State v. Allen Donald Kiser

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.
November 6, 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. 2024AP727-CR Cir. Ct. No. 2021CF370

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ALLEN DONALD KISER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Rock
County: KARL HANSON, Judge. Affirmed.

Before Blanchard, Kloppenburg, 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).
No. 2024AP727-CR

¶1 PER CURIAM. Allen Kiser appeals a judgment of conviction and
an order denying his postconviction motion. Kiser argues that he should be
allowed to withdraw his plea because he did not understand the nature of the
charge and because trial counsel was ineffective when counsel informed him about
likely sentencing outcomes. We affirm.

¶2 Kiser pled guilty to one count of first-degree sexual assault of a child
under thirteen years of age. Kiser filed a postconviction motion seeking to
withdraw his plea on the grounds that he did not understand the charge and that his
trial counsel was ineffective by misadvising him about the likelihood that the
sentencing court would impose and stay a sentence or withhold sentence and place
him on probation. The circuit court denied the motion after holding a Machner
hearing.1

¶3 Kiser argues that he should be allowed to withdraw his plea because
the plea colloquy was defective in the way that the circuit court attempted to
establish his understanding of the nature of the charge. His argument is based on
case law establishing that, if the court failed to satisfy a plea colloquy duty, and
the defendant alleges that the defendant did not understand the required
information, the burden shifts to the State to prove by clear and convincing
evidence that the defendant did understand. State v. Howell, 2007 WI 75,
¶¶27-30, 301 Wis. 2d 350, 734 N.W.2d 48.

¶4 For purposes of this appeal, we assume without deciding that the
colloquy was defective, and we focus instead on the circuit court’s findings after

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

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No. 2024AP727-CR

hearing testimony from Kiser and his trial counsel at the Machner hearing. The
court found that it was “not credible” that Kiser did not understand the nature of
the charge, in light of counsel’s explanation to him before the plea hearing, the
plea colloquy, Kiser’s education and experience, and the “simple, direct language”
used in the elements of the charge to which he entered a plea.

¶5 On appeal, Kiser offers little argument about this finding. He
focuses on the fact that, at the plea hearing, the circuit court asked only whether
Kiser had questions about the charge, rather than whether he understood it. Kiser
also notes his lack of prior experience with the criminal justice system. However,
we do not agree that these facts, when viewed in the larger context of the Machner
hearing testimony and the facts found by the court, are enough to demonstrate that
the court’s determination about Kiser’s understanding was clearly erroneous.

¶6 Kiser also argues that he was not informed about the consequences
of two charges that were dismissed and read in. Referring to the evidence
presented at the Machner hearing, the circuit court said:

I find it compelling that Mr. Kiser never said that his
attorney didn’t explain the effect of the dismissed and read
in charges to him. Instead, he simply said more than once
that he doesn’t recall if his attorney explained what the
effect of the dismissed and read in charges would [be]. I
find that [trial counsel] credibly testified that he did explain
to Mr. Kiser the effect of dismissed and read in charges.

¶7 On appeal, Kiser does not make a compelling argument that this
finding by the circuit court was clearly erroneous. He does not dispute the court’s
description of the testimony. Instead, he merely argues that the testimony was not
sufficient to prove his understanding by clear and convincing evidence regarding
his understanding of the consequences of dismissing but reading in the charges at

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No. 2024AP727-CR

sentencing. We conclude that the evidence of Kiser’s understanding was sufficient
to that degree and that, therefore, this is not a basis for plea withdrawal.

¶8 Next, Kiser claims that his trial counsel was ineffective by providing
bad advice about possible sentencing outcomes. At sentencing, Kiser’s attorney
argued for probation, while the State argued for twenty years of total
imprisonment. The circuit court imposed a total imprisonment sentence of fifty
years.

¶9 To establish ineffective assistance of counsel, a defendant must
show that counsel’s performance was deficient and that such performance
prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). We
affirm the circuit court’s findings of fact unless they are clearly erroneous, but the
determinations of deficient performance and prejudice are questions of law that we
review without deference to the circuit court. State v. Pitsch, 124 Wis. 2d 628,
633-34, 369 N.W.2d 711 (1985).

¶10 Kiser argues that, when he entered his guilty plea, he was unaware
that probation was highly unlikely, and contends that his trial counsel “misled”
him by “allow[ing]” him to believe probation was a reasonable possibility.
However, Kiser again fails to come to grips with the circuit court’s unfavorable
findings after the Machner hearing. The court said in part:

I find that trial counsel’s testimony at the Machner hearing
clearly established that he had discussed that [probation]
was a very low probability with Mr. Kiser and that
Mr. Kiser, nonetheless, wanted to pursue probation as the
course of his argument. I find that the totality of the trial
attorney’s testimony is that he warned the defendant
regarding what was possible and what was probable. Trial
counsel also testified credibly at the Machner hearing that
it was Mr. Kiser who wanted to argue for probation.
Mr. Kiser testified as well at our Machner hearing. His
testimony was that it was trial counsel’s decision to argue

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No. 2024AP727-CR

for probation in this matter. I find that testimony was not
credible. I find that the trial counsel[’s] … testimony, was
much more credible in this regard; that it was Mr. Kiser’s
decision that this is something that he wanted to argue for,
despite the fact that [trial counsel] had provided advice and
counsel that he thought it was quote, Going to be an uphill
battle.

(Emphasis in original.)

¶11 Kiser argues that the circuit court gave insufficient weight to trial
counsel’s statement during the Machner hearing that, in hindsight, counsel
believed that he should have told Kiser that probation was “impossible.” But this
was merely counsel’s subjective view at the time of the hearing. Further, the court
expressly noted this particular testimony by counsel, and explained that the court
regarded it as “one statement taken in isolation from the rest of the record.” The
court’s findings that Kiser was aware that probation was unlikely, but still wanted
to argue for it, were not clearly erroneous. Accordingly, this claim of ineffective
assistance was properly rejected.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2023-24).

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