State v. Daveonte S. Bell

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.
May 27, 2026
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. 2023AP2033 Cir. Ct. No. 2013CF5431

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DAVEONTE S. BELL,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
FREDERICK C. ROSA, Judge. Affirmed.

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

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. 2023AP2033

¶1 Daveonte S. Bell appeals an order that denied his motion seeking
postconviction relief pursuant to WIS. STAT. § 974.06 (2023-24).1 Because his
claims are procedurally barred, we affirm.

Background

¶2 In 2013, the State filed a criminal complaint charging Bell with five
crimes. The most serious of the charges was first-degree reckless injury, by use of
a dangerous weapon and as a repeat offender. Specifically, the State alleged that
Bell was in a car with a companion when he shot at another vehicle in which C.L.,
Bell’s former girlfriend, was a passenger. The bullet struck C.L.’s spine, paralyzing
her from the waist down. The remaining four charges arose from allegations that,
prior to shooting C.L., Bell threatened and harassed her and shot at her new
boyfriend. The five charges carried an aggregate maximum sentence of 49 years of
initial confinement and 21 years of extended supervision, as well as fines totaling
$152,000.

¶3 The parties engaged in plea negotiations. The State’s final offer was
that, in exchange for Bell’s guilty plea to a charge of first-degree reckless injury,
the State would dismiss and read in the other four charges, thus reducing Bell’s
maximum term of imprisonment to 15 years of initial confinement and 10 years of
extended supervision. See WIS. STAT. §§ 940.23(1)(a), 939.50(3)(d),
973.01(2)(b)4., (d)3. (2013-14). The State further agreed to recommend 10 years
of initial confinement and eight years of extended supervision. Bell did not accept

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

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the proposed resolution, contending that his passenger was the person who shot and
injured C.L. The State revoked the offer.

¶4 The State subsequently amended the original charge of first-degree
reckless injury to include an allegation that Bell was a party to the crime, affecting
the significance of his contention that he was not the gunman. The State also
charged Bell with more crimes, and in March 2014, he proceeded to a jury trial on
a total of seven counts.2 The jury found Bell guilty as charged. At sentencing, Bell
faced maximum penalties totaling 96.5 years of imprisonment and $202,000 in
fines. The circuit court imposed an aggregate 43-year term of imprisonment,
bifurcated as 28 years of initial confinement and 15 years of extended supervision.

¶5 In August 2016, Bell, by postconviction counsel, filed a
postconviction motion under WIS. STAT. RULE 809.30(2)(h) (2015-16), alleging that
his trial counsel was ineffective in conveying the State’s plea offer to him. In
support, he claimed that his trial counsel led him to believe that if he accepted the
State’s proposal, he would face 25 years of confinement rather than 15. He further
alleged that, but for this alleged communication error, he would have accepted the
State’s offer. The circuit court denied the claim without a hearing. Bell appealed,
and we affirmed. State v. Bell (Bell I), No. 2016AP2395-CR, unpublished op. and
order (WI App Jan. 10, 2018). We explained that Bell could not prevail without
showing that his trial counsel’s alleged error prejudiced him, and we concluded that
he had failed to make that showing. Our analysis included a description of matters
relevant to prejudice that Bell did not discuss, among them: (1) what sentence he
believed he might receive after trial and how he weighed that possible sentence
against the offer, id. at 8; (2) how he viewed the strengths and weaknesses of his

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The circuit court dismissed an eighth count as duplicative.

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No. 2023AP2033

defense, id. at 8-9; (3) why he discounted the effect and value of the State’s
recommendation, id. at 9; and (4) what, if anything, demonstrated that he would
have accepted responsibility if trial counsel had performed differently, id. at 9-10.

¶6 Bell retained successor counsel and, in August 2023, he filed a
postconviction motion pursuant to WIS. STAT. § 974.06. In that motion, he sought
an order vacating his convictions and requiring the State to extend the original plea
offer. As grounds, he alleged that his trial counsel was ineffective and that his
original postconviction counsel was ineffective in turn for failing to pursue or
adequately litigate Bell’s available postconviction claims.

¶7 Specifically, Bell first reasserted his claim that his trial counsel was
ineffective in conveying the State’s plea offer. In support of this renewed claim, he
signed an affidavit detailing trial counsel’s alleged actions and inactions, and he
argued that the affidavit supplied the information that we concluded in Bell I should
have been provided to demonstrate trial counsel’s ineffectiveness. Bell then argued
that his original postconviction counsel was ineffective for failing to include this
information in the WIS. STAT. RULE 809.30 motion.

¶8 Bell also claimed that his trial counsel was ineffective for not
“strongly advising Bell to accept the plea offer because he had no defense[.]” In
support of this claim, he submitted a letter that his trial counsel sent to him
approximately nine months before Bell filed his WIS. STAT. RULE 809.30 motion.
In the letter, trial counsel indicated that he was unwilling to represent Bell in the
postconviction proceedings because “it is in your best interest to have another
lawyer represent you.” The letter suggested that another lawyer could argue that
trial counsel “made a mistake,” specifically, that “had [trial counsel] provided
different advice, [Bell] would have accepted [the State’s] offer of 10 years.” Bell

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asserted that this letter revealed trial counsel’s ineffectiveness in advising Bell, and
he argued that his postconviction counsel was ineffective in turn for not using this
letter to support the claim that trial counsel was ineffective.

¶9 The circuit court denied the WIS. STAT. § 974.06 motion without a
hearing, concluding that Bell failed to demonstrate that either his trial counsel or his
original postconviction counsel was ineffective. Bell appeals.

Discussion

¶10 When a defendant files a postconviction motion, the circuit court must
hold a hearing if the motion contains sufficient allegations of material fact that, if
true, would entitle the defendant to relief. State v. Allen, 2004 WI 106, ¶9, 274
Wis. 2d 568, 682 N.W.2d 433. Whether the motion contains such allegations is a
question of law for our independent review. Id. If the postconviction motion does
not include sufficient allegations of material fact that, if true, entitle the defendant
to relief, if the defendant’s allegations are merely conclusory, or if the record
conclusively shows that the defendant is not entitled to relief, the circuit court has
discretion to deny a postconviction motion without a hearing. Id.

¶11 To earn a hearing under the Allen standard, a defendant should
support postconviction claims with specific factual allegations—“e.g., who, what,
where, when, why, and how—that, if true, would entitle him to the relief he seeks.”
Id., ¶2. The defendant must fulfill the Allen pleading requirement as to “every facet
of his claim[s].” State v. Romero-Georgana, 2014 WI 83, ¶¶37-38, 360 Wis. 2d
522, 849 N.W.2d 668. On appeal, this court determines the sufficiency of a
postconviction claim by examining the four corners of the postconviction motion,
not any subsequent brief. Allen, 274 Wis. 2d 568, ¶27.

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No. 2023AP2033

¶12 In the WIS. STAT. § 974.06 motion underlying this appeal, Bell first
claimed that his trial counsel was ineffective for failing to explain the terms of the
proposed plea agreement. Bell also acknowledged that he had previously raised the
same claim in his WIS. STAT. RULE 809.30 motion. “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). The record thus conclusively shows that Bell is
not entitled to relief on his previously litigated claim. The claim is barred.

¶13 Moreover, were we to conclude that Bell’s previously litigated claim
somehow survives the Witkowski bar, we would conclude that the claim fails to
survive the bar imposed by WIS. STAT. § 974.06 and State v. Escalona-Naranjo,
185 Wis. 2d 168, 517 N.W.2d 157 (1994). As the latter case explains, a defendant
who has previously litigated a postconviction motion may not pursue a subsequent
postconviction motion under § 974.06 unless the defendant demonstrates a
sufficient reason for serial litigation. Escalona-Naranjo, 185 Wis. 2d at 185. Here,
Bell asserted that his postconviction counsel’s ineffective assistance in the
proceedings underlying Bell I constitutes a sufficient reason to relitigate the claim
he previously pursued. However, a defendant who seeks to rely on postconviction
counsel’s ineffectiveness as a sufficient reason for an additional postconviction
motion must “make the case of” postconviction counsel’s alleged ineffective
assistance. State v. Balliette, 2011 WI 79, ¶67, 336 Wis. 2d 358, 805 N.W.2d 334.
Bell failed to do so.

¶14 To make the case that postconviction counsel was ineffective, a
convicted person must satisfy the two-prong test set forth in Strickland v.
Washington, 466 U.S. 668 (1984). See Balliette, 336 Wis. 2d 358, ¶28. The test
requires the convicted person to prove both a deficiency in counsel’s performance

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and prejudice as a result. Strickland, 466 U.S. at 687. To prove deficiency, the
person must show that counsel’s actions or omissions “fell below an objective
standard of reasonableness.” Id. at 688. To prove prejudice, the person “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. Whether
counsel’s performance was deficient and whether the deficiency was prejudicial are
questions of law that we review de novo. State v. Reinwand, 2019 WI 25, ¶18, 385
Wis. 2d 700, 924 N.W.2d 184.

¶15 Here, Bell asserted in his WIS. STAT. § 974.06 motion: “[a]s stated in
[Bell I], postconviction counsel did not explain why Bell rejected the plea offer, did
not show how Bell evaluated the risk of rejecting the plea offer, did not say why the
defendant discounted the plea offer, and did not show why Bell was ‘unwilling to
show responsibility.’” Bell then argued that “all of these issues are now explained
in Bell’s motion and affidavit. The fact that the [WIS. STAT. § 974.06] motion and
affidavit now adequately explain the prior failures noted by the court of appeals in
[Bell I] show that prior postconviction counsel was ineffective.” Bell’s arguments
miss the mark because they focus on the wrong attorney.

¶16 In Bell I, we identified information that Bell did not include in his
WIS. STAT. RULE 809.30 motion to support the claim that his trial counsel was
ineffective in conveying the plea offer. Bell sought to supply the omitted
information in his WIS. STAT. § 974.06 motion, but he could not pursue the claim at
all unless he first showed that his postconviction counsel was ineffective in litigating
it originally. See Balliette, 336 Wis. 2d 358, ¶¶62-63. However, the affidavit that
Bell filed in support of his § 974.06 motion said nothing about his interaction with
his original postconviction counsel or the facts surrounding postconviction
counsel’s approach. For example, he did not describe what he told his

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postconviction counsel regarding the issue; or when he provided information about
the issue to his postconviction counsel; or how he supported the information that he
provided to postconviction counsel; or why postconviction counsel’s approach was
wrong in light of whatever specific information Bell provided. Accordingly, Bell
did not show that his postconviction counsel performed deficiently by omitting that
information from the original postconviction motion. Cf. State v. Jones, 2010 WI
App 133, ¶33, 329 Wis. 2d 498, 791 N.W.2d 390 (holding that a lawyer is not
ineffective for not presenting information that the defendant knew but did not
reveal).

¶17 In sum, Bell previously litigated his claim that trial counsel was
ineffective in communicating the State’s plea offer, and relitigation of that claim is
barred by Witkowski. Assuming without so holding that Bell could nonetheless
relitigate the claim upon a showing that his postconviction counsel was ineffective,
then Escalona-Naranjo bars the claim because he failed to make such a showing.

¶18 Bell’s WIS. STAT. § 974.06 motion also raised a claim of trial
counsel’s ineffectiveness that Bell did not previously litigate, namely, that his trial
counsel was ineffective for failing to “strongly advise” Bell to accept the State’s
plea offer. Bell further alleged that his postconviction counsel was ineffective for
failing to raise this claim in his WIS. STAT. RULE 809.30 motion and that
postconviction counsel’s alleged ineffectiveness in this regard constituted a
sufficient reason to raise the claim in a subsequent § 974.06 motion. We again
conclude that Bell failed to demonstrate postconviction counsel’s ineffectiveness,
precluding further review.

¶19 When a defendant claims that postconviction counsel was ineffective
for failing to raise an issue, proof of the deficiency prong of the analysis requires

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No. 2023AP2033

the defendant to allege and show that the neglected issue was “clearly stronger” than
the claims that postconviction counsel pursued. Romero-Georgana, 360 Wis. 2d
522, ¶¶4, 46. The defendant has the burden of demonstrating to the reviewing court
that he or she has satisfied the “clearly stronger” standard. Id., ¶58.

¶20 Bell failed to carry his burden. Demonstrating that a neglected claim
was clearly stronger than claims actually pursued requires a comparison of “the
issue not raised in relation to the issues that were raised[.]” Lee v. Davis, 328 F.3d
896, 900 (7th Cir. 2003). As the circuit court explained here, Bell “offer[ed] no
analysis to show that [his new] claim is clearly stronger than the issue counsel
pursued on appeal.”

¶21 In this court, Bell argues that the circuit court erred, and in support he
directs our attention to portions of his WIS. STAT. § 974.06 motion. Our review
reveals that they reflect Bell’s description of what he perceives to be the merits of
his new claim. Bell, however, was required to analyze the old and the new claims
in relation to each other; he did not. He did not offer a side-by-side examination of
the merits of the two claims, or compare the facts and the law of each claim to show
the greater weight of the latter in comparison to the former. Bell failed to take any
step in his postconviction motion to evaluate the relative strengths and weaknesses
of the two claims and demonstrate that the new claim is “clearly stronger” than the
old. That failure defeats his claim of postconviction counsel’s ineffectiveness and
dooms his serial litigation. “[O]nly when ignored issues are clearly stronger than
those presented, will the presumption of effective assistance of counsel be
overcome.” Smith v. Robbins, 528 U.S. 259, 288 (2000) (quoting Gray v. Greer,
800 F.2d 644, 646 (7th Cir. 1986)). For all the foregoing reasons, we affirm.

By the Court.—Order affirmed.

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

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