Bennett was charged with 1st degree intentional homicide, but pled guilty to 1st degree reckless homicide. In a decision turning on facts specific to this case, the court of appeals affirmed the trial court’s decision denying (a) plea withdrawal without a hearing, (b) sentence modification based on a new factors, and (c) postconviction discovery of evidence that might have affected his sentence.
Motion for plea withdrawal. Bennett admits that he beat and strangled C.S. He pled to 1st degree reckless homicide, which requires the State to prove that he created the risk of death or great bodily harm. Bennett contends that he was unaware that his conduct created a risk of death. He did not allege that he was unaware that his conduct created a risk of great bodily harm. This mistake warranted denial of his motion without a hearing.
¶34 We conclude that Bennett fails to allege sufficient non-conclusory facts that if true, would entitle him to relief. Even if Bennett was unaware that his conduct created a risk that C.S. could die, that does not constitute a defense to the charge because he could still be found guilty of the charge, if he was aware that his conduct created the risk of great bodily harm to C.S. He does not allege that he was not aware that his conduct created a risk of great bodily harm to C.S.—he merely alleges that he was not aware his conduct created a risk she could die.
¶35 Based on that allegation, Bennett makes the conclusory allegation that although he had a defense, trial counsel told him he had no defense and persuaded him to enter his plea. We conclude that Bennett’s conclusory allegations are not sufficient to entitle him to a hearing on his claim that his plea was not voluntary, knowing, and intelligent. See Howell, 301 Wis. 2d 350, ¶¶76-77.
Ineffective assistance of counsel. Bennett claimed that his trial lawyer should not have advised him to plead guilty. The court of appeals disagreed for many reasons. In particular, it noted that Bennett faced life in prison if convicted of 1st degree intentional homicide, and there was strong evidence that he beat C.S. and left her to die, so it was not unreasonable for counsel to advise him to plead to the lesser offense. Opinion ¶¶36-43.
New factor sentence modification. Bennett argued that at sentencing the trial court relied on an “exaggerated understanding of the offense conduct,” relied on a “stereo-typed version of the aggressor-victim dynamic,” and ignored the fact that his conduct was due to C.S.’s infidelity and imperfect self-defense. The problem with this argument? All of this information was known to the sentencing court. According to the court of appeals, Bennett just wanted the circuit court to weigh the information differently. Opinion ¶¶47-48.
Postconviction discovery. Pursuant to State v. O’Brien, 223 Wis. 2d 303, 588 N.W.2d 8 (1999), Bennett sought discovery of C.S.’s medical records for sentencing purposes. He argued that they might show that she was susceptible to intracranial bleeding caused by less intense force than he inflicted, that she bruised easily, that she had a long psychiatric history suggesting she fabricated some of her prior injuries, and that her life expectancy wasn’t as long as the trial court stated. These assertions landed with a thud partly because they ignored expert opinions in the case and partly because if true, they would not create a reasonable probability of a different sentence. Opinion ¶¶55-62.