State v. Robert T. Preston

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.
February 26, 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. 2023AP2209-CR Cir. Ct. No. 2021CF811

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ROBERT T. PRESTON,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Kenosha County: ANTHONY G. MILISAUSKAS, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Grogan, 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. 2023AP2209-CR

¶1 PER CURIAM. Robert T. Preston appeals the judgment of
conviction entered upon his guilty plea to one count of threatening a prosecutor.
He also appeals the order of the circuit court denying his postconviction motion to
withdraw his plea. Preston argues that he received ineffective assistance of
counsel when he pled guilty to the sole charge against him. We affirm.

¶2 The parties do not dispute the following material facts. Preston was
charged with making threats to a prosecutor after he placed several phone calls
explicitly threatening the life of the Kenosha County district attorney and his
family. Pursuant to an agreement with the State, Preston entered a guilty plea to
the charge. After reviewing the presentence investigation report and considering
the parties’ arguments, the circuit court sentenced Preston to three years of
probation, with two years of initial confinement and three years of extended
supervision imposed and stayed. The sentence imposed was consistent with the
plea agreement.

¶3 Eight months later, when the Wisconsin Department of Corrections
(DOC) sought to revoke Preston’s probation, the circuit court ordered a
competency examination for Preston at the request of the administrative law judge
handling Preston’s revocation hearing. The mental health examiner concluded
that Preston was competent to proceed. After the DOC pursued revocation of his
probation, Preston filed a motion and supplemental motion seeking to withdraw
his plea on the basis of ineffective assistance of trial counsel.

¶4 In his postconviction motion, Preston stated that he told his trial
counsel after the plea hearing, but before sentencing, that he wished to withdraw
his plea. Preston asserted that his trial counsel persuaded him not to withdraw his
plea at that time by telling Preston that counsel would request a competency

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No. 2023AP2209-CR

hearing if Preston intended to withdraw his plea. In the context of those
discussions, Preston also raised doubt as to whether all the underlying elements of
the offense were discussed with him and whether those elements were met by
Preston’s conduct. Preston further indicated that he had informed trial counsel of
his desire to freely travel throughout the country for work, but counsel failed to
inform him of the procedural limitations on this freedom of movement while on
probation. The State objected to plea withdrawal. After holding a Machner1
hearing on the plea withdrawal motion, the circuit court denied it on the basis that
Preston failed to establish that his trial counsel was ineffective. Preston appeals.

¶5 “A defendant is entitled to withdraw a guilty plea after sentencing
only upon a showing of a ‘manifest injustice’ by clear and convincing evidence.”
State v. Bentley, 201 Wis. 2d 303, 311, 548 N.W.2d 50 (1996). “[T]he ‘manifest
injustice’ test is met if the defendant was denied the effective assistance of
counsel.” Id.

¶6 “Under the Sixth and Fourteenth Amendments to the United States
Constitution, a criminal defendant is guaranteed the right to effective assistance of
counsel.” State v. Balliette, 2011 WI 79, ¶21, 336 Wis. 2d 358, 805 N.W.2d 334.
A defendant must show two elements to establish that his or her counsel’s
assistance was constitutionally ineffective: (1) counsel’s performance was
deficient; and (2) the deficient performance resulted in prejudice to the defense.
Id. In the context of an argument for plea withdrawal, the prejudice prong
“focuses on whether counsel’s constitutionally ineffective performance affected
the outcome of the plea process.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). “[T]o

1
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2023AP2209-CR

satisfy the ‘prejudice’ requirement, the defendant must show that there is a
reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.” Id.

¶7 “An ineffective assistance of counsel claim presents a mixed
question of fact and law.” State v. Pico, 2018 WI 66, ¶13, 382 Wis. 2d 273, 914
N.W.2d 95. “We will not reverse the circuit court’s findings of fact unless they
are clearly erroneous.” Id. We likewise uphold any “assessments of credibility
and demeanor” by the circuit court unless they are clearly erroneous. State v.
Carter, 2010 WI 40, ¶19, 324 Wis. 2d 640, 782 N.W.2d 695. “We independently
review, as a matter of law, whether those facts demonstrate ineffective assistance
of counsel.” Pico, 382 Wis. 2d 273, ¶13.

¶8 As in the circuit court, Preston argues on appeal that he is entitled to
plea withdrawal. He alleges that trial counsel was ineffective by failing to raise
competency; failing to review discovery, investigate potential defenses, or provide
adequate advice in relation to the decision to enter a guilty plea; coercing Preston
to forego a presentencing plea withdrawal; providing misinformation presentence;
and failing to meet ethical standards of representation.

¶9 Although he acknowledges that plea withdrawal based on ineffective
assistance of counsel is only permissible if a defendant demonstrates both
deficient performance and prejudice resulting therefrom, Preston notably does not
argue that “that there is a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on going to trial.” See
Hill, 474 U.S. at 59. This remains the case even in his reply brief, where Preston
asserts that he was prejudiced, but fails to develop this argument, instead asking
that we remand to the circuit court to determine whether Preston was prejudiced

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No. 2023AP2209-CR

by counsel’s allegedly deficient performance. Because, as we now explain, we
conclude that Preston failed to meet his burden of establishing he was prejudiced
by any assumed deficiency in trial counsel’s performance, we only address the
second prong of the ineffective assistance of counsel analysis. See State v.
Johnson, 153 Wis. 2d 121, 128, 449 N.W.2d 845 (1990) (“[C]ourts may reverse
the order of the two tests or avoid the deficient performance analysis altogether if
the defendant has failed to show prejudice[.]”).

¶10 Both Preston and his trial counsel testified at the hearing on
Preston’s motion for plea withdrawal. The testimony revealed that Preston made a
reasoned decision to proceed to sentencing rather than seek to withdraw the plea
and risk a non-probation sentence. Preston testified that, despite at one point
wishing to withdraw the plea, he “took the [p]lea because it avoided jail time.”
When Preston’s postconviction counsel asked whether Preston was afraid of a
competency evaluation, Preston responded: “I was not afraid. I already passed
one exam in this case. I would have been fine … I was afraid more of the harsher
sentence, the possibility of that.” Postconviction counsel again asked whether the
threat of competency being raised was an “ultimatum,” and Preston again stated,
“Yeah, but I think the ultimate ultimatum was the harsher sentence being imposed
if the [p]lea withdrawal was denied ....” Preston also testified that, “part of the
reason I wanted to withdraw my [p]lea also was I wanted to leave Wisconsin.”

¶11 On cross examination, Preston affirmed that he ultimately entered a
plea to avoid jail time, agreeing that “that was a calculated decision.” Preston
never testified that he wished to withdraw the plea because he wished to take the
case to trial, and he would have done so but for counsel’s deficient performance.
Instead, Preston testified he made a rational decision to accept the plea to

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No. 2023AP2209-CR

maximize the chances he would avoid incarceration and receive probation. Trial
counsel offered a different accounting of the events leading up to the hearing.

¶12 In its oral ruling after the hearing, the circuit court explicitly found
trial counsel’s “testimony credible,” including that counsel never threatened or
coerced Preston into pleading guilty or failing to pursue plea withdrawal before
sentencing. The court further found that Preston had not presented any convincing
evidence that counsel “did anything that would be such a bad omission here that”
it would amount to ineffective assistance of counsel. The court effectively found
that the testimony clearly established that Preston knowingly, voluntarily, and
intelligently pleaded guilty in order to be placed on probation and avoid
incarceration. Preston has not demonstrated that the court’s findings were clearly
erroneous, and upon our independent review, we agree with its analysis.

¶13 As noted, absent on appeal are any allegations that Preston would
have maintained a trial posture if trial counsel had reviewed the elements of the
crimes with Preston in a different manner or generally why Preston would have
insisted on proceeding to trial if the events leading up to his guilty pleas had
proceeded differently. His brief on appeal merely states, without sufficiently
developing facts or arguments in support thereof, that he would have taken the
case to trial if not for the five ways in which his trial counsel’s performance was
purportedly deficient. At best, Preston proclaims that “[Preston] was prejudiced
by trial counsel’s coercion; essentially forcing [him] to waive his right to request a
plea withdrawal, in lieu of trial counsel raising competency.” These bare
allegations are insufficient to establish prejudice on Preston’s claim for plea
withdrawal. Therefore, we conclude that the circuit court did not erroneously
deny Preston’s postconviction motion for plea withdrawal.

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No. 2023AP2209-CR

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5 (2021-22).2

2
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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