State v. Jose G. Espitia Guerrero

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 16, 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. 2023AP2271-CR Cir. Ct. No. 2019CF1569

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JOSE G. ESPITIA GUERRERO,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Kenosha County: BRUCE E. SCHROEDER, Judge. Affirmed.

Before Gundrum, P.J., Neubauer, and Lazar, 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. 2023AP2271-CR

¶1 PER CURIAM. Jose G. Espitia Guerrero appeals from a judgment
of conviction and an order denying his postconviction motion. Espitia Guerrero
claims that his trial counsel was ineffective and that the trial court erred in denying
him an evidentiary hearing pursuant to State v. Machner.1 Based upon our review
of the briefs and Record, we affirm.

¶2 In 2019, police investigated a report that Espitia Guerrero had
repeatedly sexually assaulted his girlfriend’s thirteen-year-old daughter, Amelia,2
during an approximately five-month period. Amelia reported the assaults to her
school counselor and revealed that Espitia Guerrero had touched her private parts
and forced her to engage in sexual acts with him when Amelia’s mother was not
present.

¶3 The State charged Espitia Guerrero with one count of repeated sexual
assault of the same child with at least three violations of first- or second-degree
sexual assault. Espitia Guerrero had a jury trial over four days in October 2021.
The jury found Espitia Guerrero guilty, and the trial court sentenced him to
seventeen years’ initial confinement followed by ten years’ extended supervision.

¶4 Espitia Guerrero filed a postconviction motion seeking an evidentiary
hearing, arguing that he was entitled to a new trial based on ineffective assistance
of trial counsel. The trial court denied the motion without a hearing, concluding
that Espitia Guerrero’s motion was a “classic example of the hindsight analysis

1
92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
2
To protect the identity of the victim, we use a pseudonym. See WIS. STAT.
RULES 809.19(1)(g) and 809.86(4) (2023-24). All references to the Wisconsin Statutes are to the
2023-24 version.

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No. 2023AP2271-CR

which plague[d] a large number of these motions” and credited the State for
addressing the “many shortcomings of the motion.”

¶5 Espitia Guerrero appeals, arguing he is entitled to an evidentiary
hearing because he alleged sufficient facts to prove his trial counsel’s deficient
performance prejudiced him. Specifically, Espitia Guerrero asserts that (1) trial
counsel’s decision to waive an opening statement and (2) the failure to question the
credibility and motive of Amelia on cross-examination amounted to deficient
performance.

¶6 The Sixth and Fourteenth Amendments to the United States
Constitution guarantee criminal defendants 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 asserting an ineffective assistance claim must prove (1) that his counsel’s
performance was deficient and (2) that the deficient performance was prejudicial.
Strickland v. Washington, 466 U.S. 668, 687 (1984). If a defendant fails to prove
one prong of the Strickland test, a court need not consider the other prong. Id. at
697.

¶7 A defendant claiming he received ineffective assistance of counsel is
not automatically entitled to an evidentiary hearing. Balliette, 336 Wis. 2d 358,
¶18. “If the motion raises sufficient facts that, if true, show that the defendant is
entitled to relief, the [trial] court must hold an evidentiary hearing.” Id. However,
if the motion lacks sufficient facts, presents only conclusory allegations, or the
record shows that the defendant is not entitled to relief, the court has the discretion
to grant or deny the motion. Id. (citing State v. Bentley, 201 Wis. 2d 303, 310-11,
548 N.W.2d 50 (1996)). Whether a postconviction motion is sufficient to warrant

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No. 2023AP2271-CR

a hearing “is a question of law, which we review de novo.” Balliette, 336 Wis. 2d
358, ¶18.

¶8 Here, Espitia Guerrero’s postconviction motion alleged that his trial
counsel provided ineffective assistance because (1) he failed to present an opening
statement and (2) he did not cross-examine Amelia about an alleged incident that
could have affected her credibility with the jury and demonstrated motive to lie.
Because Espitia Guerrero’s motion was insufficient with respect to both allegations,
we agree with the trial court’s decision to deny the motion without a hearing.

¶9 Espitia Guerrero’s first claim regarding the lack of an opening
statement was plainly based only on conclusory allegations; his motion did not
sufficiently establish that his trial counsel’s decision to waive an opening statement
“fell below an objective standard of reasonableness.” See State v.
Romero-Georgana, 2014 WI 83, ¶40, 360 Wis. 2d 522, 849 N.W.2d 668 (citation
omitted). Espitia Guerrero merely asserted that “where the evidence of guilt rested
on the credibility of the complaining witness’s testimony,” as it did here, “declining
to give the jury an overview of the evidence and why such evidence would fail to
prove the State’s charges beyond a reasonable doubt, left the jury with only the
State’s version of the evidence.” Therefore, he said, the decision to forego an
opening statement was “clearly” deficient performance.

¶10 Neither of the two cases Espitia Guerrero cites to support this claim
suffices. The first was unpublished, uncitable, and not within an applicable
exception under WIS. STAT. § 809.23(3)(a). In the second, State v. Hineman, 2023
WI 1, ¶¶47-48, 405 Wis. 2d 233, 983 N.W.2d 652, our supreme court reviewed a
case in which a defendant had been granted an evidentiary hearing by the circuit
court after raising four claims of ineffective assistance of counsel, one of which

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No. 2023AP2271-CR

concerned a waived opening statement. That case, however, cuts against
Espitia Guerrero’s argument by holding that waiving an opening statement was a
reasonable trial strategy in that case. See id. The court further noted that courts
addressing the issue “consistently hold that waiving opening statement is an
acceptable trial strategy.” Id., ¶47. While Espitia Guerrero argues on appeal that
choosing not to present an opening statement “cannot always be deemed reasonable
trial strategy,” Hineman makes clear that any claim regarding a waived opening
statement, in and of itself, is not alone a basis for deficient trial performance. See
id. Here, Espitia Guerrero did not tie the lack of an opening statement to other facts
to sufficiently support his first claim. Thus, we conclude that the trial court did not
err in determining that there was no deficient performance on this claim. See State
v. Carter, 2010 WI 40, ¶19, 324 Wis. 2d 640, 782 N.W.2d 695.

¶11 Even if we gave Espitia Guerrero the benefit of the doubt and
concluded that failing to provide an opening statement was deficient performance,
Espitia Guerrero’s motion also failed to demonstrate prejudice on that claim. He
merely stated that he was prejudiced because “counsel’s errors deprived the jury of
the opportunity to learn the theory of the defense until closing argument.” To prove
prejudice, “the defendant must show that [trial counsel’s deficient performance]
actually had an adverse effect on the defense.” Strickland, 466 U.S. at 693.
Additionally, a “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. Espitia Guerrero has failed to do that. His
motion presented only conclusory allegations alleging prejudice without reasonably
tying that to a different trial outcome. This is not sufficient.

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No. 2023AP2271-CR

¶12 Espitia Guerrero’s second claim, based on his allegation that his trial
counsel failed to effectively cross-examine Amelia, is similarly insufficiently pled.
While cross-examining Amelia, Espitia Guerrero’s trial counsel questioned her
about her use of Espitia Guerrero’s credit card without permission. After the trial
court overruled the State’s objection to the question, trial counsel opted not to
inquire further about the credit card and instead questioned Amelia regarding the
discipline she experienced at home. Espitia Guerrero argued that the trial counsel’s
performance was deficient because he “failed to emphasize for the jury that
[Amelia] had a specific instance of discipline by [Espitia Guerrero] which impacted
her credibility and motive.”

¶13 The case relied upon by Espitia Guerrero fails to support his allegation
that when “the theory of the case” centered upon the incredibility of the victim’s
story and a failure to ask questions related to motive established deficient
performance. In State v. Jenkins, 2014 WI 59, ¶59, 355 Wis. 2d 180, 848 N.W.2d
786, the court held that an attorney’s performance was deficient based on the failure
to call “a witness at trial to give testimony contradictory to that of the State’s
eyewitness.” And in Washington v. Smith, 219 F.3d 620, 633-34 (7th Cir. 2000),
the court opined, as our supreme court stated it, that trial counsel’s failure to
question a witness “‘crippl[ed]’ the defendant’s defense by excluding entirely the
testimony that would have most supported the defendant’s theory.” Jenkins, 355
Wis. 2d 180, ¶61. These cases are clearly distinguishable; unlike the witnesses in
those cases, who were not questioned at all, Espitia Guerrero’s trial counsel did
question Amelia. Here, trial counsel’s decision not to continue questioning Amelia
about the credit card fell within the attorney’s discretion regarding strategy.
Espitia Guerrero likely benefited from his trial counsel’s strategy of not re-asking
the question because it allowed the jury to hear the suggestion of credit-card misuse

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No. 2023AP2271-CR

by Amelia without the potential risk of receiving an unhelpful response or
clarification.

¶14 Finally, Espitia Guerrero failed to sufficiently allege that his counsel’s
supposed cross-examination error prejudiced him. His allegation that it “deprived
the jury of the opportunity to hear the potential motive of the complaining witness
or question her credibility” was unsupported. His argument also assumes that
Amelia’s answer would have benefited him. Espitia Guerrero has not established
that, but for the unanswered responses by Amelia, it was reasonably likely that the
jury would have acquitted him despite the strength of the testimony against
Espitia Guerrero. “The likelihood of a different result must be substantial, not just
conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011). Without such a
showing, he cannot establish sufficient prejudice to warrant a hearing.

¶15 Therefore, Espitia Guerrero has failed to establish that the trial court
erred in denying a hearing on his postconviction motion alleging ineffective
assistance of trial counsel. Espitia Guerrero did not show that his trial counsel’s
“representation fell below an objective standard of reasonableness,”
Romero-Georgana, 360 Wis. 2d 522, ¶40 (citation omitted), as to either claim.
Without that, the “strong presumption” of “reasonable professional assistance”
stands. Strickland, 466 U.S. at 689.

By the Court.—Judgment and order affirmed.

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

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