State v. David J. Roberson, 2005 WI App 195
For Roberson: Richard D. Martin, SPD, Milwaukee Appellate
¶11 A circuit court acts within its discretion in denying without a Machnerhearing a postconviction motion based on ineffective assistance of counsel when: (1) the defendant has failed to allege sufficient facts in the motion to raise a question of fact; (2) the defendant has presented only conclusory allegations; or (3) the record conclusively demonstrates that the defendant is not entitled to relief. Nelson v. State, 54 Wis. 2d 489, 497-98, 195 N.W.2d 629 (1972). “If the motion on its face alleges facts that would entitle the defendant to relief, the circuit court has no discretion and must hold an evidentiary hearing.” State v. Bentley, 201 Wis. 2d 303, 310, 548 N.W.2d 50 (1996).
The trial court’s stated basis for denying a Machner hearing – “the court’s own observation of witnesses” who testified at trial but who “were not questioned thoroughly” as to the matter now in dispute – was misplaced, ¶13. However, the record “conclusively demonstrates that Roberson is not entitled to relief” (failure to raise a suppression issue is deemed non-prejudicial because the evidence would have been admissible anyway) and denial of hearing is affirmed on that alternative basis, ¶14.