COURT OF APPEALS

DECISION

DATED AND FILED

October 6, 2021

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. 2020AP140-CR

2020AP141-CR

2020AP142-CR

Cir. Ct. Nos. 2014CF1531

2015CF908

2015CF909

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

DEREK J. DEGROOT,

 DEFENDANT-APPELLANT.

APPEALS from judgments and an order of the circuit court for 

Waukesha County: LEE S. DREYFUS, JR., and LAURA F. LAU, Judges. 

Affirmed. 

Before Gundrum, P.J., Neubauer and Reilly, JJ.
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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. In these consolidated appeals, Derek J. Degroot, 

pro se, appeals from judgments and an order denying his motion for 

postconviction relief.

1

 Degroot argues: (1) he was improperly denied the right to 

self-representation; (2) his trial counsel was ineffective in numerous ways; and 

(3) the prosecutor and the circuit court engaged in misconduct. We disagree in all 

regards and affirm.

Background

¶2 According to the criminal complaint in Waukesha County case 

No. 2014CF1531, K.S. accused Degroot of touching K.S.’s penis and performing 

oral sex on K.S. when K.S. was thirteen. During a search of Degroot’s residence, 

the police discovered hypodermic needles, burnt spoons, and glass smoking 

devices. The State charged Degroot with sexual assault of a child under the age of 

sixteen, child enticement, and possession of drug paraphernalia. 

¶3 Degroot posted bail on the charges. As a condition of his release, 

Degroot was prohibited from possessing or consuming alcohol. While out on bail, 

the police found Degroot intoxicated in a Waukesha park with a mostly empty 

bottle of vodka. The State charged him with felony bail jumping in Waukesha 

County case No. 2015CF908. 

 

1

 The Honorable Lee S. Dreyfus, Jr., entered the judgments of conviction. The 

Honorable Laura F. Lau issued the order denying Degroot’s postconviction motion. 
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¶4 Meanwhile, the police were investigating accusations by A.L. that 

Degroot had touched A.L.’s penis and had anal sex with him. Degroot babysat

A.L. when A.L. was between six and nine years old. Following these allegations, 

the State charged Degroot with two counts of first-degree sexual assault of a child 

under the age of thirteen in Waukesha County case No. 2015CF909. 

¶5 The cases were joined for trial, and a jury convicted Degroot of all 

of the charges. The circuit court imposed sentences totaling twenty years of initial 

confinement and twenty years of extended supervision followed by fifteen years of 

probation.2 

¶6 Degroot, pro se, filed a postconviction motion making the same 

arguments he pursues on appeal. The circuit court denied the motion without

holding a hearing and this appeal follows. 

Discussion

(1) The circuit court did not err when it denied Degroot the right to 

represent himself.

¶7 We first address Degroot’s assertion that he was denied the right to 

self-representation. Degroot contends that after he raised issues about trial 

counsel’s effectiveness, the circuit court failed to conduct a proper colloquy 

pursuant to State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997), and 

instead, simply inquired as to whether or not he understood certain aspects of the 

 

2

 For the charges of second-degree sexual assault of a child and child enticement in case 

No. 2014CF1531, the circuit court stayed sentences of ten years of initial confinement and ten 

years of extended supervision on each charge and imposed fifteen years of probation. 
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law, in particular, hearsay. 

¶8 Our analysis of the circuit court’s ruling starts with the principle that 

the right to self-representation is not absolute. See State v. Oswald, 2000 WI App 

3, ¶28, 232 Wis. 2d 103, 606 N.W.2d 238. A court considering whether to permit 

a person to proceed pro se must balance the person’s right to do so against the 

State’s interest in “avoiding any interference with the orderly administration of 

justice and preserving the integrity of the trial process.” See Hamiel v. State, 92 

Wis. 2d 656, 672, 285 N.W.2d 639 (1979). The right to proceed pro se is “not 

intended to allow the defendant the opportunity to avoid or delay the trial for any 

unjustifiable reason.” Id. at 673. Accordingly, the decision to grant or deny a 

belated request to proceed pro se rests in the circuit court’s discretion, and 

“[w]here the request to proceed pro se is made on the day of trial or immediately 

prior thereto, the determinative question is whether the request is proffered merely 

to secure delay or tactical advantage.” See id. at 672-73.

¶9 In this case, Degroot made his request mid-trial. Specifically, he 

asked to represent himself the morning of the second day of trial, following jury 

selection and an afternoon of testimony. Degroot told the circuit court that he 

wanted to fire his trial counsel because there was a “big conflict” between the two 

of them and said trial counsel was “just doing a terrible job.” Degroot went on to 

repeatedly express frustration that his cases had not been resolved prior to trial,

and he suggested that he had received an offer from the prosecutor at one point 

during the proceedings. 

¶10 In response, the circuit court noted that Degroot’s request came “in 

the middle of trial” and that at that point in the proceedings, the prosecutor was 

“quite clear that he believes you committed the offenses that are charged and is 
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pursuing prosecution on that, and the jury will have to make that determination.” 

The court further noted that even if an offer had been made at one point, for 

“whatever reason” an agreement was not reached and “[t]hat resolves that issue.” 

The court went on to ask Degroot about whether he was capable of representing 

himself, to which Degroot responded that it would take him “about a month” to 

have a sufficient understanding of the applicable law and trial procedures. 

¶11 After considering both the late timing of the request and what 

appeared to be primary reason for it—Degroot’s desire for a plea agreement—the 

court denied Degroot’s request to represent himself. We will uphold a 

discretionary decision if the circuit court considered relevant facts, applied a 

proper legal standard, and reached a reasonable conclusion. See State v. 

Edmunds, 2008 WI App 33, ¶8, 308 Wis. 2d 374, 746 N.W.2d 590. The court’s 

decision to deny Degroot’s request to proceed pro se constituted a reasonable 

exercise of discretion.

¶12 We recognize that during its exchange with Degroot, the circuit 

court did ask him if he could define hearsay. This appears to have been an attempt 

by the court to assess whether Degroot could be an effective advocate for himself 

at trial and whether he could present a meaningful defense. Pointing to Faretta v. 

California, 422 U.S. 806, 836 (1975), in which the Supreme Court held that 

technical legal knowledge is not relevant to assessing a request to proceed pro se,

Degroot argues that this was improper. Assuming without so holding that the 

court considered an irrelevant factor in resolving Degroot’s motion to represent 

himself, that assumption does not alter our conclusion. We look for reasons to 

sustain a circuit court’s discretionary decision, see State v. Nantelle, 2000 WI App 

110, ¶12, 235 Wis. 2d 91, 612 N.W.2d 356, and we will not reverse an exercise of 
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discretion unless it “is wholly unreasonable,” see State v. Johnson, 118 Wis. 2d 

472, 481, 348 N.W.2d 196 (Ct. App. 1984). The court’s decision to deny 

Degroot’s request to represent himself is properly supported, regardless of any 

additional findings the court may have made as to Degroot’s technical legal 

knowledge.

¶13 Additionally, we note that insofar as Degroot claims the circuit court 

erred when it failed to engage in a colloquy pursuant to Klessig, he is wrong. The 

circuit court was not required to confirm that Degroot knowingly and voluntarily 

waived his right to counsel given that his request was untimely. 

(2) Degroot has not shown that his trial counsel was ineffective. 

¶14 We turn to Degroot’s assertion that his trial counsel was ineffective 

in six ways. To establish a claim of ineffective assistance of counsel, a defendant 

must show both that counsel’s performance was deficient and that such 

performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 

687 (1984). “To prove constitutional deficiency, the defendant must establish that 

counsel’s conduct falls below an objective standard of reasonableness.” State v. 

Love, 2005 WI 116, ¶30, 284 Wis. 2d 111, 700 N.W.2d 62. “To prove 

constitutional prejudice, the defendant must show that ‘there is a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.’” Id. (citations and one set of 

quotation marks omitted). A reviewing court need not address both prongs of the 

analysis if the defendant makes an insufficient showing on either one. Strickland, 

466 U.S. at 697.
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¶15 When a defendant pursues postconviction relief based on trial 

counsel’s alleged ineffectiveness, the defendant must preserve trial counsel’s 

testimony in a postconviction hearing. See State v. Machner, 92 Wis. 2d 797, 

804, 285 N.W.2d 905 (Ct. App. 1979). However, a defendant is not automatically 

entitled to a hearing upon filing a postconviction motion that alleges ineffective 

assistance of counsel. Rather, to earn a hearing on a postconviction motion, the 

defendant must allege “sufficient material facts that, if true, would entitle the 

defendant to relief.” State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 

N.W.2d 433. 

¶16 If the motion alleges sufficient facts, a hearing is required. Id. If the 

motion is insufficient, if it presents only conclusory allegations, or if the record 

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

court may exercise its discretion in deciding whether to grant a hearing. Id. We 

review the court’s discretionary decision under the deferential erroneous exercise 

of discretion standard. Id. We will address each of Degroot’s claims against his 

trial counsel in turn.

a. Failure to hire an expert.

¶17 Degroot contends that he insisted that his trial counsel hire an expert 

to testify about “the libido-killing effects” of methadone, which Degroot was 

taking at the time of the alleged offenses. He submits that the presentation of 

these facts would have allowed the jury to understand the negative effect of the 

medication on motive and ability to commit the alleged offenses. 

¶18 Degroot’s assertions are conclusory. He did not show that such an 

expert existed or explain with any degree of specificity what the purported 
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expert’s testimony would have revealed. He merely cites two studies on the side 

effects of methadone and goes on to speculate that the failure of counsel to make 

these side effects known is enough to establish prejudice. Speculation, however, 

is insufficient to satisfy the prejudice prong of Strickland. See State v. Erickson, 

227 Wis. 2d 758, 774, 596 N.W.2d 749 (1999). 

b. Failure to investigate and review discovery.

¶19 Next, Degroot claims that his trial counsel failed to investigate the 

discovery material provided by the State, which resulted in the admission of “false 

evidence” of phone and Facebook communications. Proper investigation, Degroot

contends, would have yielded vital impeachment evidence against numerous 

witnesses. 

¶20 Specifically, Degroot asserts that investigation would have 

disproved testimony that K.S. broke his cell phone on November 22, 2014. 

However, Degroot fails to develop an argument as to how proving that K.S.’s 

phone was not broken would result in a reasonable probability that the result of his 

trial would have been different given the other evidence against him, which 

included K.S.’s own testimony about the assaults. Because his allegations are 

inadequate to show prejudice, this argument fails.

c. Failure to ensure Degroot received a fair trial. 

¶21 Degroot also alleges that trial counsel failed to ensure he was 

provided a fair and impartial jury by not striking a juror who indicated he was a 

mandatory reporter of sexual abuse. As support, Degroot offers only that the juror 

was biased. The record, however, refutes this given that the juror in question 
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agreed he “could be fair and impartial and open minded” notwithstanding his prior 

experience with reporting abuse. This conclusory argument fails. 

d. Failure to present impeachment evidence.

¶22 Degroot contends that trial counsel was ineffective because he failed

to impeach two of the State’s witnesses with evidence that they purportedly had 

motive to testify falsely because Degroot previously was involved in civil disputes 

with them. Degroot’s motion failed to identify the witnesses, explain the nature of 

the litigation, or develop a cogent argument as to impeachment. This undeveloped 

argument fails. 

e. Failure to object.

¶23 Degroot argues that trial counsel was ineffective for failing to object 

to testimony that Degroot had committed a burglary, that he gave A.L. something 

to drink from a beaker, and that A.L. was telling the truth. Degroot further 

contends that trial counsel failed to object to what he contends was an improper 

closing argument by the prosecutor. Even if we assume without deciding that this 

constitutes deficient performance, Degroot failed to adequately allege that he was 

prejudiced. He does not explain why the outcome of trial would have been 

different if counsel had successfully objected to the testimony at issue and during 

the prosecutor’s closing argument. 

¶24 Without any additional explanation, Degroot asserted that he was 

prejudiced because the jury could conclude that if A.L. was telling the truth, then 

the other victim, K.S., was too. Degroot additionally asserted that the improper 

closing argument prompted the jurors to consider factors other than the evidence 

when reaching their verdict and that the jury’s confusion was evident in its notes 
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to the court. However, Degroot never develops his argument beyond this and does 

not describe the notes’ contents. These conclusory allegations are insufficient to 

show prejudice.

f. Failure to call witnesses.

¶25 Degroot additionally argues that trial counsel was ineffective for 

failing to secure material witnesses crucial to the defense; namely, one of his coworkers and a forensic interviewer. He asserts that his co-worker would testify

that he and Degroot worked with K.S. painting houses, which would have 

“establish[ed] a genuine reason outside of a perverted presumption for the 

association.” Degroot does not explain whether he told trial counsel about his coworker or develop an argument as to how the co-worker’s testimony would have 

led the jury to believe that Degroot was not guilty of the charges involving K.S. 

¶26 As to the forensic examiner, Degroot highlighted A.L.’s testimony 

reflecting that A.L. spoke with the examiner and trial counsel’s acknowledgment 

that she did not call the examiner as a witness. Degroot does not, however, 

develop an argument as to what information trial counsel could have elicited from 

the forensic examiner or how it would have changed the outcome of his trial. 

These allegations are insufficient to show prejudice.

(3) Degroot has not shown that the prosecutor and the circuit court 

engaged in misconduct. 

¶27 We turn our attention to Degroot’s seven claims of prosecutorial 

misconduct and five claims of judicial misconduct. Degroot contends that the 

prosecutor violated Brady v. Maryland, 373 U.S. 83 (1963), manipulated disputed 

evidence, suppressed accusations, violated a witness sequestration order, presented 
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surprise evidence, elicited perjured testimony, and elicited undisclosed evidence. 

In terms of judicial misconduct, Degroot claims the circuit court interfered with 

his review of discovery, lent its judicial power to the State, provoked a potential 

mistrial, refused to appropriately instruct the jury based on its fear that Degroot

would not be convicted, and engaged in egregious conduct to prevent acquittal. 

¶28 Degroot’s briefing contains numerous complaints about the circuit 

court proceedings in these matters. The briefs fail, however, to develop coherent 

arguments that apply relevant legal authority to the facts of record, and instead 

rely largely upon transcript excerpts taken out of context coupled with conclusory 

and speculative assertions. “A party must do more than simply toss a bunch of 

concepts into the air with the hope that either the ... court or the opposing party 

will arrange them into viable and fact-supported legal theories.” State v. Jackson, 

229 Wis. 2d 328, 337, 600 N.W.2d 39 (Ct. App. 1999). Consequently, this court 

need not consider arguments that are unsupported by adequate factual and legal 

citations or are otherwise undeveloped. See State v. Pettit, 171 Wis. 2d 627, 646-

47, 492 N.W.2d 633 (Ct. App. 1992) (undeveloped legal arguments).

¶29 While we make some allowances for the failings of parties who, as 

here, are not represented by counsel, “[w]e cannot serve as both advocate and 

judge,” id. at 647, and will not scour the record to develop viable, fact-supported 

legal theories on the appellant’s behalf, Jackson, 229 Wis. 2d at 337.

¶30 Here, Degroot has failed to adequately develop his arguments as to 

prosecutorial and judicial misconduct legally and to properly support the 

arguments factually. Therefore, we affirm on this basis. 
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By the Court.—Judgments and order affirmed. 

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

RULE 809.23(1)(b)5. (2019-20).