-acts, the State argued that
the evidence demonstrates “proof of motive, intent, absence of mistake or
accident, and context.” Importantly, counsel for Jemison did not object to the
admission of the two convictions but did oppose the allegations evidence,
contending that it was too remote in time from the present alleged conduct and
thus unduly prejudicial.

¶8 The circuit court ruled that the convictions were admissible in trial,
as were two of the three allegations. Even so, the State introduced only Jemison’s
two prior convictions by reading portions of the complaints in those cases; it did
not attempt to present evidence of any of the allegations evidence.

¶9 The first certified record of conviction was premised on a 1993 case
in which Jemison pled guilty to second-degree sexual assault of a child. In that
matter, the juvenile victim was asleep and woke up to find Jemison, who was a

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No. 2021AP2207-CR

family friend, cupping and massaging her breast. The juvenile victim screamed
for her mother, who came into the bedroom.

¶10 The second certified record of conviction was based on a 2003 case
in which Jemison pled guilty to second-degree sexual assault of an unconscious
victim. In that matter, the victim was asleep and woke to find Jemison, a family
friend, with his hand inside her pajamas, rubbing her vagina. The victim moved
around in an attempt to get him to stop, and when she stopped moving, Jemison
began touching her buttocks over the blanket.

¶11 During opening argument, defense counsel told the jury, “there is no
dispute here that the victim and Mr. Jemison had sex.” In fact, Jemison’s primary
defense throughout the trial was that the sex to which he admitted was consensual.
As the first witness, Teresa testified that she had known Jemison as a family friend
for almost twenty years and that, on the date of the crime, she went to her aunt’s
home, where Jemison showed up. She stated that she had some drinks there and
watched a show—and that, when she needed to get home, Jemison drove her. As
he dropped her off, both of them did a “shot,” and Teresa then went inside; she
testified that she never invited Jemison into the home.

¶12 Once inside, Teresa cooked dinner, went to her bedroom to watch
television and listen to the radio and then fell asleep. She woke up that night by
“[a] forced feeling in my anal.” She further testified that Jemison was “trying to
put his stuff inside of my butt” and that he “was almost in there, but not quite in
my anal.” Teresa observed that it was Jemison, “lunged him” with her elbow,
jumped out of bed, and ran to the bathroom. Jemison then ran out of Teresa’s
bedroom.

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¶13 When she was in the bathroom, Teresa “felt [a clear] liquid down
[her] legs.” She ran into her stepfather’s room and told him that she believed she
had just been raped by Jemison. Teresa’s stepfather, George Hall, also testified at
the trial, recounting that on the evening of July 26, 2016, he woke up to Teresa
“knocking on my door, and it was like a real forceful knock. Like a bang.”
According to Hall, Teresa was “crouching real tight” and “crying hysterical[.]”
Confirming Teresa’s account, Hall stated that Teresa told him that Jemison “tried
to rape her.”

¶14 Hall then drove Teresa to the hospital, where a nurse performed a
SANE exam.3 That nurse, Allison Lopez, testified that she met with Teresa on the
morning of July 27, 2016, during which Teresa told her that she woke up “between
one and two a.m. realizing that she was being assaulted.”

¶15 According to Nurse Lopez’s report, from which she testified, Teresa
also told her that “I woke up and he was trying to push it in there. [Teresa] states
that her anus was being penetrated by the assailant’s penis.” According to Lopez,
Teresa was “tearful, sobbing, trembling when discussing the events that occurred”;
Lopez further testified that Teresa was “complaining of pain to her anus.”

¶16 Detective Jonathan Mejias-Rivera testified at trial that police had
retrieved a buccal standard from Jemison; that standard, as well as the SANE kit
collected by Nurse Lopez, was sent to the Wisconsin State Crime Laboratory for
testing. The analyst who tested the samples, Emily Schmitt, testified that to a

3
In a “Sexual Assault Nurse Examiner” (SANE) procedure, a registered nurse with
specialized training in sexual assault situations performs appropriate examinations and collects
forensic evidence.

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No. 2021AP2207-CR

reasonable degree of scientific certainty, Jemison was the source of the semen that
was collected from Teresa.

¶17 In connection with its introduction of the other-acts evidence, the
State introduced the certified criminal complaints against Jemison from 1993 and
2003, and read portions of them to the jury. In its instructions to the jury, the
circuit court explained that the evidence regarding Jemison’s guilty pleas to
second-degree sexual assault of a child and to second-degree sexual assault of an
unconscious victim could be considered “only on the issue of identity, that is,
whether the prior conduct of [Jemison] is so similar to the offense charged that it
tends to identify [Jemison] as one who committed the offense charged, opportunity
that is whether [Jemison] had the opportunity to commit the offense charged.”
The circuit court also instructed the jury that it could not consider the other-acts
evidence “to conclude that [Jemison] has certain character or certain character
traits that [Jemison] acted in conformity with that trait or character with respect to
the offense charged in this case.”

¶18 After brief deliberation, the jury found Jemison guilty of both counts
in the amended information, and the circuit court subsequently sentenced Jemison
to life in prison without the possibility of release to extended supervision.

¶19 Jemison then sought postconviction relief in the form of a new trial.
Specifically, he claimed that the circuit court committed plain error in allowing the
State to introduce the other-acts evidence of his two prior sexual assault
convictions. He also alleged that his trial counsel was ineffective for not objecting
to the introduction of the other-acts evidence. Jemison asked for an evidentiary
hearing on his motion should a new trial not be granted.

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No. 2021AP2207-CR

¶20 After briefing by the parties, the court denied that motion without
conducting an evidentiary hearing. It concluded that the other-acts evidence was
appropriately admitted into evidence since they “were clearly similar to the current
offense in terms of their modus operandi,” as all of the offenses “involved
[Jemison] sexually taking advantage of sleeping victims, and therefore, the
other[-]acts were relevant to the issue of identity.” The court also determined that
Jemison failed to establish that “the probative value of the other[-]acts evidence
was substantially outweighed by the danger of unfair prejudice”—and that “any
danger of unfair prejudice was minimized or eliminated by the court’s cautionary
instruction.”

¶21 In response to the plain-error argument of the defense, the court
found that “the primary purpose of the complaints created for separate criminal
actions was not as an out-of-court substitute for trial testimony in this case.” It
also concluded that Jemison’s “right to confrontation as to the complaints was
waived by his guilty pleas in those cases” and that “evidence of the convictions
presented in conjunction with the complaints was proper other[-]acts evidence[.]”
The court further observed that, “as a practical matter, even if presentation of these
specific documents was objectionable, [Jemison] admitted to this conduct by his
guilty pleas.”

¶22 Beyond this, the court noted that, because the State could have
provided evidence of Jemison’s other acts “by a variety of other means, the
admission of these documents was harmless. The manner of the presentation of
[Jemison’s] prior acts of sexual assault did not affect the outcome of the trial.”

¶23 Finally, as to the claim of ineffective assistance of counsel, the court
determined that because the evidence of the other acts was properly admitted,

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No. 2021AP2207-CR

Jemison “cannot demonstrate that he was prejudiced as the court would have
overruled an objection from trial counsel and the State could have presented
evidence of the conduct to which the defendant pled guilty to by other means.” As
noted above, Jemison appeals on three bases—namely, that the State failed to
establish that he had sexual intercourse with the alleged victim; that the trial judge
erred in allowing the State to present other-acts evidence in the nature of the two
prior convictions; and that he also erred in denying, absent an evidentiary hearing,
Jemison’s postconviction claim of ineffective assistance of counsel.

DISCUSSION

1. Sufficiency of the evidence of “sexual intercourse”

¶24 In principal factual support of his argument about the insufficiency
of the evidence of actual “sexual intercourse,” Jemison appears to seize on the
words used by Teresa in describing the event—namely, that Jemison was “trying”
to put his penis in her anus; that it was “almost in [her anus]” but “not quite in
[her] anal.” Invoking the definitional language of the relevant WIS JI—CRIMINAL
1200B, Jemison maintains that to support a conviction for sexual intercourse,
Jemison’s penis must have actually entered Teresa’s anus and that the jury in this
case must have speculated about the meaning of Teresa’s testimony and, most
important, about what actually happened.

¶25 “When a defendant challenges a verdict based on sufficiency of the
evidence, [appellate courts] give deference to the jury’s determination and view
the evidence in the light most favorable to the State.” State v. Coughlin, 2022 WI
43, ¶24, 402 Wis. 2d 107, 975 N.W.2d 179. “If more than one inference can be
drawn from the evidence, [the appellate court] must adopt the inference that
supports the conviction.” Id. Stated differently, this court “will not substitute [its]

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No. 2021AP2207-CR

own judgment for that of the jury unless the evidence is so lacking in probative
value and force that no reasonable jury could have concluded, beyond a reasonable
doubt, that the defendant was guilty.” Id.

¶26 Here, Jemison expressly conceded at trial that he had sex with
Teresa. Beyond the fact that his principal defense was that the sex was
consensual, defense counsel told the jury precisely that in the opening statement.
Moreover, as described above, the language of Teresa’s graphic testimony—that
is, that she woke up to a “forced feeling in my anal” and that Jemison was “trying
to put his stuff inside of my butt”—provided the jury with a factually sufficient
basis upon which to conclude that Jemison had sexual intercourse with Teresa.4

¶27 That factual conclusion also finds support in the related testimony of
the SANE nurse, who, among other things, recorded Teresa’s account that her
anus “was being penetrated by the assailant’s penis.” In combination with the
scientific evidence from the Wisconsin State Crime Laboratory analyst that
Jemison was the source of the semen that was collected from Teresa, Jemison is
unable to carry his “heavy burden to show [that] the evidence could not reasonably
have supported a finding of guilt.” State v. Beamon, 2013 WI 47, ¶21, 347 Wis.
2d 559, 830 N.W.2d 681.

¶28 For these reasons, we reject Jemison’s argument that the abundant
evidence presented by the State at trial was insufficient to prove “sexual
intercourse” beyond a reasonable doubt.

4
It should be noted that the circuit court, in properly instructing the jury on the elements
of second-degree sexual assault, also noted that “any intrusion however slight by any part of the
person’s body or of any object, into the genital or anal opening of another” could qualify as
“sexual intercourse.”

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No. 2021AP2207-CR

2. The admission of other-acts evidence at trial

¶29 Because his counsel did not object to the admission of the other-acts
evidence, Jemison argues that the circuit court committed plain error in allowing
the presentation to the jury of his prior sexual assault convictions in 1993 and
2003. Among other things, he contends that the other acts were too remote and
dissimilar to justify their introduction; that they were inappropriately admitted to
prove “identity”; and that, in any case, the State should not have been allowed to
read to the jury portions of the criminal complaints associated with Jemison’s prior
convictions.

¶30 At the outset, we reaffirm the long standing proposition that plain
error is an error that is so fundamental that a new trial or other type of relief must
be granted despite the lack of an objection during trial. See State v. Jorgensen,
2008 WI 60, ¶21, 310 Wis. 2d 138, 754 N.W.2d 77. To support relief, the error
must also be obvious and substantial; it is only if the defendant “shows that the
unobjected to error is fundamental, obvious, and substantial [that] the burden then
shifts to the State to show the error was harmless.” Id.

¶31 Beyond this, we review the “circuit court’s admission of other-acts
evidence for an erroneous exercise of discretion.” State v. Griffin, 2019 WI App
49, ¶19, 388 Wis. 2d. 581, 933 N.W.2d 681. In that undertaking, we also invoke
the traditional, three-step analytical framework established in State v. Sullivan,
216 Wis. 2d 768, 771-72, 783, 576 N.W.2d 30 (1998). First, the evidence must be
offered for an admissible purpose under WIS. STAT. § 904.04(2)(a), such as to
establish motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident. Sullivan, 216 Wis. 2d at 772.

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No. 2021AP2207-CR

¶32 Although mode or method of operation (“modus operandi”) is not
expressly listed in WIS. STAT. § 904.04(2), it is generally held to be among the
factors “that tends to establish the identity of the perpetrator.” State v. Hall, 103
Wis. 2d 125, 139 & n.6, 307 N.W. 2d 289 (1981) (quoting Francis v. State, 86
Wis. 2d 554, 560, 273 N.W.2d 310 (1979)). Circuit court judges are also
permitted to admit some types of other-acts evidence to show the context of the
crime, to provide a complete explanation of the case, and to establish the
credibility of victims and witnesses. State v. Hunt, 2003 WI 81, ¶¶58-59, 263
Wis. 2d 1, 666 N.W.2d 771.

¶33 The second prong of the admissibility test is relevance—that is, that
the proffered evidence must be both of consequence to the determination of the
action and also tend “to make the consequential fact or proposition more probable
or less probable than it would be without the evidence.” Sullivan, 216 Wis. 2d at
772. Importantly, courts evaluate the probative value of that evidence in part
based on the similarity of the charged offense to the other acts in terms of nearness
of time, place, and circumstances. State v. Hammer, 2000 WI 92, ¶31, 236
Wis. 2d 686, 613 N.W. 2d 629.

¶34 When the party seeking the admission of the other-acts evidence
establishes these two prongs by a preponderance of the evidence, the burden shifts
to the opposing party for the third prong of the test. State v. Marinez, 2011 WI
12, ¶19, 331 Wis. 2d 568, 797 N.W.2d 399. This standard requires that the court
weigh whether the probative value of the evidence is substantially outweighed by
the risk of unfair prejudice or confusion to the jury under WIS. STAT. § 904.03.

¶35 WISCONSIN STAT. § 904.04 establishes the foundational evidentiary
requirements that the parties are obliged to satisfy if other-acts evidence is to be

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No. 2021AP2207-CR

introduced. Section 904.04(2) of the statute “favors admissibility in the sense that
it mandates the exclusion of other crimes evidence in only one instance: when it is
offered to prove the propensity of the defendant to commit similar crimes.”
State v. Speer, 176 Wis. 2d 1101, 1115, 501 N.W.2d 429 (1993).

¶36 Additionally, when the charges in a criminal matter involve a
“serious sex offense,” the so-called “greater latitude” rule generally applies.
Codified at WIS. STAT. § 904.04(2)(b)1., the rule establishes the “principle that in
sexual assault cases … courts permit a ‘greater latitude of proof as to other like
occurrences.’” State v. Davidson, 2000 WI 91, ¶36, 236 Wis. 2d 537, 613 N.W.2d
606 (citations omitted).

¶37 The complete record before the trial and the postconviction courts in
this case is modestly inconsistent in identifying with particularity the precise
purpose or purposes for which the other-acts evidence was invoked and offered.
Before the circuit court, the State apparently sought the admission of that evidence
as proof of motive, intention, absence of mistake or accident, and context.

¶38 The postconviction court appears to have focused its attention
somewhat more narrowly on the notion of “modus operandi”—that is, that the
prior convictions were clearly similar to the current offense in their method or
mode of operation and thus relevant to the jury’s consideration of “identity.” We
conclude, based upon the evidence presented at trial, that all of the identified
other-acts categories provide bases for admission under WIS. STAT. § 904.04(2)(a),
as the State proposed and argued.

¶39 Similarly, we hold that the prior convictions were relevant, as
mandated by the second Sullivan touchstone. It is well established that evidence
is relevant if it “relates to a fact or proposition that is of consequence to the

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No. 2021AP2207-CR

determination of the action [and] has a tendency to make a consequential fact
more probable or less probable than it would be without the evidence.” State v.
Hurley, 2015 WI 35, ¶77, 361 Wis. 2d 529, 861 N.W.2d 174. Among other
factual issues, motive and intent, especially in cases involving sexual assault, are
highly consequential to the determination of guilt or innocence, and the other-acts
evidence here unmistakably goes to assessments of Jemison’s intentional or
volitional acts.

¶40 The second component of the relevancy analysis—namely, whether
the evidence offered tends to make a consequential fact more or less likely—
rightly focuses on probative value. Id., ¶79. The instructional guidelines set forth
in Hurley are appropriately invoked here—including that the “measure of
probative value in assessing relevance is the similarity between the charged
offense and the other act…. The greater the similarity, complexity and
distinctiveness of the events, the stronger is the case for admission of the other[-
]acts evidence.” Id.

¶41 In this case, the similarities between the behaviors upon which the
prior convictions were premised and the conduct alleged in this case are
compelling. In each, Jemison’s victims were sleeping in their own beds and were
family friends who he sexually assaulted. Even so, Jemison argues that the other-
acts evidence was too remote in time, since one of the prior convictions was based
on an event some twenty-three years before the present conduct, and the other
occurred almost thirteen years prior; he also describes the behaviors as too

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No. 2021AP2207-CR

dissimilar since the victims were of significantly different ages,5 and the sexual
acts themselves involved different body parts.

¶42 We disagree that these differences compel a result contrary to that
which the trial judge and the postconviction court reached. Even when the
evidence is somewhat remote in time, that remoteness may be balanced and even
overcome by the factual similarity of the evidence, as it is here. See State v. Mink,
146 Wis. 2d 1, 16, 429 N.W.2d 99 (Ct. App. 1988); State v. Plymesser, 172 Wis.
2d 583, 596, 493 N.W.2d 367 (1992); State v. Kuntz, 160 Wis. 2d 722, 749, 467
N.W.2d 531 (1991). It is also significant that the other-acts evidence presented to
the jury in this case provided important context for Jemison’s conduct and, no less
significantly, enhanced Teresa’s credibility as the principal fact witness in this
sensitive matter.

¶43 To that end, we also embrace here the applicability of the “greater
latitude” rule—established and invoked by “the need to corroborate the victim’s
testimony against credibility challenges.” Davidson, 236 Wis. 2d 537, ¶40.
Plainly, Jemison and Teresa were the only witnesses to the sexual assault,
rendering proof issues, including assessments of the credibility of these two by the
jury, pivotal and so justifying a more liberal, justice-based application of the
Sullivan standards.

¶44 Finally, we hold that, contrary to Jemison’s advocacy, he has failed
to establish that any risk of unfair prejudice attendant upon the admission of his
prior sexual assault convictions substantially outweighs the probative value of it.

5
While Teresa was an adult when Jemison sexually assaulted her, the victims in the
1993 and 2003 cases were thirteen-years old and sixteen-years old, respectively.

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No. 2021AP2207-CR

“Essentially, probative value reflects the evidence’s degree of relevance.
Evidence that is highly relevant has great probative value, whereas evidence that is
only slightly relevant has low probative value.” Hurley, 361 Wis. 2d 529, ¶87
(citation omitted). Stated differently, the assessment of probative value mirrors if
not duplicates the related relevancy analysis contemplated by the second prong in
Sullivan.

¶45 As noted previously, the other-acts evidence tendered by the State
has probative value because of the abundant similarities to the offense conduct in
this case—not diminished or compromised by the temporal remoteness or
behavioral dissimilarity that Jemison identifies. Furthermore, any danger of unfair
prejudice was minimized, if not eliminated entirely, by the circuit court’s standard,
intelligible, cautionary instruction to the jury.

¶46 Jemison has not met his burden of proof in demonstrating that the
admission of the other-acts evidence constituted error that was fundamental,
obvious, and substantial. See Jorgensen, 310 Wis. 2d 138, ¶21. To the contrary,
it was offered by the State for wholly admissible purposes, was highly relevant to
the central issues presented, and was not substantially outweighed by the risk of
prejudice to the trier of fact. Accordingly, the circuit court did not erroneously
exercise its discretion in permitting the introduction of the previous criminal
convictions.

3. Reading the criminal complaints instead of live witness testimony

¶47 Jemison additionally objects to the manner in which the other-acts
evidence was presented to the jury—that is, by reading to its members certain
portions of the underlying criminal complaints. He contends that, because the
State was not required to offer live witness testimony as to the events and

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No. 2021AP2207-CR

circumstances in those pleadings, he was denied his constitutional right to
confrontation. We disagree.

¶48 It appears that Jemison’s objections to this process are rightly
assessed under plain error standards, mandating (as before) that he demonstrate
that the circuit court judge’s purported error in permitting the reading of the
complaints rather than eliciting witness testimony was fundamental, obvious, and
substantial. See Id. However, the Confrontation Clause of the Sixth Amendment
to the Constitution, upon which Jemison relies, applies only to testimonial
statements communicating testimonial evidence against an accused person.
Crawford v. Washington, 541 U.S. 36, 53-56 (2004).

¶49 Statements that are not created for the purpose of trial testimony do
not implicate the protections of the Confrontation Clause and are admissible as
long as the rules of evidence permit their admission. State v. Reinwand, 2019 WI
25, ¶23, 385 Wis. 2d 700, 924 N.W.2d 184. Here, the information in the criminal
complaints was not testimonial, and the pleadings themselves were self-
authenticating under WIS. STAT. § 909.02(12), requiring no foundation or
authentication for their admissibility.

¶50 Stated differently, the certified criminal complaints to which
Jemison objects were not created as evidentiary substitutes for trial testimony;
accordingly, they are not, by their nature, testimonial. Beyond this qualitative
aspect, the Confrontation Clause is fully satisfied when the challenged evidence
bears some “particularized guarantees of trustworthiness[.]” State v. Manuel,
2004 WI App 111, ¶26, 275 Wis. 2d 146, 685 N.W.2d 525. These officially
certified, publicly-filed, and fully accessible criminal complaints fall squarely
within that category.

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No. 2021AP2207-CR

¶51 Perhaps most compellingly, the right that Jemison now asserts—that
is, to confrontation of the witnesses against him—was waived by his guilty pleas
in those cases, as reflected by the fact that a plea is, by its nature, an admission of
a party opponent. See WIS. STAT. § 908.01(4)(b); United States v. Haddad,
10 F.3d 1252, 1258 (7th Cir. 1993). Accordingly, the criminal complaints that
were read to the jury in this case were public, self-authenticating records rightly
used to establish the other-acts evidence that had been rightly and appropriately
admitted; as non-testimonial documents, the mandates of the Confrontation Clause
did not apply to them, and there is thus no basis upon which to conclude that the
trial judge committed a fundamental, obvious, and substantial error when he
permitted the State to read the relevant information to the jury.6

4. Conduct of an evidentiary hearing on ineffective assistance claim

¶52 As noted above, Jemison’s final challenge on appeal is to the circuit
court’s decision not to conduct an evidentiary hearing on his claim of ineffective
assistance of counsel; that claim is itself based upon his claim that his attorney
failed to object to the introduction of the other-acts evidence described and
discussed above. It is, of course, well established that, to succeed on a claim of
ineffective assistance of counsel, the defendant must demonstrate both that his or
her attorney’s performance was deficient and that this deficiency prejudiced him
or her in some identifiable manner. Strickland v. Washington, 466 U.S. 668, 687
(1984); Hill v. Lockhart, 474 U.S. 52, 58-59 (1985).

6
Because of the nature of these conclusions about the other-acts evidence against
Jemison—including that the circuit court committed no plain error in their admission or in the
manner of their presentation to the trier of fact—we do not reach and so do not address the issue
of “harmless error.”

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No. 2021AP2207-CR

¶53 A showing of deficient performance by counsel requires evidence
“that counsel’s representation fell below an objective standard of reasonableness.”
Strickland, 466 U.S. at 688. The burden imposed on a defendant to show
prejudice is equally high. To meet that standard, “[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.” Id. at 694.

¶54 Once a defendant has properly alleged in a postconviction motion
that trial counsel was ineffective, the circuit court may hold a hearing to evaluate
the merits of the defendant’s claim. See State v. Machner, 92 Wis. 2d 797, 285
N.W.2d 905 (Ct. App. 1979). However, the court retains discretion to deny a
postconviction motion without a hearing if the motion “fails to allege sufficient
facts to raise a question of fact, presents only conclusory allegations, or if the
record conclusively demonstrates that the defendant is not entitled to relief.” State
v. Roberson, 2006 WI 80, ¶43, 292 Wis. 2d 280, 717 N.W.2d 111 (citations
omitted); see also State v. Ruffin, 2022 WI 34, ¶¶28, 35, 401 Wis. 2d 619, 974
N.W.2d 432.

¶55 Where, as here, the circuit court has declined to conduct a Machner
hearing, this court reviews de novo whether the postconviction motion alleged
information which, if true, was sufficient to require the circuit court to conduct a
hearing. State v. Bentley, 201 Wis. 2d 303, 308, 548 N.W.2d 50 (1996). Jemison
contends that his allegations of ineffective assistance of counsel as asserted in his
postconviction motion entitled him to such an evidentiary hearing.

¶56 The record is clear that the postconviction court denied Jemison’s
request for that hearing on the grounds that the other-acts evidence was properly
admitted under the Sullivan standards; that the admission of Jemison’s

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No. 2021AP2207-CR

convictions, presented in conjunction with the complaints, was proper; and that the
State did not violate Jemison’s right to confrontation when it read from those prior
complaints. Significantly, the court stated that, even if Jemison’s counsel had
raised objections to the introduction of the prior criminal convictions, it would
have overruled them.

¶57 Under these circumstances, it is equally clear that Jemison would
have been unable to show that he was prejudiced by the conduct of his attorney.
Accordingly, our de novo analysis, necessarily including an assessment of the
arguments in the postconviction motion, fails to support Jemison’s position that he
received ineffective assistance of counsel at trial and that he should have been
afforded an evidentiary hearing on that issue.

CONCLUSION

¶58 For all of the reasons set forth above, we conclude that the State met
its burden of proof in establishing that the defendant had sexual intercourse with
the victim; that the circuit court did not err in permitting the State to introduce
other-acts evidence of prior convictions; and that the court did not err in finding
without merit the defendant’s claim of ineffective assistance of counsel absent an
evidentiary hearing. Accordingly, we affirm.

By the Court.—Judgment and order affirmed.

Not recommended for publication in the official reports.

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