COURT OF APPEALS

DECISION

DATED AND FILED

November 26, 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 No. 2018AP2401-CR Cir. Ct. No. 2016CF2965

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JONATHAN A. ORTIZ-RODRIGUEZ,

DEFENDANT-APPELLANT.

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

Milwaukee County: JEFFREY A. WAGNER, Judge. Affirmed. 

Before Brash, P.J., Dugan and Fitzpatrick, JJ.

¶1 BRASH, P.J. Jonathan A. Ortiz-Rodriguez appeals from his 

judgment of conviction for one count of first-degree sexual assault of a child under 

the age of thirteen, to which he pled guilty. He also appeals from an order of the 

trial court denying his postconviction motion without an evidentiary hearing.
No. 2018AP2401-CR

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¶2 Ortiz-Rodriguez seeks to withdraw his plea on the ground that it was 

not knowingly, intelligently, and voluntarily entered as a result of ineffective 

assistance by his trial counsel. Pursuant to the plea agreement, the parties were 

“free to argue” at sentencing regarding an appropriate sentence; however, OrtizRodriguez asserts that counsel incorrectly informed him that the State was going 

to recommend an initial confinement term of five to eight years. Instead, the State 

recommended an initial confinement term of twenty years, which the trial court 

ultimately imposed. 

¶3 The trial court denied Ortiz-Rodriguez’s postconviction motion 

without an evidentiary hearing, finding that he had not alleged sufficient facts in 

his motion to demonstrate that he was prejudiced by this claimed error. We 

affirm.

BACKGROUND

¶4 On June 25, 2016, Ortiz-Rodriguez’s biological daughter, M.O., who

was born in August 2010, was diagnosed with gonorrhea. Around the same time, 

Ortiz-Rodriguez was diagnosed with gonorrhea as well. M.O. was interviewed by 

Milwaukee police, and told them that her “private parts were hurting because her 

dad did something really bad.” She said that her dad had touched and licked her 

private parts, and that he had “put his private parts inside her private parts about 

seven times.” She further stated that he had told her to “be quiet” and “don’t ask 

mom.” 

¶5 Ortiz-Rodriguez was charged in July 2016 with repeated sexual 

assault of a child. Upon conviction, this offense requires a minimum term of 

initial confinement of twenty-five years. Ortiz-Rodriguez entered into a plea 
No. 2018AP2401-CR

3

agreement to an amended charge of one count of sexual assault of a child, which 

had no mandatory minimum term of initial confinement.

¶6 At the plea hearing on October 6, 2016, the State noted that “both 

sides are free to argue on this amended plea deal.” Counsel for Ortiz-Rodriguez 

agreed that was correct. Additionally, this information was included in an 

attachment to the Addendum to Plea Questionnaire, which was signed by OrtizRodriguez. 

¶7 At the sentencing hearing on October 25, 2016, the State again noted 

that the parties were free to argue for an appropriate sentence, and recommended 

twenty years of initial confinement with twenty years of extended supervision. 

The State reminded the trial court that the amended charge did not carry a 

mandatory minimum sentence of twenty-five years of initial confinement, as the 

original charge had. In contrast, Ortiz-Rodriguez requested a range of five to 

seven years of initial confinement. 

¶8 The trial court noted that it was important for Ortiz-Rodriguez to 

“understand how horrific and terrible this offense was.” It observed that he 

required “significant assessment and treatment” as a sex offender, and that it 

needed to impose a sentence that would “protect the community from [him]” 

because “that treatment is going to be significantly long” based on the aggravating 

facts of the case. Therefore, the court imposed a sentence of twenty years of 

initial confinement with ten years of extended supervision. 

¶9 Ortiz-Rodriguez filed a postconviction motion in October 2018, 

seeking withdrawal of his plea. He asserted that his trial counsel was ineffective 

in that counsel told him that the State had agreed to recommend a sentence of five 

to eight years of initial confinement. He argued that he would not have entered the 
No. 2018AP2401-CR

4

guilty plea but for this error by his trial counsel, and instead would have insisted 

on going to trial. 

¶10 The trial court denied the motion. It found that Ortiz-Rodriguez had 

failed to allege any facts to show why he would have rejected the plea offer, which 

“drastically altered his incarceration exposure, and risked a conviction on a 

charge ... [with] a minimum 25 years of confinement.” Therefore, the court held 

that he had not demonstrated that he was prejudiced by the alleged error of trial 

counsel. This appeal follows.

DISCUSSION

¶11 On appeal, Ortiz-Rodriguez maintains that the facts he alleged in his 

postconviction motion were sufficient to entitle him to an evidentiary hearing. A 

defendant seeking to withdraw his or her plea after sentencing “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). The “mere assertion” of manifest 

injustice, however, “does not entitle a defendant to the granting of relief[.]” State 

v. Allen, 2004 WI 106, ¶14, 274 Wis. 2d 568, 682 N.W.2d 433 (citation and one 

set of quotation marks omitted).

¶12 Indeed, a defendant is not automatically entitled to an evidentiary 

hearing relating to his or her postconviction motion. State v. Bentley, 201 Wis. 2d 

303, 309, 548 N.W.2d 50 (1996). Rather, the trial court is required to hold an 

evidentiary hearing only if the defendant has alleged “sufficient material facts that, 

if true, would entitle the defendant to relief.” Allen, 274 Wis. 2d 568, ¶14. This is 

a question of law that we review de novo. Id., ¶9.
No. 2018AP2401-CR

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¶13 If, on the other hand, the postconviction 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 trial court, in its discretion, may either grant or deny a hearing. Id. We will 

uphold such a discretionary decision if the trial court “has examined the relevant 

facts, applied the proper legal standards, and engaged in a rational decisionmaking process.” Bentley, 201 Wis. 2d at 318. 

¶14 Manifest injustice as it relates to plea withdrawal may be 

demonstrated by proving ineffective assistance of counsel. State v. Taylor, 2013 

WI 34, ¶49, 347 Wis. 2d 30, 829 N.W.2d 482. To prove ineffective assistance of 

counsel, a defendant must show that his trial counsel’s performance was deficient 

and that the deficiency prejudiced the defense. Strickland v. Washington, 466 

U.S. 668, 687 (1984). The defendant “must prevail on both parts of the test to be 

afforded relief.” Allen, 274 Wis. 2d 568, ¶26. We review de novo “‘the legal 

questions of whether deficient performance has been established and whether it 

led to prejudice rising to a level undermining the reliability of the proceeding.’” 

State v. Roberson, 2006 WI 80, ¶24, 292 Wis. 2d 280, 717 N.W.2d 111 (citation 

omitted). However, “[a] court need not address both components of this inquiry if 

the defendant does not make a sufficient showing on one.” State v. Smith, 2003 

WI App 234, ¶15, 268 Wis. 2d 138, 671 N.W.2d 854. 

¶15 A claim of ineffective representation requires that a postconviction 

evidentiary hearing be held “to preserve the testimony of trial counsel.” State v. 

Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979). Still, as noted 

above, the trial court need not grant an evidentiary hearing if the postconviction 

motion is insufficient. Roberson, 292 Wis. 2d 280, ¶43. To that end, the motion 

“must include facts that ‘allow the reviewing court to meaningfully assess [the 
No. 2018AP2401-CR

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defendant’s] claim.’” Allen, 274 Wis. 2d 568, ¶21 (citation omitted; brackets in 

Allen). In other words, the motion must include a “factual basis” that supports the 

assertions in the motion. Id. 

¶16 In its decision denying Ortiz-Rodriguez’s motion, the trial court did 

not address the deficiency prong of the Strickland test, assuming for the sake of 

argument that Ortiz-Rodriguez’s trial counsel had told him that “free to argue” 

meant that the State would make a recommendation of five to eight years of initial 

confinement. Instead, the court focused on the prejudice prong. See Strickland, 

466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on the 

ground of lack of sufficient prejudice, which we expect will often be so, that 

course should be followed.”). 

¶17 In its analysis, the trial court noted that Ortiz-Rodriguez’s 

allegations of prejudice “amount[ed] to a single sentence” which stated that he was 

“prejudiced by counsel’s deficient performance because he would not have entered 

his guilty plea but for counsel’s error.” The court, quoting Bentley, found this 

“‘bare-bones allegation’ that [Ortiz-Rodriguez] would have pled differently” to be 

“no more than a ‘conclusory allegation,’” which is not sufficient to demonstrate 

prejudice. See id., 201 Wis. 2d at 316 (citation omitted). 

¶18 We agree. As noted above, a postconviction motion “must include 

facts that ‘allow the reviewing court to meaningfully assess [the defendant’s] 

claim.’” See Allen, 274 Wis. 2d 568, ¶21 (citation omitted; brackets in Allen). As 

the trial court pointed out, had Ortiz-Rodriguez not entered into the plea 

agreement, he “would have faced highly incriminating direct and circumstantial 

evidence,” such as the forensic interview of M.O., M.O.’s gonorrhea diagnosis, 

and the fact that Ortiz-Rodriguez had also been diagnosed around that same time. 
No. 2018AP2401-CR

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Furthermore, M.O.’s mother, Y.H., had given a statement regarding a conversation 

she had with a prostitute who was at Ortiz-Rodriguez’s house: the prostitute had

told Y.H. that Ortiz-Rodriguez had asked the prostitute about sexually transmitted 

diseases; that he had admitted to the prostitute that he had given gonorrhea to his 

daughter; and that he was seeking a way to explain M.O.’s diagnosis. 

¶19 Moreover, the trial court pointed out that the plea agreement 

favorably altered Ortiz-Rodriguez’s incarceration exposure, in that it eliminated a 

charge that upon conviction would have resulted in a twenty-five year mandatory 

minimum term of initial confinement. Therefore, the court determined that he had 

not alleged sufficient facts to entitle him to an evidentiary hearing. 

¶20 Ortiz-Rodriguez argues that there are no additional facts to allege, 

because “[o]f course” he would take the favorable plea offer that he alleges his 

trial counsel relayed to him, even if he had been determined to go to trial. He 

further contends that requiring more facts than that would mean that “a motion for 

plea withdrawal based on misadvice about the plea agreement simply cannot be 

pled to secure a hearing. Ever.” To explain his argument, he notes the holding in 

Hill v. Lockhart, 474 U.S. 52 (1985), where the defendant claimed ineffective 

assistance of counsel based on his trial counsel’s misinformed him regarding his 

parole eligibility. Id. at 53. The United States Supreme Court held that the 

postconviction motion had failed to allege “special circumstances that might 

support the conclusion that he placed particular emphasis on his parole eligibility 

in deciding whether or not to plead guilty.” Id. at 60. 

¶21 Ortiz-Rodriguez argues that his postconviction motion satisfies the 

standard set forth in Hill. He infers that he is not required to plead any “special 

circumstances” in his postconviction motion because his understanding of the plea 
No. 2018AP2401-CR

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agreement—a twelve-to-fifteen-year difference in initial confinement—was so 

significant that it was obviously his reason for accepting the plea, and no further 

factual allegations are necessary. In other words, Ortiz-Rodriguez argues that the 

courts should make assumptions regarding a defendant’s reasoning as opposed to 

requiring specific factual allegations.

¶22 Under this reasoning, in the absence of factual allegations we are 

apparently to assume that Ortiz-Rodriguez placed a greater emphasis on the 

State’s presumed sentencing recommendation than on the plea agreement itself, 

which was beneficial to Ortiz-Rodriguez—a reduced charge that required no 

mandatory minimum term of initial confinement, generally considered a favorable 

outcome. This argument also requires us to disregard the fact that the trial court, 

regardless of plea negotiations, is not required to accept the State’s sentencing 

recommendation. See State v. Williams, 2002 WI 1, ¶24, 249 Wis. 2d 492, 637 

N.W.2d 733 (“A sentencing court is not bound or controlled by any understanding 

between an accused and the State regarding the sentence[.]”). Based on these 

considerations—and due to Ortiz-Rodriguez’s failure to make any specific factual 

allegations to show otherwise—we agree with the trial court that Ortiz-Rodriguez 

has not demonstrated that he was prejudiced by the alleged misadvice of trial 

counsel. 

¶23 Indeed, under the reasoning presented by Ortiz-Rodriguez, the trial 

court would essentially always have to grant evidentiary hearings for 

postconviction motions seeking plea withdrawal based on ineffective assistance of 

counsel as long as a defendant makes “a mere conclusory allegation of prejudice 

to obtain a hearing[.]” See Bentley, 201 Wis. 2d at 317. This directly contradicts 

our supreme court’s holding in Bentley—to which we are bound—which 
No. 2018AP2401-CR

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recognized that such allowances would frustrate “the fundamental interest in the 

finality of guilty pleas[.]” Id. 

¶24 Thus, following our supreme court’s directive in Bentley, we reject 

Ortiz-Rodriguez’s argument that his postconviction motion contained sufficient 

facts that would entitle him to an evidentiary hearing. See Allen, 274 Wis. 2d 568, 

¶21. We therefore affirm the trial court’s denial of his postconviction motion 

without granting a hearing. See Bentley, 201 Wis. 2d at 318.

By the Court.—Judgment and order affirmed. 

Not recommended for publication in the official reports.