COURT OF APPEALS

DECISION

DATED AND FILED

March 14, 2023

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2022AP706-CR Cir. Ct. No. 2018CF255

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

MITCHELL LANE BUTLER,

 DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for 

Burnett County: MELISSIA R. MOGEN, Judge. Affirmed. 

Before Stark, P.J., Hruz and Gill, 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). 

¶1 PER CURIAM. Mitchell Butler appeals a judgment convicting him 

of two counts of physical abuse of a child (intentionally causing great bodily 
No. 2022AP706-CR

2

harm), with one of the counts as a party to the crime. Butler also appeals an order 

denying his postconviction motion for plea withdrawal. Butler argues that he 

should be permitted to withdraw his no-contest pleas because his trial attorney was 

constitutionally ineffective for failing to investigate Butler’s alibi defense. Butler 

further argues that the circuit court erred by denying his postconviction motion 

without holding a hearing. We conclude that the court properly denied Butler’s 

postconviction motion without a hearing. We therefore affirm.

BACKGROUND

¶2 On December 10, 2018, the State filed a criminal complaint charging 

Butler with four counts of first-degree sexual assault of a child under the age of 

twelve, with Count 2 charged as a party to the crime. The charging period for all 

four counts was March 16, 2015, until June 13, 2015. Mary was the victim of 

Counts 1 and 2, while Sara was the victim of Counts 3 and 4.1

¶3 The complaint alleged that during a forensic interview in May 2018, 

Mary disclosed that “around Christmas” in “maybe 2015,” Butler drugged her and 

then sexually assaulted her while she was asleep. Mary also disclosed a second 

incident, during which Butler forced another child to “put his dick in [Mary’s] 

vagina.” During a separate forensic interview in April 2018, Sara disclosed that 

Butler had touched her vagina with his hands and penis and had put his fingers and 

penis in her “butthole.” Sara later stated during another forensic interview that

 

1

 Pursuant to the policy underlying WIS. STAT. RULE 809.86(4) (2021-22), we refer to 

the victims in this matter using pseudonyms. All references to the Wisconsin Statutes are to the 

2021-22 version unless otherwise noted.
No. 2022AP706-CR

3

these events occurred during the school year, when there was no snow on the 

ground and it was warm outside.

¶4 On June 26, 2019, the State filed an Information that contained the 

same four charges as the criminal complaint. The Information, however, listed the 

date of each offense as January 1, 2015.

¶5 On August 28, 2019, the State filed an amended Information that 

eliminated Count 4—one of the charges pertaining to Sara. The amended 

Information listed the charging periods for the three remaining counts

as: September 1, 2015, through October 1, 2015 (Count 1); June 1, 2015, through 

July 30, 2015 (Count 2); and August 25, 2015, through October 1, 2015 (Count 3).

¶6 On the same day that the amended Information was filed, the circuit 

court held a motion hearing on the admissibility of Mary’s and Sara’s forensic 

interviews. The court ruled that those interviews could be played at trial, finding 

that there were no signs of “deceit or falsity in either of [the] children.” The court 

noted that while the children were not able to give “exact time[s]” when the 

assaults occurred, “they were able to communicate their ages, where the assaults 

took place, what they were wearing, what the Defendant was wearing and at least 

the seasons of the years in which the assaults did allegedly take place.” The court 

stated that these “specific statements” provided “great credibility” for the victims’ 

allegations.

¶7 The prosecutor then reminded the circuit court that the State had 

previously filed an Information that did not “track the dates on the Criminal 

Complaint.” The prosecutor also informed the court that, earlier that day, the State 

had filed an amended Information that “took away one count” and “also changed 

the dates from when the events took place.” The prosecutor continued, “But I 
No. 2022AP706-CR

4

think you indicated that was irrespective of your decision in terms of how long it 

was. All of the assaults would have taken place within the fairly close proximity 

of time to each other.”

¶8 Two days later, on August 30, 2019, the State filed a second 

amended Information containing four charges: first-degree sexual assault of a 

child under the age of twelve (Count 1); physical abuse of a child (intentionally 

causing great bodily harm, as a party to the crime) (Count 2); first-degree sexual 

assault of a child under the age of twelve (Count 3); and physical abuse of a child 

(intentionally causing great bodily harm) (Count 5).2 Mary was the victim of 

Counts 1 and 2, while Sara was the victim of Counts 3 and 5. The second 

amended Information listed a charging period of June 1, 2015, through July 30, 

2015, for Counts 1 and 2, and a charging period of August 25, 2015, through 

October 1, 2015, for Counts 3 and 5. The State asserts, and Butler does not 

dispute, that the second amended Information “was filed to reflect the parties’ 

negotiated plea agreement.”

¶9 Four days later, on September 3, 2019, the circuit court held a plea 

hearing, during which Butler entered no-contest pleas to Counts 2 and 5—the two 

physical abuse of a child charges—pursuant to a plea agreement. In exchange for 

Butler’s pleas, the State agreed that Counts 1 and 3 would be dismissed and read 

in. The State also agreed to recommend “no additional incarceration time.”

¶10 During the plea colloquy, the circuit court inquired whether Butler 

was satisfied with his trial attorney’s performance. Butler stated: that his attorney 

 

2

 The second amended Information did not contain a Count 4.
No. 2022AP706-CR

5

had represented him competently, had answered all of his questions, had reviewed 

his case thoroughly, had kept in communication with him, had looked for any 

possible defenses, and had negotiated the case to his satisfaction. Butler further 

stated that he was satisfied with his attorney’s services and that he did not believe 

those services were lacking in any way.

¶11 The circuit court then asked Butler whether he remembered “what 

happened between June 1, 2015 and July 30, 2015 as it relates to [Mary].” Butler 

responded that he did not remember. Butler subsequently confirmed that he had 

read the criminal complaint, but he denied that the facts alleged in the probable 

cause section were accurate. Butler later agreed, however, that he had 

intentionally caused great bodily harm to Mary between June 1 and July 30, 2015, 

and to Sara between August 25 and October 1, 2015. See WIS JI—

CRIMINAL 2108 (2009) (listing the elements of physical abuse of a child 

(intentionally causing great bodily harm)). Butler further agreed that there was 

sufficient evidence for the State to prove Counts 2 and 5 beyond a reasonable 

doubt.

¶12 The circuit court found that there was an adequate factual basis for 

Butler’s no-contest pleas, and it further found that Butler’s pleas were knowing, 

intelligent, and voluntary. The court therefore accepted Butler’s pleas and found 

him guilty of Counts 2 and 5. Counts 1 and 3 were dismissed and read in.

¶13 The circuit court ultimately sentenced Butler to consecutive 

thirty-year terms, each comprised of twenty years of initial confinement followed 

by ten years of extended supervision. Butler then moved for postconviction relief, 

arguing that he should be permitted to withdraw his no-contest pleas because his 

trial attorney was constitutionally ineffective by failing to investigate Butler’s alibi 
No. 2022AP706-CR

6

defense.3 Specifically, the motion asserted that Butler was in custody in the 

Burnett County Jail from June 3, 2015, until September 24, 2015, and was in the 

Department of Corrections’ (DOC) custody from September 24, 2015, onward.4 

The motion therefore claimed that Butler “could not possibly have committed” 

Count 5 because he was in custody for the entire charging period for that 

offense—i.e., from August 25 to October 1, 2015.

¶14 As for Count 2, which had a charging period of June 1, 2015, to 

July 30, 2015, Butler’s postconviction motion asserted that he was in custody from 

June 3 onward, which left “only June 1, 2015 through Mr. Butler being taken into 

custody on June 3, 2015 to have committed that offense.” Butler further asserted 

that he was at his uncle’s residence, which was not the residence where Count 2 

allegedly took place, from March 2015 until he was taken into custody on June 3. 

Butler submitted an investigator’s report in support of his claim that he was at his 

uncle’s house on those dates.

¶15 Butler also submitted an affidavit in support of his postconviction 

motion, in which he averred that he told his trial attorney that he had an alibi for 

the charges against him, but his trial attorney failed “to follow through with 

investigating this information.” Because of trial counsel’s failure to investigate, 

Butler alleged that he had “no way to defend [himself] from these allegations.” 

 

3

 Butler’s postconviction motion also asserted that Butler should be permitted to 

withdraw his pleas based on newly discovered evidence and in the interest of justice. Butler does 

not renew those arguments on appeal, and we therefore deem them abandoned. See A.O. Smith 

Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588 N.W.2d 285 (Ct. App. 1998).

4

 An email from the Burnett County Sheriff’s Office and a printout from the DOC’s 

website were attached to Butler’s postconviction motion to support his assertions about the 

periods of time that he spent in custody.
No. 2022AP706-CR

7

Butler asserted that he chose to accept the State’s plea offer because his attorney 

“did not follow through with [his] request to investigate the alibi defense.” Butler 

further averred, “I would have chosen to go to trial had my attorney investigated 

this alibi defense.”

¶16 The State asked the circuit court to deny Butler’s postconviction 

motion without a hearing, arguing that the motion did not allege sufficient facts 

that, if true, would entitle Butler to relief. The court agreed and denied Butler’s 

motion without holding a hearing. First, the court concluded that the allegations in 

Butler’s motion, if true, were insufficient to show that his trial attorney performed 

deficiently by failing to investigate the alibi defense. The court reasoned that 

Butler had merely alleged that he told his trial attorney that he had an alibi, but 

Butler did not allege that he told his attorney “the names of the [alibi] witnesses, 

what their statements would show, where he was during the dates in question, 

when each would confirm he was with them and when, or how to locate the 

witnesses to interview them and how their statements would assist in his defense.” 

The court stated that a lawyer “cannot be ineffective for failing to pursue 

something that [the] defendant knew, but did not reveal.”

¶17 The circuit court also concluded that the allegations in Butler’s 

postconviction motion were insufficient to establish prejudice. The court noted 

that the alibi witnesses interviewed by the defense investigator after Butler’s 

conviction “could not provide any specific details about anything occurring at any 

particular or specific dates” and could “only provide generalities as to an alibi.” 

Ultimately, the court concluded that the alibi witnesses’ testimony would have 

been “weak” and would have “shown that there were at least three ... days in 

which [Butler] was not incarcerated and ... had the ability to commit the crimes 

against the children.”
No. 2022AP706-CR

8

¶18 Butler now appeals, arguing that the circuit court erred by denying 

his postconviction motion without a hearing.

DISCUSSION

¶19 A circuit court is not required to hold a hearing on every motion for 

postconviction relief. See State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 

N.W.2d 433. If a postconviction motion “on its face alleges sufficient material 

facts that, if true, would entitle the defendant to relief,” then the court must hold a 

hearing. Id. “However, if the motion does not raise facts sufficient to entitle the 

movant to relief, or presents only conclusory allegations, or if the record 

conclusively demonstrates that the defendant is not entitled to relief, the circuit 

court has the discretion to grant or deny a hearing.” Id. Whether a postconviction 

motion alleged sufficient facts to entitle the defendant to a hearing is a question of 

law that we review independently. Id.

¶20 In this case, Butler filed a postconviction motion seeking to 

withdraw his no-contest pleas based on the ineffective assistance of his trial 

attorney. A defendant seeking to withdraw a guilty or no-contest plea after 

sentencing must prove, by clear and convincing evidence, that a refusal to allow 

plea withdrawal would result in manifest injustice. State v. Taylor, 2013 WI 34, 

¶¶24, 48, 347 Wis. 2d 30, 829 N.W.2d 482. One way that a defendant can 

establish manifest injustice is by showing that his or her trial attorney was 

constitutionally ineffective. Id., ¶49.

¶21 To prevail on an ineffective assistance of counsel claim, a defendant 

must show both that his or her attorney performed deficiently and that counsel’s 

deficient performance prejudiced the defense. State v. Ortiz-Mondragon, 2015 

WI 73, ¶32, 364 Wis. 2d 1, 866 N.W.2d 717. To prove deficient performance, a
No. 2022AP706-CR

9

defendant must show that counsel’s representation fell below an objective standard 

of reasonableness. Id., ¶52. To establish prejudice in the context of a motion for 

plea withdrawal, a defendant must show a reasonable probability that, but for 

counsel’s errors, the defendant would not have entered a guilty or no-contest plea

and “would have insisted on going to trial.” State v. Bentley, 201 Wis. 2d 303, 

312, 548 N.W.2d 50 (1996) (citation omitted). If a defendant fails to establish one 

prong of the ineffective assistance analysis, a court need not address the other 

prong. State v. Sanders, 2018 WI 51, ¶30, 381 Wis. 2d 522, 912 N.W.2d 16.

¶22 Here, we conclude that the circuit court properly denied Butler’s 

postconviction motion without a hearing because the record conclusively shows 

that Butler is not entitled to relief. Specifically, the record conclusively shows that 

Butler was not prejudiced by his trial attorney’s alleged error.

¶23 Initially, we note that in his postconviction motion, Butler asserted 

that “but for trial counsel’s failure to investigate his alibi defense, [Butler] would 

have insisted on going to trial.” In his affidavit in support of the motion, Butler 

similarly averred that he “would have chosen to go to trial had [his] attorney 

investigated this alibi defense.” Butler further averred that he “felt stuck” and 

“chose to follow through with the plea to reduced charges only because [his] 

attorney did not follow through with [his] request to investigate the alibi defense.”

¶24 The record, however, belies these assertions. During the plea 

colloquy, Butler told the circuit court that his trial attorney had represented him 

competently, had answered all of his questions, had reviewed his case thoroughly, 

and had looked for any possible defenses. Butler also told the court that he was 

satisfied with his attorney’s services and did not believe that those services were 

lacking in any way. In addition, Butler admitted during the plea colloquy that he 
No. 2022AP706-CR

10

had committed the offenses in question on the dates alleged in the second 

amended Information. Thus, the record shows that Butler was aware of the dates 

at issue. According to Butler’s postconviction motion, he was also aware of his 

possible alibi defense and was aware that counsel had allegedly failed to 

investigate that defense. If Butler believed at the time he entered his pleas that he 

had a viable defense to the charges, which his attorney had failed to investigate, 

then it was incumbent upon him to make the court aware of those facts. Butler’s 

postconviction motion does not explain his failure to do so.

¶25 Notwithstanding the above, even if Butler had demonstrated that his 

counsel performed deficiently, the record conclusively shows that Butler was not 

prejudiced by his counsel’s alleged failure to investigate the alibi defense, given 

the weakness of that defense and the substantial benefits that Butler received as a 

result of accepting the State’s plea offer. Butler asserts that he could not have 

committed the crimes to which he pled because he was in custody during the entire 

charging period for Count 5 and during all but two or three days of the charging 

period for Count 2. Butler further asserts, based on his investigator’s report, that 

three witnesses would have testified that Butler was at his uncle’s residence—

which was not the location where the crimes allegedly occurred—during the 

remaining two or three days when he was not in custody.

¶26 Butler’s alibi defense presumes that the charging periods set forth in 

the second amended Information were correct and that, if Butler had gone to trial, 

the State’s evidence would have shown that he assaulted the victims during those 

time periods. The record shows, however, that before Butler entered his 

no-contest pleas, there was significant uncertainty as to when the offenses actually 

occurred. Initially, the criminal complaint alleged that the offenses occurred 

between March 16, 2015, and June 13, 2015. The Information, however, listed the 
No. 2022AP706-CR

11

date of each offense as January 1, 2015. Thereafter, the amended Information 

listed the charging periods for Counts 1, 2, and 3, respectively, as: September 1, 

2015, through October 1, 2015; June 1, 2015, through July 30, 2015; and 

August 25, 2015, through October 1, 2015.

¶27 On the same day that the amended Information was filed, the State 

admitted during a motion hearing that the dates alleged in the Information did not 

“track the dates on the Criminal Complaint.” The State further acknowledged that 

the amended Information again contained different dates. The State subsequently

filed the second amended Information, which again changed the charging periods 

to: June 1, 2015, through July 30, 2015 (Counts 1 and 2); and August 25, 2015, 

through October 1, 2015 (Counts 3 and 5).

¶28 Regardless of these discrepancies in the charging documents 

regarding the relevant dates, it is undisputed that during her forensic interview, 

Mary stated that Butler had assaulted her “around Christmas” in “maybe 2015.” 

The DOC printout attached to Butler’s postconviction motion shows that he was in 

custody at Oshkosh Correctional Institution from November 13, 2015, until 

February 15, 2016. However, Mary did not definitively state that Butler had 

assaulted her around Christmas in 2015; she stated that he had assaulted her 

around Christmas in “maybe 2015.” Thus, the fact that Butler was incarcerated in 

December 2015 does not show that he could not have assaulted Mary. Notably, 

neither the DOC printout nor the email from the Burnett County Sheriff’s Office 

attached to Butler’s postconviction motion shows that Butler was in custody 

during December 2014. Given Mary’s age and the time that elapsed between the 

assaults and the date of Mary’s forensic interview, it is understandable that Mary 

may have been unsure as to whether the assault in question occurred in 2014 or 

2015.
No. 2022AP706-CR

12

¶29 It is also undisputed that Sara told a forensic interviewer that Butler 

had assaulted her during the school year, when there was no snow on the ground 

and it was warm outside. While that time period could have corresponded to the 

charging period for Counts 3 and 5 alleged in the second amended Information, it 

also could have corresponded to a different time period for which Butler did not 

have an alibi—for instance, the spring of 2015, or the spring or fall of 2014.

5

¶30 The circuit court ruled that both girls’ forensic interviews would be 

admissible at trial. Furthermore, the prosecutor indicated that he intended to play 

the interviews at trial. Accordingly, if Butler had chosen to go to trial, the jury 

would have heard the victims’ own descriptions of when the offenses occurred—

descriptions that did not necessarily align with the dates for which Butler had an 

alibi. Moreover, the court’s pretrial rulings strongly indicate that the court would 

have permitted the State to amend the charging periods alleged in the second 

amended Information to conform to the evidence introduced at trial. Notably, the 

 

5

 In his postconviction motion, Butler asserted—without any supporting citation—that he 

was “released from custody in March 2015.” However, the documents attached to the 

postconviction motion do not support that assertion. The DOC printout shows that Butler was 

released from DOC custody on July 6, 2004, and was not returned to DOC custody until 

September 24, 2015. The email from the Burnett County Sheriff’s Office states that Butler was in 

custody in the Burnett County Jail for 118 days during 2015—specifically, from June 3, 2015, to 

September 24, 2015, and from October 12, 2015, to October 15, 2015. Thus, the record does not 

support Butler’s claim that he was released from custody in March 2015.

Furthermore, even if Butler was released from custody in March 2015, there is no 

information in the record as to how long he was in custody before his release. Thus, there is no 

information in the record to preclude a conclusion that Butler assaulted one or both girls earlier in 

2015. 

In addition, Butler’s postconviction motion and the attached documents do not establish 

an alibi for the entire time period between March 2015 and June 3, 2015. Notably, none of the 

three witnesses who were interviewed by the defense investigator were able to state that Butler 

was at his uncle’s residence for the entire time period between March 2015 and June 3, 2015, and 

never left his uncle’s residence during that time.
No. 2022AP706-CR

13

court found that the victims’ allegations were credible, even though they were not 

able to give “exact time[s]” when the assaults occurred, because “they were able to 

communicate their ages, where the assaults took place, what they were wearing, 

what the Defendant was wearing and at least the seasons of the years in which the 

assaults did allegedly take place.” Thus, contrary to Butler’s belief, his alibi 

defense would not actually have shown that he could not have committed the 

crimes charged.

¶31 Additionally, Butler received significant benefits under the plea 

agreement. His total sentencing exposure under the amended Information—the 

operative charging document before the parties reached their plea agreement—was 

180 years of imprisonment. By accepting the State’s plea offer, Butler reduced his 

total sentencing exposure to eighty years of imprisonment. He also secured the 

State’s agreement to recommend “no additional incarceration time.” We agree 

with the State that Butler “utterly fails to explain why he would have given up the 

substantial benefit of the plea agreement to face 100 additional years of 

incarceration exposure.” Given the weakness of Butler’s alibi defense, it is not 

reasonably probable that, absent his trial attorney’s alleged error, Butler would 

have rejected the benefits that he received under the plea agreement and would 

have instead chosen to go to trial. See Bentley, 201 Wis. 2d at 312. 

¶32 For the reasons explained above, we conclude the record 

conclusively shows that Butler cannot establish the prejudice prong of his 

ineffective assistance claim. Accordingly, the circuit court properly denied 

Butler’s postconviction motion without a hearing.
No. 2022AP706-CR

14

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.