State v. Jason A. Natcone

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.
September 18, 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. 2023AP1945-CR Cir. Ct. No. 2019CF2443

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JASON A. NATCONE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Dane
County: JOSANN M. REYNOLDS, Judge. Affirmed.

Before Graham, P.J., Blanchard, and Taylor, 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).

¶1 PER CURIAM. Jason Natcone appeals from a judgment of
conviction for first-degree reckless homicide and from the circuit court’s order
No. 2023AP1945-CR

denying his postconviction motion for relief. Natcone argues that he must be
permitted to withdraw his no-contest plea to avoid a manifest injustice.
Specifically, he asserts that his trial counsel provided ineffective assistance by
misinforming him that he would receive 916 days of sentence credit, regardless of
whether his sentence was made concurrent to or consecutive with another
revocation sentence he was to serve, and that he relied on this misinformation in
deciding to enter his plea. We assume without deciding that trial counsel’s
performance was deficient, and we conclude that Natcone has not shown that he
was prejudiced as a result of his counsel’s assumed deficient performance.
Accordingly, we affirm.

BACKGROUND

¶2 The following was alleged in the criminal complaint filed against
Natcone. After Natcone visited at least five bars, drinking alcohol at each, he was
the driver responsible for a car crash in which one person was killed and several
others were injured. He was driving at an extremely high speed on a residential
street when he collided with another car from behind. At the time of the crash,
Natcone was on extended supervision for his seventh OWI offense.

¶3 The State charged Natcone with eleven crimes, the most serious
being first-degree reckless homicide in violation of WIS. STAT. § 940.02(1) (2023-
24) and homicide by intoxicated use of a vehicle in violation of WIS. STAT.
§ 940.09(1)(a).1 Natcone then entered a plea of no contest to the charge of first-
degree reckless homicide in exchange for the other charges being dismissed and

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

2
No. 2023AP1945-CR

read in for purposes of sentencing. Natcone’s conviction on the homicide charge
carried a maximum sentence of 40 years of initial confinement and 20 years of
extended supervision.

¶4 The circuit court sentenced Natcone to 17 years of initial
confinement followed by 20 years of extended supervision. The court imposed
this sentence consecutive to the sentence after revocation that Natcone received
for his seventh OWI offense.2 The circuit court then turned to the issue of
sentence credit. It appears to have been undisputed that Natcone had been in jail
for approximately 916 days following his arrest on this charge and revocation of
his extended supervision imposed on his OWI 7th conviction, and that he received
credit for that jail time towards his sentence after revocation for the OWI 7th
conviction. Under applicable law, a defendant may be entitled to “dual credit”
when given concurrent sentences, but not when given consecutive sentences. See
State v. Boettcher, 144 Wis. 2d 86, 87, 423 N.W.2d 533 (1988).

¶5 As applied in this situation, the prosecutor pointed out that there
would be no credit for the consecutive sentence that the court decided to impose.
Natcone’s trial counsel argued that “pursuant to State v. Antonio Johnson[3] he
would receive credit in this case despite the consecutive nature” of the sentence.
The court requested that counsel provide a letter with authority for his position,
but counsel never provided such a letter to the court. Counsel instead sent a letter
to Natcone on February 15, 2022, after the sentencing hearing, stating in pertinent
part that, “[w]hile [counsel] thought [the Antonio Johnson case] provided for

2
Dane County Case No. 2011CF2156.
3
State v. Johnson, 2018 WI App 2, 379 Wis. 2d 684, 906 N.W.2d 704.

3
No. 2023AP1945-CR

double credit in that situation, [counsel] was mistaken.” The court did not award
any sentence credit in this case.

¶6 Represented by new counsel, Natcone filed a postconviction motion
asserting that he must be allowed to withdraw his no-contest plea because he
received ineffective assistance of counsel when “trial counsel misinformed him as
to application of jail credit to his sentence in this case.” He asserted that he was
prejudiced as a result of the deficient performance because “he was not credited
the 916 days of jail credit against the sentence in this case” and that counsel’s
assertion that he would receive this sentence credit “is something [he] relied upon”
in entering his plea. He also asserted that his plea “was not knowingly entered”
because he “relied on trial counsel’s misinformation” on this issue.

¶7 The circuit court conducted an evidentiary hearing on Natcone’s
postconviction motion at which trial counsel and Natcone both testified.
According to counsel, he never advised Natcone that he would receive sentence
credit for the time he spent in jail on this case if the court imposed a consecutive
sentence. Counsel testified that when he and Natcone discussed jail credit when
they conferred about the plea in advance of the plea hearing, counsel advised
Natcone that 916 days of sentence credit would apply in this case “[i]f he got a
concurrent sentence.” When counsel was asked whether he informed Natcone at
that time that “he would potentially be entitled to double credit,” counsel again
said that he informed Natcone that “he would receive double credit … [i]f he
received a concurrent sentence in the pending case.” Counsel further testified that
he explained that the credit would not be applied if the court imposed a
consecutive sentence, and that counsel was “certain” that Natcone understood this.
Counsel acknowledged that he made an argument to the sentencing court that
Natcone should be entitled to the credit pursuant to Johnson even after the court

4
No. 2023AP1945-CR

imposed a consecutive sentence, but said that counsel “was trying to find any
relief [he] could” and that he “just said it wrong that day.” When asked about his
February 15, 2022 post-sentencing letter to Natcone, counsel testified that it
referred to the fact that counsel had been “mistaken” about the applicability of
sentence credit in the criminal case “when [counsel] made the argument in court.”

¶8 Contradicting trial counsel, Natcone testified that counsel told him in
multiple conversations in advance of the plea hearing that Natcone was entitled to
“double credit because [he was] fighting two cases at once [and] if [he] were to
take a plea bargain, [he] would get double credit on both if the judge would give
[him] consecutive sentences.” That is, Natcone testified, counsel told him that “if
for some reason [Natcone got] consecutive” sentences, which counsel did not
expect, Natcone would nevertheless get credit for “double time.” In response to
postconviction counsel’s question asking whether “the jail credit [was] a factor for
[Natcone] in considering entering [his] plea,” Natcone responded that he “would
never have taken a plea bargain if [he] didn’t get the credit on this case, ever.”

¶9 The circuit court denied Natcone’s motion for plea withdrawal. The
court credited trial counsel’s testimony that counsel told Natcone that credit would
be given only in the event of a concurrent sentence, even though counsel had
advanced a contrary argument to the court at the sentencing hearing. That is, the
court recognized the inconsistency between what counsel testified he had told
Natcone and counsel’s argument to the court that Natcone was entitled to credit
even after imposition of a consecutive sentence, and the court accepted counsel’s
explanation for the inconsistency, namely, that counsel made the argument in
court as a desperate effort in immediate reaction to the heavy sentence that the
court imposed. The court also determined that, regardless of whether counsel may
have performed deficiently by giving conflicting advice, Natcone did not meet his

5
No. 2023AP1945-CR

burden of showing any resulting prejudice because Natcone was aware that “he
was facing up to sixty years” with a maximum confinement period of forty years,
and the court imposed a sentence of less than one-half the possible period of
confinement.

¶10 Natcone appeals.

DISCUSSION

¶11 “The circuit court has discretion to determine whether a plea should
be withdrawn.” State v. Taylor, 2013 WI 34, ¶48, 347 Wis. 2d 30, 829 N.W.2d
482. After sentencing, a defendant seeking to withdraw a guilty or no-contest plea
bears the burden of establishing by clear and convincing evidence that failure to
withdraw the plea amounts to a manifest injustice.4 See id.; State v. Thomas, 2000
WI 13, ¶16, 232 Wis. 2d 714, 605 N.W.2d 836. Given that the presumption of
innocence no longer exists after such a plea is finalized, we will not disturb the
plea unless a defendant satisfies the high standard of showing a serious flaw in its
fundamental integrity. Thomas, 232 Wis. 2d 714, ¶16.

4
At times, Natcone’s briefing conflates the legal standard applicable to his motion for
post-sentencing plea withdrawal based on alleged ineffective assistance of trial counsel with
standards applicable in much different situations. For example, the “Statement of the Issues” in
his opening brief identifies the issue on appeal as whether “the State [met] its burden of proof to
show that Natcone’s plea was knowing and voluntary.” That is the standard to be applied at an
evidentiary hearing after a defendant has met the requirements of a Bangert motion based on an
allegedly defective plea colloquy. See, e.g., State v. Howell, 2007 WI 75, ¶¶28-29, 301 Wis. 2d
350, 734 N.W.2d 48; State v. Bangert, 131 Wis. 2d 246, 274, 389 N.W.2d 12 (1986). Natcone
never made a motion under Bangert or alleged that a deficiency in the plea colloquy resulted in
his plea not being knowing, intelligent, and voluntary. As Natcone acknowledges elsewhere in
his brief, it is his burden to show that plea withdrawal is necessary to correct a manifest injustice,
and in this case it is not the State’s burden to show that his plea was knowing and voluntary
because that issue has not been raised.

6
No. 2023AP1945-CR

¶12 Demonstrating that a defendant’s counsel rendered ineffective
assistance, as Natcone attempts to do, is one way to show a manifest injustice
under the case law. See Taylor, 347 Wis. 2d 30, ¶49. A defendant seeking to
withdraw a post-sentencing plea on this basis must satisfy the two-prong test
established in Strickland v. Washington, 466 U.S. 668 (1984). State v. Bentley,
201 Wis. 2d 303, 311-12, 548 N.W.2d 50 (1996). The defendant must establish
that counsel’s performance was both deficient, falling outside the range of
objectively reasonable attorney representation, and prejudicial, adversely affecting
the outcome of the proceeding. See State v. Mull, 2023 WI 26, ¶¶35, 37, 406
Wis. 2d 491, 987 N.W.2d 707. In the context of post-sentencing plea withdrawal,
the prejudice prong of the test is satisfied only when the defendant shows a
reasonable probability that “‘he would not have pleaded guilty [or no contest] and
would have’” exercised the right to trial absent counsel’s errors. Bentley, 201
Wis. 2d at 312 (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

¶13 Whether trial counsel’s actions constitute ineffective assistance is a
mixed question of fact and law. State v. O’Brien, 223 Wis. 2d 303, 324, 588
N.W.2d 8 (1999). We uphold the circuit court’s findings of fact unless they are
clearly erroneous. Id. at 324-25. Whether counsel’s conduct amounted to
ineffective assistance, however, is a question of law that we review independently.
Id. at 325.

¶14 Natcone argues that trial counsel allegedly misinforming him that he
would receive a sentence credit of 916 days if he accepted the plea agreement—
even if the circuit court imposed a consecutive sentence—satisfies the deficiency
prong of the Strickland test. Natcone acknowledges the court’s finding that
counsel credibly testified that he told Natcone the sentence credit would apply
only “if he got a concurrent sentence,” but Natcone points to conflicting evidence

7
No. 2023AP1945-CR

in the record and argues that this finding was clearly erroneous. Specifically,
according to Natcone, counsel’s argument for credit at sentencing and counsel’s
postsentencing letter admitting to a mistaken understanding of the issue show that
counsel did, in fact, misinform him about the applicability of the sentence credit.

¶15 We need not resolve the issue of whether Natcone shows deficient
performance because Natcone’s argument regarding the prejudice prong of the
Strickland test is lacking. See O’Brien, 223 Wis. 2d at 324 (“Under the
Strickland test, if the defendant has failed to show prejudice, this court need not
address the deficient performance prong.”). The following is the entire prejudice
argument in his opening brief, which is a verbatim reproduction of the argument
made in his brief to the circuit court:

Natcone suffered prejudice as a result of trial counsel’s
misinformation as he was not credited the 916 days of jail
credit against the sentence in this case. The misinformation
is something Natcone relied upon in entering the plea in
this case. He testified at the postconviction hearing that he
would not have entered a plea and would have gone to trial
had he [known] he was not going to receive the 2 1/2 years
of jail credit.

¶16 In the first sentence of this paragraph, Natcone seems to argue that
he was prejudiced because he did not receive sentence credit. Yet, it is undisputed
that Natcone was not entitled to the sentence credit under these facts. Because
Natcone would not have received the credit regardless of his counsel’s advice, the
first sentence of his argument has no bearing on our analysis of prejudice.

¶17 Turning to the rest of Natcone’s argument, his postconviction
testimony is the only evidence he cites. It is not enough to carry his burden to
show that he would have decided to go to trial but for counsel’s alleged
misinformation. See Hill, 474 U.S. at 59; Bentley, 201 Wis. 2d at 312. As the

8
No. 2023AP1945-CR

United States Supreme Court has directed, we “should not upset a plea solely
because of post hoc assertions from a defendant about how [they] would have
pleaded but for [their] attorney’s deficiencies.” Lee v. United States, 582 U.S.
357, 369 (2017); see also State v. Savage, 2020 WI 93, ¶33-35, 395 Wis. 2d 1,
951 N.W.2d 838. Instead, a defendant has two options to substantiate such
testimony: either “contemporaneous evidence” that the defendant placed particular
importance on the subject of the misinformation or a showing that the defense
would likely have succeeded at trial. Savage, 395 Wis. 2d 1, ¶35.

¶18 Natcone fails to show either option. In his reply brief, he points only
to “communications of trial counsel that were admitted into the record [and] show
counsel’s attempts to get Natcone to take a deal.” Although Natcone does not in
his reply brief identify these communications in the record or describe them with
any particularity, he appears to be referring to the four letters attached as exhibits
to his postconviction motion. The letters do not show any connection between the
sentence credit Natcone allegedly believed he would get and Natcone’s decision to
accept the plea agreement. Indeed, none of the three letters sent before sentencing
even mention sentence credit, and the fourth letter—sent after sentencing—is the
one already discussed in which counsel acknowledged that credit could not be
applied to Natcone’s consecutive sentence.

¶19 Nor do the letters support any argument that the defense would
likely have succeeded at trial. Indeed, the letters reflect counsel’s pessimistic
assessment of the likelihood of mounting a successful defense in view of the
State’s evidence, and one letter refers to Natcone’s “agree[ment] that this was not
a triable case.”

9
No. 2023AP1945-CR

¶20 For all these reasons, Natcone does not come close to showing either
that the issue of sentence credit was important to his decision to enter a plea or that
he had a viable defense. Therefore, we affirm the circuit court’s denial of
Natcone’s postconviction motion because he has not satisfied the prejudice
component of the Strickland test for ineffective assistance.

¶21 We turn to an argument that Natcone seems to attempt at times but
does not fully develop. This would be the contention that he should be allowed to
withdraw his plea because it was “not knowingly entered where he relied on trial
counsel’s misinformation” or “not voluntarily entered where he was unaware of
the maximum sentence he could serve.”5 Separate from ineffective assistance of
counsel, “show[ing] that the defendant did not enter [a] plea knowingly,
intelligently, and voluntarily” is another way to demonstrate a manifest injustice
warranting plea withdrawal. State v. Dillard, 2014 WI 123, ¶37, 358 Wis. 2d 543,
859 N.W.2d 44; Taylor, 347 Wis. 2d 30, ¶¶24-25. But even if Natcone had
sufficiently developed this argument, it fails.

¶22 In Dillard, our supreme court directed the circuit court to permit a
defendant to withdraw his plea because it was based on misinformation and
therefore not knowing, intelligent, and voluntary. Dillard, 358 Wis. 2d 543, ¶9.
In that case, when the defendant was deciding whether to accept the State’s plea
offer or go to trial, the prosecution, the circuit court, and his trial counsel all
stated—mistakenly—that he was facing a persistent repeater enhancer that could

5
Natcone took a similar approach before the circuit court, arguing that the court should
allow him to withdraw his plea because the plea “was not knowingly entered where he relied on
trial counsel’s misinformation as to the application of jail time credit in this case.” But this
statement was made strictly in the context of Natcone’s ineffective assistance argument.

10
No. 2023AP1945-CR

result in a mandatory life sentence if he did not accept the plea. Id., ¶¶3, 48. That
is, the defendant in Dillard was operating under the false impression that the State
was offering him, through the plea, a chance to avoid a mandatory life sentence.
See id. Further, postconviction testimony from both the defendant and trial
counsel was clear and consistent that the defendant’s primary motivation for
entering the plea agreement was to eliminate the possibility of a mandatory life
sentence. See id., ¶¶41, 44-48, 62.

¶23 In contrast here, the value of the State’s offer to Natcone was the
dismissal of all the other charges filed against him, and Natcone fails to show that
the offer was related to the issue of sentence credit. And, in Natcone’s case, there
is no evidence that sentence credit was a factor in Natcone’s acceptance of the plea
other than his own post hoc and conclusory testimony, which, as we have already
explained, we are to view with skepticism. Natcone has not developed an
argument sufficient for us to conclude that his plea was not knowing and
voluntary.

¶24 In sum, Natcone’s failure to demonstrate that he would have gone to
trial absent his counsel’s alleged incorrect advice that he would receive sentence
credit in this case is fatal to his postconviction motion. He has not shown that
withdrawal of his guilty plea is necessary to avoid a manifest injustice. See
Taylor, 347 Wis. 2d 30, ¶49.

CONCLUSION

¶25 For all of these reasons, we affirm the judgment of conviction and
the circuit court’s order denying Natcone’s postconviction motion for relief.

By the Court.—Judgment and order affirmed.

11
No. 2023AP1945-CR

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

12