Belk moved for a new trial based on multiple allegations of ineffective assistance of trial counsel. The circuit court denied the motion without a hearing, but the court of appeals sends the case back for a hearing on one of the claims.
Belk was convicted of six crimes arising out of a fatal traffic accident. (¶¶1, 4, 7-8). His postconviction motion argued trial counsel was ineffective for, among other things, failing to investigate and present the testimony of Alston, a witness who disputed the state’s evidence as to two of the crimes (hit and run resulting in death). (¶¶2, 9). The circuit court concluded that failing to investigate and call Alston didn’t prejudice Belk because other credible witnesses contradicted Alston’s account, so his testimony wouldn’t have altered the outcome of the trial. (¶12).
The court of appeals rightly rejects this conclusion. While two officers testified to a version of events that supports the conclusion that Belk was attempting to flee the scene or hide from police (¶18), Alston’s affidavit told a very different story. Alston said he saw Belk, who appeared disoriented from the crash, try to talk to M.B., one of the occupants of the other car involved. He said Belk then approached Alston, who was on his porch, in an apparent bid to get help, and that Belk complied with officers’ orders to come down off the porch (¶¶19-20). Trial counsel never contacted Alston, and while Alston came to the courthouse every day of the trial at the state’s request, he was not called to testify. (¶21).
¶22 A postconviction motion that has pled sufficient material facts to entitle a defendant relief will generally include “the five ‘w’s’ and one ‘h’; that is, who, what, where, when, why, and how.” [State v.] Allen, [2014 WI 106,] 274 Wis. 2d 568, ¶23[, 682 N.W.2d 433]. Belk’s postconviction motion, with Alston’s affidavit attached, includes this requisite information: that Alston would testify to his observations of the accident and—more importantly—of Belk’s conduct after the accident, which would support Belk’s defense theory that he was not attempting to flee the scene of the accident. Although much of the testimony in Alston’s affidavit conflicts with much of the testimony of the officers who were at the scene, as well as M.B.’s testimony—she stated that Belk never came to check on her after the crash—Alston’s credibility “would have been a factor for the jury to consider…. The jury would have had to determine the weight and credibility to assign” to each witness’s testimony. See State v. Jenkins, 2014 WI 59, ¶65, 355 Wis. 2d 180, 848 N.W.2d 786 (citation omitted; ellipses in Jenkins).
While Belk is entitled to a Machner hearing regarding trial counsel’s failure to investigate and potentially call Alston as a witness, he doesn’t fare as well on his other claims, which relate to the convictions on the other four counts. Those claims are that trial counsel failed to litigate a motion filed by predecessor counsel to suppress Belk’s custodial statements; failed to present a defense or challenge the state’s witnesses in various ways; and gave a deficient closing argument. (¶10). The court concludes Belk hasn’t pled sufficient facts in support of these claims, either in terms of their merits or why the failures might matter. (¶¶24-27).
Getting a hearing only on the two hit-and-run convictions still provides potential relief for Belk because it appears the consecutive sentences on those counts govern the other four concurrent sentences. (¶8). That said, there’s some risk in getting a new trial on some counts but not others when some or all of the sentences are concurrent, as illustrated by State v. Tuescher, 226 Wis. 2d 465, 595 N.W.2d 443 (Ct. App. 1999).
Also, Belk made a “resentencing” claim based on Alston’s affidavit, which he apparently characterized as a “new factor.” The circuit court denied resentencing, holding that the affidavit didn’t prove Belk was sentenced based on inaccurate information. (¶¶11-12). According to the court of appeals, Belk has conflated “sentence modification” and “resentencing,” which are distinct concepts. (¶11 n.2). Regardless, the circuit court may have to reassess the sentencing claim based on what happens at the Machner hearing, which will delve more deeply into Alston’s view of events. (¶28 n.4).