COURT OF APPEALS

DECISION

DATED AND FILED

October 25, 2022

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 Nos. 2018AP1589-CR

2019AP1045-CR

Cir. Ct. Nos. 2014CF4700

2014CF3251

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TERRENCE JEFF CLOYD, JR.,

DEFENDANT-APPELLANT.

APPEALS from judgments and orders of the circuit court for 

Milwaukee County: CLAIRE L. FIORENZA, T. CHRISTOPHER DEE, 

THOMAS J. McADAMS, and DAVID C. SWANSON, Judges. Affirmed. 

Before Dugan, White and Gundrum, 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). 
Nos. 2018AP1589-CR

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2

¶1 PER CURIAM. Terrence Jeff Cloyd, Jr., appeals judgments of 

conviction for multiple drug, weapon possession, and bail jumping charges entered 

upon guilty pleas in two separate cases. He also appeals the two circuit court 

denials of his postconviction motions without a hearing. Cloyd argues that his 

pleas were not knowingly entered because he was not correctly informed of the 

maximum penalty he faced if he went to trial because he was charged with 

multiple penalty enhancers. Further, he contends his trial counsel was ineffective 

for failing to object to the charging of certain penalty enhancers. We reject 

Cloyd’s arguments and we affirm.

BACKGROUND

¶2 These cases arise out of multiple incidents in summer 2014. The 

underlying circuit court cases were consolidated on appeal, and we provide a 

background of relevant facts on each case.1 

I. Milwaukee County Circuit Court case No. 2014CF4700

¶3 According to the criminal complaint in Milwaukee County Circuit 

Court case No. 2014CF4700, on June 10, 2014, Cloyd sold heroin to a Milwaukee

Police Department (MPD) Confidential Source. On June 19, 2014, Cloyd 

arranged another heroin sale with the same MPD Confidential Source and then had 

his sister complete the sale later that day. Cloyd was charged with six counts: 

 

1

 Cloyd’s cases were heard by multiple judges including the Honorable Clare L. 

Fiorenza, who accepted his plea in case No. 2014CF4700; the Honorable Thomas J. McAdams, 

who imposed sentencing and who denied partial postconviction relief in case No. 2014CF4700; 

the Honorable David C. Swanson, who denied postconviction relief in case No. 2014CF4700; the 

Honorable Mark A. Sanders, who accepted his plea in case No. 2014CF325; and the Honorable 

T. Christopher Dee, who imposed sentencing in case No. 2014CF3215. For ease of reading, we 

refer to all of the judges as the circuit court.
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(1) manufacture/delivery of three or less grams of heroin, as a repeater, and as a 

second or subsequent drug offense; (2) felony bail jumping as a repeater; 

(3) misdemeanor bail jumping as a repeater; (4) manufacture/delivery of three or 

less grams of heroin, as a party to a crime and as a repeater, and as a second or 

subsequent drug offense; (5) felony bail jumping as a repeater; and 

(6) misdemeanor bail jumping as a repeater.

¶4 On April 27, 2015, pursuant to a plea agreement, Cloyd plead: 

(1) guilty to counts one and four, the heroin charges including the second and 

subsequent drug offense penalty enhancer under WIS. STAT. § 961.48(1) (2013-

14),

2 but the State dismissed the habitual criminality repeater penalty enhancer 

under WIS. STAT. § 939.62 (2013-14); and (2) guilty to counts two and five for 

felony bail jumping, but the State dismissed the repeater penalty enhancer. The 

State also agreed to dismiss but read in the misdemeanor bail jumping charges, 

counts three and six. During the plea colloquy, the circuit court stated for count 

one, Cloyd faced a maximum term of imprisonment for not more than twelve 

years and six months. It also stated that the second or subsequent drug offense 

enhancer could add up to four years of imprisonment and for the repeater

enhancer, “the prison portion of the sentence could be increased by not more than 

four years.”3 The circuit court explained the same penalties described for count 

 

2

 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise 

noted.

3

 We note that the circuit court’s pronouncement that the repeater enhancer could 

increase Cloyd’s sentence by “not more than four years” was not strictly accurate. The 

information applied WIS. STAT. § 939.62(1)(c) as an enhancer, which provides that when an actor 

is a repeater as defined in that section, the “maximum term of imprisonment of more than [ten] 

years may be increased ... by not more than [six] years if the prior conviction was for a felony.” 

Therefore, Cloyd faced an increased penalty of up to six years; however, we quote the circuit 

court misstatement because that is the information stated in Cloyd’s presence. 
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4

one also applied to count four. Combining the potential term of imprisonment for 

all six counts with the charged enhancers, Cloyd’s faced a seventy year and six 

month term of imprisonment.4 After a thorough colloquy, the circuit court 

accepted Cloyd’s guilty pleas. 

¶5 On July 9, 2015, the circuit court sentenced Cloyd to concurrent 

sentences.5 The circuit court did not impose the maximum sentences or increase 

Cloyd’s confinement based on the penalty enhancers. The court imposed 

 

4

 For case No. 2014CF4700, the maximum term of imprisonment with all enhancers was 

seventy years and six months, which is composed of: 

Count One, contrary to WIS. STAT. § 961.41(1)(d)1—twelve years and six months plus 

six years for the repeater enhancer per WIS. STAT. § 939.62(1)(c) and/or four years for the second 

or subsequent drug offense enhancer per WIS. STAT. § 961.48(1)(b); 

Count Two, contrary to § 946.49(1)(b)—six years plus four years for the repeater 

enhancer per § 939.62(1)(b); 

Count Three, contrary to § 946.49(1)(a)—nine months plus two years for the repeater 

enhancer per § 939.62(1)(a); 

Count Four, contrary to §§ 961.41(1)(d)1, 939.05—twelve years and six months plus six 

years for the repeater enhancer per § 939.62(1)(c) and/or four years for the second or subsequent 

drug offense enhancer per § 961.48(1)(b); 

Count Five, § 946.49(1)(b)—six years plus four years for the repeater enhancer per 

§ 939.62(1)(b); and

Count Six contrary to § 946.49(1)(a)—nine months plus two years for the repeater 

enhancer per § 939.62(1)(a). 

5

 During the same hearing, the circuit court sentenced Cloyd to a two year term of 

imprisonment in Milwaukee County Circuit Court case No. 2014CF4698, a case for which Cloyd 

had been convicted at a jury trial in February 2015. That sentence was concurrent to the sentence 

imposed in case No. 2014CF4700. The court also referenced Cloyd’s convictions and sentencing 

in December 2014 to nine months in the House of Correction, consecutively, in Milwaukee 

County Circuit Court case No. 2014CF1120; nine months in the House of Correction, 

consecutively, in Milwaukee County Circuit Court case No. 2014CM1633; and one year initial 

confinement and one year of extended supervision, consecutively, in Milwaukee County Circuit 

Court case No. 14CF4817. We do not discuss Cloyd’s cases that are not on appeal any further. 
Nos. 2018AP1589-CR

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concurrent sentences of seven years and six months of initial confinement and five 

years of extended supervision for counts one and four, and concurrent sentences of 

three years of initial confinement and three years of extended supervision for 

counts two and five, with read-ins for counts three and six, which were also 

dismissed. The concurrent sentences were consecutive to any other sentences 

imposed. 

¶6 In February 2017, Cloyd filed a WIS. STAT. § 809.30 postconviction 

motion seeking plea withdrawal among other issues. Cloyd argued that his plea 

was not entered knowingly, intelligently, and voluntarily because he was 

improperly charged with two penalty enhancers. In August 2017, the circuit court 

denied Cloyd’s motion for plea withdrawal without a hearing.

6

II. Milwaukee County Circuit Court case No. 2014CF3215

¶7 According to the criminal complaint in Milwaukee County Circuit 

Court case No. 2014CF3215, on July 20, 2014, Cloyd was identified with a 

firearm in his hand on surveillance video outside of a strip club in Milwaukee after 

a shooting. On July 21, 2014, the police conducted a traffic stop of a vehicle 

driven by Cloyd. He was arrested after an officer observed a suspected marijuana 

blunt in his lap; further, during a search, an officer found a pill in his pants pocket, 

 

6

 Cloyd additionally moved for postconviction relief seeking sentence modification, 

eligibility for the earned release program and plea withdrawal on the basis of not being informed 

that he would be subject to a mandatory DNA surcharge. The sentence modification was denied, 

the eligibility for the earned release program was granted, but the plea withdrawal based on the 

DNA surcharge issue was held in abeyance pending a decision in State v. Freiboth, 2018 WI App 

46, 383 Wis. 2d 733, 916 N.W.2d 643. There, this court concluded that the circuit court had no 

duty to inform a defendant of the mandatory DNA surcharges under WIS. STAT. § 973.046(1r). 

Id., ¶12. Accordingly, Cloyd’s remaining claim was denied in July 2018. These issues are not 

raised on appeal and we address them no further.
Nos. 2018AP1589-CR

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6

which was identified as Oxycodone. Cloyd was charged with six counts: 

(1) possession of a firearm by a felon as a repeater; (2) felony bail jumping as a 

repeater; (3) misdemeanor bail jumping as a repeater; (4) disorderly conduct with 

use of a dangerous weapon as a repeater; (5) possession of tetrahydrocannabinol 

(THC) as a repeater and as a second or subsequent drug offense;7and 

(6) possession of narcotic drugs as a repeater and as a second or subsequent drug 

offense. 8

 

7

 We note that the complaint and information for count five of case No. 2014CF3251 

both state that he was charged as a repeater and as a second and subsequent drug offense; 

however, the statutory violations only list the repeater enhancer, WIS. STAT. § 939.62(1)(b). 

Count six lists the statutory violations for both enhancers. Cloyd’s postconviction motion only 

challenges the imposition of both enhancers on count six, and so we only address count six and 

do not address count five.

8

 For case No. 2014CF3251, the maximum term of imprisonment with all enhancers 

based on the six counts charged in the information was forty-eight years six months. This was 

composed of: 

Count One, contrary to WIS. STAT. § 941.29(2)(a)—ten years plus four years for the 

repeater enhancer per WIS. STAT. § 939.62(1)(b); 

Count Two, contrary to § 946.49(1)(b)—six years plus four years for the repeater 

enhancer per § 939.62(1)(b); 

Count Three, contrary to § 946.49(1)(a)—nine months plus two years for the repeater 

enhancer per § 939.62(1)(a); 

Count Four, contrary to § 947.01(1)—ninety days plus two years for the repeater 

enhancer per § 939.62(1)(a) plus six months for use of a dangerous weapon enhancer per WIS.

STAT. § 939.63(1)(a); 

Count Five, contrary to § 961.41(3g)(e)—three years and six months plus four years for 

the repeater enhancer per § 939.62(1)(b); and 

Count Six, contrary to § 961.41(3g)(e)—three years and six months plus four years for 

the repeater enhancer per § 939.62(1)(b) and/or four years for the second or subsequent drug 

offense enhancer per WIS. STAT. § 961.48(1)(b). 
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¶8 On March 7, 2016, pursuant to a plea agreement, Cloyd entered 

guilty pleas to counts one, two, and five (with the second or subsequent drug 

offense enhancer), and the State moved to dismiss the repeater penalty enhancer 

for those counts, and dismissed and read in counts three, four, and six. During the 

plea colloquy, the circuit court found that if the maximum statutory penalties for 

counts one, two, and five were imposed as consecutive sentences, Cloyd faced up 

to nineteen years and six months of imprisonment and $40,000 in fines. After a 

thorough colloquy on Cloyd’s rights, the court accepted Cloyd’s guilty pleas and 

dismissed the repeater penalty enhancer for counts one, two, and five.

¶9 On March 22, 2016, Cloyd moved to withdraw his plea in No.

2014CF3215, pro se, alleging his counsel coerced him into entering his plea or did 

not effectively represent him during the plea hearing. At a hearing in May 2016, 

the court allowed Cloyd’s counsel, who was appointed by the State Public 

Defender’s (SPD) office, to withdraw and asked counsel to let SPD know about 

the need to appoint new counsel to litigate Cloyd’s plea withdrawal motion.

¶10 In January 2017, the circuit court heard Cloyd’s motion to withdraw 

his plea.9 The hearing opened with the State explaining it would not further 

negotiate a plea agreement with Cloyd if he was successful in withdrawing his 

plea. Relevant here, the court stated that all of the repeater penalty enhancers 

would return and increase Cloyd’s exposure to prison time. After testimony from 

Cloyd and his former attorney, the court found that Cloyd had not proven that 

 

9

 We note that Cloyd’s original motion for plea withdrawal was made prior to sentencing 

and the circuit court assessed his motion under the fair and just reason standard. See State v. 

Manke, 230 Wis. 2d 421, 425, 602 N.W.2d 139 (Ct. App. 1999). On appeal, Cloyd’s 

postconviction motion requests plea withdrawal after sentencing under the manifest injustice 

standard. 
Nos. 2018AP1589-CR

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8

there were sufficient grounds to question the validity of the plea colloquy and the 

admissions of guilt to grant plea withdrawal. The court found that counsel 

discussed defenses and options with Cloyd, and he did not provide a fair and just 

reason to withdraw his plea. The court denied Cloyd’s motion.

¶11 On April 26, 2017, the circuit court sentenced Cloyd. The circuit 

court did not impose the maximum possible sentences or increase Cloyd’s 

confinement based on the penalty enhancers. The court imposed four years of 

initial confinement and four years of extended supervision for count one, one year 

of initial confinement and one year of extended supervision for count two, and one 

year of initial confinement and one year of extended supervision for count five. 

The sentences for counts two and five were concurrent to each other, but 

consecutive to the sentence for count one.

DISCUSSION

¶12 On appeal, Cloyd argues that under the plain language of WIS. STAT.

§ 973.01(2)(c)2.c.,

10 a court may not impose both the habitual criminality repeater 

 

10

 WISCONSIN STAT. § 973.01 sets forth how courts impose sentencing including the 

bifurcation of confinement and extended supervision, the total length of a bifurcated sentence, the 

maximum terms of confinement, and the imposition of penalty enhancements. Relevant here is 

the law on the imposition of multiple penalty enhancers:

If more than one of the following penalty enhancement statutes

apply to a crime, the court shall apply them in the order listed in 

calculating the maximum term of imprisonment for that crime:

a. Sections 939.621, 939.623, 939.632, 939.635, 939.645, 946.42 

(4), 961.442, 961.46, and 961.49.

b. Section 939.63.

c. Section 939.62 (1) or 961.48.

Sec. 973.01(2)(c)2. 
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penalty enhancer under WIS. STAT. § 939.62(1)(b) and the second or subsequent 

drug offense penalty enhancer under WIS. STAT. § 961.48(1)(b). As Cloyd was 

charged with both penalty enhancers for counts one and four in case 

No. 2014CF4700 and count six in case No. 2014CF3251, he contends his pleas

were not knowing, intelligent and voluntary because he was not told the correct 

maximum term of imprisonment he faced and it would be a manifest injustice if he 

were not allowed to withdraw his pleas. Additionally, he argues he was provided 

ineffective assistance of counsel because his attorneys did not move to dismiss one 

of the penalty enhancers. 

¶13 “When a defendant seeks to withdraw a guilty plea after sentencing, 

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

withdrawal of the plea would result in ‘manifest injustice.’” State v. Brown, 2006 

WI 100, ¶18, 293 Wis. 2d 594, 716 N.W.2d 906 (citation omitted). “One way the 

defendant can show manifest injustice is to prove that his plea was not entered 

knowingly, intelligently, and voluntarily.” State v. Taylor, 2013 WI 34, ¶24, 347 

Wis. 2d 30, 829 N.W.2d 482. “Whether a plea was entered knowingly, 

voluntarily, and intelligently presents a question of constitutional fact that is 

reviewed independently.” State v. Cross, 2010 WI 70, ¶14, 326 Wis. 2d 492, 786 

N.W.2d 64. “In making this determination, this court accepts the circuit court’s 

findings of historical or evidentiary facts unless they are clearly erroneous.” Id.

¶14 WISCONSIN STAT. § 971.08 establishes certain requirements for 

ensuring a guilty plea is knowing, voluntary, and intelligent. In State v. Bangert, 

131 Wis. 2d 246, 389 N.W.2d 12 (1986), and subsequent cases such as Brown,

293 Wis. 2d 594, ¶23, our supreme court “provided additional requirements.” 

Cross, 326 Wis. 2d 492, ¶16. At issue here, as was examined in Cross, is whether 

the circuit court “[e]stablish[ed] the defendant’s understanding of ... the range of 
Nos. 2018AP1589-CR

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10

punishments to which he is subjecting himself by entering a plea[.]” Brown, 293 

Wis. 2d 594, ¶35. Cloyd argues that the circuit court failed in its duty under 

Bangert and § 971.08 because it presented an incorrect “range of punishments” 

when both the repeater penalty enhancer and second and subsequent drug offense 

penalty enhancer were both presented as applicable to counts one and four in case 

No. 2014CF4700 and count six in case No. 2014CF3251. 

¶15 Although Cloyd argues we must interpret WIS. STAT.

§ 973.01(2)(c)2.c. to determine the proper imposition of penalty enhancers at the 

time of sentencing, we are not persuaded that this issue needs to be resolved in this 

case.11 Even if we assume without deciding that Cloyd’s arguments are correct we 

conclude that he would not be entitled to withdraw his plea because the facts of 

this case are controlled by Cross, 326 Wis. 2d 492, ¶45. During the plea hearings 

in each case, the circuit court reviewed the charges Cloyd faced, the penalties in 

terms of imprisonment and fines, and the potential penalty enhancers which could 

apply based on the information in each case. Cloyd posits that he was presented 

by the court with a higher “range of punishment” than he could actually be 

sentenced upon. However, we conclude that under Cross, the circuit court has 

 

11

 Cloyd points out that WIS. STAT. § 973.01(2)(c)2.c. has not been interpreted by the 

appellate courts after the substantial amendment in 2001 Wis. Act 109; therefore, he argues the 

inapplicability of State v. Maxey, 2003 WI App 94, 264 Wis. 2d 878, 663 N.W.2d 811, which 

allowed for the imposition of penalty enhancers for both WIS. STAT. § 939.62 and WIS. STAT.

§ 961.48 when each enhancer relied upon a different prior conviction. The prior version of 

§ 973.01(2)(c) (1999-2000) did not address a hierarchy of penalty enhancers nor did it provide a 

disjunctive “or” in the imposition of certain enhancers. However, as the State argues, here, the 

repeater penalty enhancer was dismissed and the court did not impose additional time under a 

penalty enhancer in Cloyd’s sentence. Because this court decides cases “on the narrowest 

possible ground,” and we can resolve this case under the analysis for knowing, intelligent, and 

voluntary pleading, the question of the potential application of both enhancers “must await a case 

where that issue is squarely presented.” See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 

514 (Ct. App. 1989).
Nos. 2018AP1589-CR

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“fulfilled its duty to inform the defendant of the range of punishments” because 

any difference was not substantial. Id., 326 Wis. 2d 492, ¶4. Here, Cloyd argues 

that it was incorrect to state that both penalty enhancers could be applied to the 

same count. He contends he was incorrectly informed of eight years of potential 

imprisonment out of a total exposure of seventy years and six months, under the 

maximum sentences with both enhancers in case No. 2014CF470012 and four 

years of potential imprisonment out of a total exposure of forty-eight years and six 

months, under the maximum sentences with both enhancers in case 

No. 2014CF3251.

13 In other words, he argues his potential maximum term of 

imprisonment was overstated by twelve years—out of 119 years of potential 

maximum term of imprisonment in both cases combined. 

¶16 In the scheme of Cloyd’s maximum term of imprisonment, we 

conclude that 119 years of imprisonment is not substantially higher than the 107 

years of imprisonment unquestionably allowed by law. Therefore, the circuit 

court has still fulfilled its duty under WIS. STAT. § 971.08 and Bangert “to inform 

the defendant of the range of punishments.” Cross, 326 Wis. 2d 492, ¶4. The 

court’s communication of a sentence that is “not substantially higher[] than that 

authorized by law ... does not constitute a Bangert violation and will not, as a 

matter of law, be sufficient to show that the defendant was deprived of his 

 

12

 We note that in case No. 2014CF4700, if only the six-year repeater enhancer per WIS.

STAT. § 939.62(1)(c) were applied to each count one and four, then the maximum imprisonment 

would have been sixty-two years and six months, reflecting a subtraction of two applications of 

the four-year second or subsequent drug offense enhancer per WIS. STAT. § 961.48(1)(b). 

13

 We note that in case No. 2014CF3251, if only one enhancer—either per WIS. STAT.

§ 939.62(1)(b) or WIS. STAT. 961.48(1)(b)—were applied, then the maximum imprisonment 

would have been approximately forty-four years and six months, reflecting a subtraction of four 

years for either the repeater enhancer or the second or subsequent drug charge enhancer on count 

six. 
Nos. 2018AP1589-CR

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constitutional right to due process of law.” Cross, 326 Wis. 2d 492, ¶40. 

Therefore, we conclude that Cloyd “did understand the range of punishments and 

did not make a prima facie showing that the circuit court failed in its duties.” Id., 

¶41. Because this was the basis upon which Cloyd argued his pleas were not 

knowing, we conclude that Cloyd’s guilty pleas were made knowingly, 

voluntarily, and intelligently. See id. 

¶17 Cloyd next argues that he received ineffective assistance of counsel 

because his attorney did not move the court to dismiss the penalty enhancers on 

the three counts at issue.

14

 A defendant may satisfy his burden to show manifest 

injustice if plea withdrawal is not granted if the defendant can show he was 

“denied the effective assistance of counsel.” State v. Bentley, 201 Wis. 2d 303, 

311, 548 N.W.2d 50 (1996). To demonstrate ineffective assistance of counsel, a 

defendant must satisfy the familiar two-prong test in Strickland v. Washington, 

466 U.S. 668 (1984). A “defendant must show that counsel’s performance was 

deficient” and that “the deficient performance prejudiced the defense.” Id. at 687. 

¶18 First, Cloyd has not established prejudice. “[T]o satisfy the 

prejudice prong of the Strickland test, the defendant seeking to withdraw his or 

her plea must allege facts to show ‘that there is a reasonable probability that, but 

for the counsel’s errors, he would not have pleaded guilty and would have insisted 

on going to trial.’” Bentley, 201 Wis. 2d at 312 (citation omitted). Cloyd has not 

 

14

 Cloyd’s allegations generally apply to the attorney who represented him in the plea 

and sentencing in case No. 2014CF4700 and in the plea hearing in case No. 2014CF3251, but he 

also alleges that the attorney who represented him when he moved to withdraw his pleas to the 

circuit court and at sentencing in case No. 2014CF3251 also was ineffective for failing to move to 

dismiss a penalty enhancer. Because we do not distinguish concerns about each attorney’s 

representation, we refer to Cloyd’s attorney in the singular for ease of reading. 
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given a reason he would have gone to trial or claimed with specificity what 

deficient or erroneous advice he received from his attorney. See id. at 314-15. 

Cloyd’s allegations are conclusory and do not show that he would have insisted on 

going to trial in light of the favorable plea agreement that counsel obtained.

Cloyd’s counsel negotiated favorable plea agreements, under which Cloyd had his 

maximum potential sentencing reduced over twenty-five years in each case.

15

 

Cloyd’s allegations are conclusory and do not show that he would have insisted on 

going to trial in light of the favorable plea agreement that counsel obtained.

¶19 Further, Cloyd has not sufficiently alleged deficient performance. 

Cloyd has not provided legal authority to support that counsel was deficient in 

failing to move to dismiss one of the penalty enhancers because he could not have 

been charged with both penalty enhancers as a matter of law. See State v. Pettit, 

171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (“Arguments unsupported 

by references to legal authority will not be considered.”). Cloyd acknowledges 

that WIS. STAT. § 973.01(2)(c)2.c. has not been interpreted by this court, and while 

he considers the statutory interpretation straightforward, we are not persuaded this 

is settled law. An attorney’s failure to pursue an argument that “require[s] the 

resolution of unsettled legal questions generally does not render” the attorney’s 

services as falling below an objective standard of reasonableness. See State v. 

Lemberger, 2017 WI 39, ¶18, 374 Wis. 2d 617, 893 N.W.2d 232 (citation 

omitted). Our supreme court has explained that “ineffective assistance of counsel 

 

15

 For case No. 2014CF4700, with his plea agreement, Cloyd faced forty-five years of 

maximum imprisonment; without the plea agreement, for all six counts, Cloyd faced up to 

seventy years and six months of imprisonment. This is a reduction of twenty-five years and six 

months. For case No. 2014CF3251, with his plea agreement, Cloyd faced nineteen years and six 

months of maximum imprisonment; without the plea agreement, for all six counts, Cloyd faced 

up to forty-eight years and six months of imprisonment. This is a reduction of twenty-nine years. 
Nos. 2018AP1589-CR

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cases should be limited to situations where the law or duty is clear such that 

reasonable counsel should know enough to raise the issue.” Id., ¶33 (citation 

omitted). Therefore, we conclude that Cloyd has failed to show that his attorney’s 

conduct was deficient because the interpretation of this statute is not settled law. 

Ultimately, we conclude that Cloyd has failed to satisfy either prong of the 

Strickland test to show ineffective assistance of counsel. 

¶20 Further, Cloyd fails to prove that the circuit court erroneously 

exercised its discretion when it denied his postconviction motion without a 

hearing. See Bentley, 201 Wis. 2d at 314. First, Cloyd has not set forth sufficient 

material facts to allow this court to meaningfully assess his claims. Second, Cloyd 

offered only conclusory allegations to support his claims that he would have gone 

to trial if he had been informed about the operation of these penalty enhancers. 

Third, he did not sufficiently plead his claim of ineffective assistance of counsel to 

demonstrate that he is entitled to relief. Therefore, the circuit court did not err 

when it denied his postconviction claims without a hearing. 

¶21 Finally, we conclude that Cloyd has not shown that plea withdrawal 

is necessary to correct a manifest injustice. A manifest injustice occurs when there 

has been “a serious flaw in the fundamental integrity of the plea.” Cross, 326 

Wis. 2d 492, ¶42 (citation omitted). Cloyd’s arguments on appeal—that the 

circuit court misstated the possible maximum term of imprisonment and that his 

attorney was ineffective for failing to move to dismiss one of the penalty 

enhancers—both arise out of Cloyd’s claim of misunderstanding the precise 

maximum sentence he faced. See id. The plea agreements into which Cloyd 

entered were favorable to him, reducing his exposure by over twenty-five years in 

each case or over fifty years in both cases. He claims he would have gone to trial 

with the knowledge that both penalty enhancers would not apply, but he fails to 
Nos. 2018AP1589-CR

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satisfy his burden to “provide a ‘specific explanation of why [he] alleges he [or 

she] would have gone to trial....’” State v. Jeninga, 2019 WI App 14, ¶14, 386 

Wis. 2d 336, 925 N.W.2d 574 (citation omitted), review denied, 2019 WI 84, 388 

Wis. 2d 650, 931 N.W.2d 532. Therefore, we conclude that Cloyd has failed to 

meet his burden to show a manifest injustice and we sustain the circuit court’s 

exercise of discretion in denying Cloyd an evidentiary hearing or denying his 

motion to withdraw his pleas. See Cross, 326 Wis. 2d 492, ¶¶44-45. 

CONCLUSION

¶22 We conclude that Cloyd has failed to show a manifest injustice if he 

is not allowed to withdraw his pleas, based on either the circuit court’s duty to 

establish that he understood the range of punishments, or ineffective assistance of 

counsel. Further, Cloyd’s allegations are conclusory, and do not allege sufficient 

material facts to entitle him to an evidentiary hearing on his claims. Therefore, we 

affirm his judgments of conviction and the denial of his postconviction motions. 

By the Court.—Judgments and orders affirmed.

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

809.23(1)(b)5.