COURT OF APPEALS 

DECISION 

DATED AND FILED

September 10, 2019 

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. 2018AP2017-CR 

2018AP2018-CR 

2018AP2019-CR 

Cir. Ct. Nos. 2016CF4982 

2017CF953 

2017CF4985

STATE OF WISCONSIN IN COURT OF APPEALS 

DISTRICT I 

STATE OF WISCONSIN, 

 PLAINTIFF-RESPONDENT, 

V. 

EDDIE BEN SANDERS, 

 DEFENDANT-APPELLANT. 

 APPEALS from judgments and an order of the circuit court for 

Milwaukee County: MARK A. SANDERS, Judge. Affirmed. 

 Before Brash, P.J., Kessler and Dugan, 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. 2018AP2017-CR 

2018AP2018-CR 

2018AP2019-CR 

2 

¶1 PER CURIAM. Eddie Ben Sanders appeals from judgments 

convicting him of attempted third-degree sexual assault, felony intimidation of a 

witness, and violating the sex offender registry. See WIS. STAT. §§ 940.225(3), 

939.32, 940.43(4), & 301.45(6) (2015-16).1 He also appeals the order denying his 

postconviction motion without a hearing. We affirm. 

I. BACKGROUND

¶2 The crimes underlying these appeals stem from three separate 

criminal complaints. 

Milwaukee County Case No. 2016CF4982 

¶3 In the first criminal complaint filed against him, Sanders was 

charged with attempted first-degree sexual assault of a child as a party to a crime. 

According to the complaint, on November 5, 2016, the child victim, who was ten 

years old, told police that she woke up to her cousin, Sanders, touching her 

buttocks or side of her hip. The victim said that Sanders told her he wanted to “eat 

her p.” The victim clarified for police that “p” meant “pussy.” She left the room 

and went to a bedroom where two of her siblings were sleeping. Sanders and his 

brother Donald Sanders followed her into the bedroom.2 Donald was residing at 

the residence because he was dating the victim’s great aunt. Donald gave the 

victim $5.00 and told her, “I want to do the same thing Eddie tried.” The victim 

 

1

 All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise 

noted. 

By a prior order of this court, these appeals were consolidated. 

2

 We will refer to Donald Sanders as “Donald” and Eddie Sanders as “Sanders.” 
Nos. 2018AP2017-CR 

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3 

told him no and gave the money back to Donald. Sanders then tried to unbutton 

her pants. The victim told police she was very afraid and began crying and 

screaming, which woke up her mother and great aunt. 

¶4 In the same complaint, the State charged Donald with attempted 

first-degree sexual assault of a child as a party to a crime. 

Milwaukee County Case No. 2017CF953 

¶5 In the second criminal complaint, Sanders was charged with felony

intimidation of a witness. The complaint alleged that while the sexual assault case 

was pending, Sanders sent a letter to his girlfriend instructing the victim’s mother 

“not to show up at court so, they can dismiss” the charges. 

¶6 After receiving the letter, Sanders’ girlfriend spoke to the victim’s 

mother and handed her the letter telling her not to show up at court. 

Milwaukee County Case No. 2017CF4985 

¶7 In the third criminal complaint, Sanders was charged with violating 

the sex offender registry. The complaint alleged that Sanders failed to comply 

with several reporting requirements for the registry and failed to respond to written 

requests for information from the Department of Corrections. 

¶8 Pursuant to a plea agreement reached on the morning of trial, 

Sanders pled guilty to attempted third-degree sexual assault in Case 

No. 2016CF4982 and to felony intimidation of a witness in Case No. 2017CF953. 

The circuit court accepted Sanders’ pleas. 
Nos. 2018AP2017-CR 

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4 

¶9 Prior to sentencing, Sanders, pro se, sent the circuit court a letter 

asking to withdraw his pleas. He later retracted the withdrawal letter at the 

sentencing hearing during the following exchange with the circuit court: 

THE COURT: ... Now, listen, I got this letter from you 

dated December 7th saying you wanted to withdraw your 

plea on those other cases. Do you want to do that? 

DEFENDANT: I’m good. 

THE COURT: You do not wish to withdraw your pleas? 

DEFENDANT: I’m good. 

THE COURT: I’m sorry, I’m having trouble hearing you. 

DEFENDANT: No, no, no. 

THE COURT: Okay. 

¶10 During the hearing, Sanders entered a guilty plea to violating the sex 

offender registry in Case No. 2017CF4985. The circuit court accepted his plea 

and subsequently ordered him to serve cumulative sentences on the three charges 

totaling six years of initial confinement and six and one-half years of extended 

supervision. 

¶11 Sanders filed a postconviction motion and argued that he did not 

knowingly, intelligently, and voluntarily enter his guilty pleas; trial counsel was 

ineffective for not bringing a motion to sever the co-defendants; and the circuit 

court erred in granting the State’s motion to admit other-acts evidence.3 The 

circuit court denied the motion without a hearing. 

 

3

 The Honorable M. Joseph Donald granted the State’s other-acts motion. 
Nos. 2018AP2017-CR 

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5 

II. DISCUSSION

¶12 Sanders renews his postconviction claims on appeal. “When a 

defendant seeks to withdraw a guilty or no contest plea after sentencing, he or she 

must prove by clear and convincing evidence that refusing to allow plea 

withdrawal would result in a ‘manifest injustice.’” State v. Finley, 2016 WI 63, 

¶58, 370 Wis. 2d 402, 882 N.W.2d 761 (citation omitted). To satisfy the manifest 

injustice test, Sanders must show “a serious flaw in the fundamental integrity of 

the plea.” See State v. Thomas, 2000 WI 13, ¶16, 232 Wis. 2d 714, 605 N.W.2d 

836 (citation omitted). 

¶13 A defendant can demonstrate a manifest injustice by showing that he 

or she did not knowingly, intelligently, and voluntarily enter the plea. State v. 

Brown, 2006 WI 100, ¶18, 293 Wis. 2d 594, 716 N.W.2d 906. Similarly, a 

defendant who receives constitutionally inadequate representation may be entitled 

to plea withdrawal. See State v. Daley, 2006 WI App 81, ¶20 n.3, 292 Wis. 2d 

517, 716 N.W.2d 146. Here, Sanders argues that he has established manifest 

injustice on both grounds. 

A. Plea Withdrawal

 ¶14 Sanders argues that under Nelson/Bentley, his guilty pleas should be 

withdrawn because he did not knowingly, intelligently, and voluntarily enter them 

“when he flip-flopped his decision to plead guilty.”4 Sanders contends that the 

“flip-flopping” demonstrates he did not knowingly enter the pleas. Sanders 

 

4

 See Nelson v. State, 54 Wis. 2d 489, 195 N.W.2d 629 (1972), and State v. Bentley, 201 

Wis. 2d 303, 548 N.W.2d 50 (1996). 
Nos. 2018AP2017-CR 

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6 

additionally argues that he did not voluntarily enter the pleas because trial counsel 

“coerced him into signing the pleas.” He further claims he was rushed, scared, 

and confused and as such, was not thinking rationally at the time. 

 ¶15 The Nelson/Bentley protocol applies when a defendant alleges that 

some factor extrinsic to the plea colloquy, like ineffective assistance of counsel, 

renders a plea invalid. State v. Howell, 2007 WI 75, ¶74, 301 Wis. 2d 350, 734 

N.W.2d 48. A defendant is not entitled to an evidentiary hearing if the

defendant’s motion fails to allege sufficient facts that, if true, would entitle the 

defendant to relief, “or presents only conclusory allegations, or if the record 

conclusively demonstrates that the defendant is not entitled to relief[.]” Id., ¶75 

(citation omitted). This court reviews independently whether a defendant’s 

motion to withdraw a plea “‘on its face alleges facts which would entitle the 

defendant to relief,’ and whether the record conclusively demonstrates that the 

defendant is entitled to no relief.” See id., ¶78 (citation omitted). 

 ¶16 Applying these standards here, we conclude that Sanders was not 

entitled to an evidentiary hearing because he did not allege sufficient facts to 

entitle him to relief. The facts he offered in his postconviction motion amounted 

to details of his “flip-flopping” and conclusory assertions of having been 

manipulated, coerced, misrepresented, pressured, rushed, scared, and confused. 

 ¶17 In its response brief, the State highlights various shortcomings in 

Sanders’ postconviction motion: 

 To meet this heavy burden [of showing by clear and 

convincing evidence, the existence of a manifest injustice], 

Sanders would have had to plead facts showing, for 

example: why he told the judge that he did not want to 

withdraw his guilty pleas when presented with the 

opportunity to do so; how his trial counsel purportedly 
Nos. 2018AP2017-CR 

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7 

manipulated and coerced him at or before the sentencing 

hearing into telling the circuit [court] he wished to proceed 

with sentencing when that was not his intention; why he 

entered a guilty plea to the sex offender registry violation at 

the sentencing hearing, five weeks after writing the letter 

and moments after retracting it, if he was innocent of all 

charges[5]; or any other facts explaining why he would have 

told the court that he wanted to plead guilty when that was 

not his intention. Sanders’[] postconviction motion was 

conspicuously silent as to these facts. 

We agree that Sanders failed to allege sufficient facts that would have entitled him 

to relief. See State v. Allen, 2004 WI 106, ¶23, 274 Wis. 2d 568, 682 N.W.2d 433 

(explaining that allegations in a postconviction motion should include “the five 

‘w’s’ and one ‘h’ .... A motion that alleges, within the four corners of the 

document itself, the kind of material factual objectivity we describe above will 

necessarily include sufficient material facts for reviewing courts to meaningfully 

assess a defendant’s claim”). The circuit court properly denied Sanders’ claim 

without a hearing.6 

B. Motion to Sever 

¶18 Next, Sanders argues that trial counsel was ineffective for not filing 

a motion to sever his case from Donald’s. To establish his claim of ineffective 

assistance, Sanders must show that his counsel’s performance was deficient and 

that the deficient performance prejudiced his defense. See Strickland v. 

Washington, 466 U.S. 668, 687 (1984). 

 

5

 In his postconviction motion, Sanders conceded that he intended to retract the letter. 

6

 In his postconviction motion, Sanders asserted, but did not develop an argument, that 

the plea colloquy itself was defective. He does not pursue this claim on appeal. 
Nos. 2018AP2017-CR 

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8 

¶19 Once again, the allegations in his postconviction motion fall short. 

Sanders asserted only that a reasonable attorney would bring a motion to sever two 

co-defendants who “may have antagonistic defenses” and, but for the joinder, he 

would not have pled guilty. Sanders does not provide facts to support these 

assertions nor does he identify with any sort of specificity what defenses he or 

Donald may have had or explain how any such defenses were antagonistic. 

¶20 The circuit court properly denied Sanders’ claim without a hearing 

because he failed to allege sufficient facts that would have entitled him to relief. 

See Allen, 274 Wis. 2d 568, ¶23. 

C. Other-Acts Evidence 

¶21 Lastly, Sanders argues that the circuit court erred when it granted the 

State’s motion to admit other-acts evidence. By entering his guilty pleas, Sanders 

gave up the right to appeal the circuit court’s ruling on this issue. See State v. 

Nelson, 108 Wis. 2d 698, 702-03, 324 N.W.2d 292 (Ct. App. 1982) (holding that 

the defendant waived the right to challenge the admissibility of other-crimes 

evidence by pleading guilty). We refer to this as the guilty-plea-waiver rule, and 

its application is a question of law that we consider de novo. See State v. Kelty, 

2006 WI 101, ¶¶13, 18, 294 Wis. 2d 62, 716 N.W.2d 886. 

¶22 Sanders submits that because the circuit court did not consider the 

guilty-plea-waiver rule in its ruling on his postconviction motion, this court need 

not consider it now. We do not find this persuasive. First, while we could choose 

to address this issue despite the rule, see State v. Riekkoff, 112 Wis. 2d 119, 123-

24, 332 N.W.2d 744 (1983), Sanders did not adequately develop an argument for 

why doing so is appropriate here, see, e.g., Mack v. State, 93 Wis. 2d 287, 296-97, 
Nos. 2018AP2017-CR 

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9 

286 N.W.2d 563 (1980) (departing from the waiver rule has been allowed where 

“there are no factual questions, the parties have fully briefed the issue and [the 

question posed is] of ... statewide importance”). Second, we can affirm on a 

different basis than the one relied on by the circuit court. See Liberty Trucking 

Co. v. DILHR, 57 Wis. 2d 331, 342, 204 N.W.2d 457 (1973). We do so now as to 

this issue. 

By the Court.—Judgments and order affirmed. 

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

RULE 809.23(1)(b)5.