### COURT OF APPEALS DECISION DATED AND FILED January 9, 202 4

Samuel A. Christensen 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 W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2022AP1064

- CR Cir. Ct. No. 2017CF533 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III

S TATE OF W ISCONSIN ,
P LAINTIFF - R ESPONDENT ,

V .
M AURICIO A GUILA ,
D EFENDANT - A PPELLANT .

APPEAL from a judgment of the circuit court for Brown County:
TIMOTHY A. HINKFUSS , 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 W IS . S TAT . R ULE 809.23(3).
¶ 1 PER CURIAM. Mauricio Aguila appeals from a judgment convicting him of second

- degree recklessly endangering safety , which was enteredNo. 2022AP1064

- CR

2 upon revocation of his defe rred judgment agreement (DJA). Aguila challenges the circuit court’s denial of his motion for plea withdrawal. He claims that his defense counsel provided constitutionally ineffective assistance during plea negotiations by providing him incorrect information regarding the DJA and his pleas to other misdemeanor charges and by failin g to present him with discovery information
that undermined the witne sses’ report s . He also argues that these failures rendered his pleas not knowin g, intelligent, and voluntary.

¶ 2 For the reasons that follow, we conclude that defense co unsel did not perform deficiently and that Aguila has failed to establish a manifest injustice requiring withdrawal of his pleas . Accordin gly, we affirm the judgment of

con viction

.
BACKGROUND

¶ 3 Aguila was charged with crimes in two sep arate cases. First, in Brown County case No. 2017CF533 , Aguila was accused of second

- degree recklessly endangering safety, with use of a dangerous weapon, and disorderly
conduct for pointing a gun at Lynn , a neighbor of Aguila, while L ynn was outside
her home on June 12, 2016. 1 L ynn was attempting to stop a man who was confronting neighborhood residents about loud music because Lynn had been advised by police previously no t to confront the neighbors. She claimed that a Hispanic male

— whom she later identified as Aguila

— approached her with a “gun in his right ha nd pointing it directly at her” with his “finger

... in the trigger area .”

1 Pursuant to the policy underlying W IS

. S TAT

. R ULE 809.86(4) (2021

- 22), we use pseudonyms when referring to the victims in this case. All references to the Wisconsin Statutes are to the 2021

- 22 version unless otherwise noted.No. 2022AP1064

- CR

3 L ynn stated that she “put her hands up in the air and exclaimed there w as a gun and ‘call the cops.’” Later , L ynn identified Aguila in a photo array, stating th at she was “‘90%’ positive” the first time she reviewed the photos that Aguila was the man who had the gun, and then “100%” positive that Aguila was the man who had the gun upon a second review

. Law enforcement never recovered the weapon, but officers did recover a gun case in a vehicle located at the scene.

¶ 4 Second, in Brown County case No. 2017CF1294, Aguila was accused of disorderly conduct for a domestic dispute involving hi s girlfriend,
Michelle , on August 5, 2017. 2 According to the State, “there was an argument at the defendan t ’s home that got out of hand.”

¶ 5 These cases were resolved by a global plea agreement. The State ’s
offer required that Aguila ent er pleas to the felony second

- degree reckless ly endangering safety count and two counts of misdemeanor disorderly conduct in
case Nos. 2017CF533 and 2017CF1294

. Upon acceptance of his plea s , Aguila’s conviction on the felony count would be deferred pending his successful completion of a DJA. After consulting with defense counsel, Aguila accepted the
State’ s offer.

¶ 6 On March 16, 2018, a t the plea and sentencing hearing, the circuit court reviewed the plea questionnaire form tha t Aguila completed and signed.
Attached to the plea questionnaire form was a page that listed the charging details for the three charges , the factual basis for each charge , and the maximum penal tie s; a page detailing the terms of the State’s offer; and the jury instructions

2 Aguila was also charged with criminal damage to property and felony ba il jumping in the second case.No. 2022AP1064

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4 for the offenses. After an in

- depth colloquy, the court accepted Aguila’ s pleas
and

— after specifically confirming that Aguila was aware of the DJA’s
conditions

— approved the DJA.

¶ 7 The circuit court then pro ceeded directly to sentencing. The State recommended that the court impose two years of probation on the two misdemeanor disorderly conduct counts with no additional jail time

. Defense counsel concurred with the State’s recom mendation. Ultimately, the court accepted the parties’ recommendation, withheld sentence on the disorderly conduct charges , and placed Aguila on probation for two years on each count

. 3
The court concluded i ts sentencing by commenting to Aguila that defense counsel “d id a very good job here. In fact, you don’t have a felony if you do what you’re supposed to do in the next two years. That’s worth a lot. And stay away from these people, do you understand tha t? ” Aguila replied, “I do, Your Honor.”

¶ 8 I n 2019 , t he State f iled new charges against Aguila after police were dispatched for a nother domestic dispute between Aguila and Michelle. Allegedly,

a verbal altercation between Michelle and Aguila escalated when Aguila “grabbed [ Michelle ] by the neck” and “ she was losing her breath and was unable to talk,
because he squeezed so hard on her neck.” The State charged Aguila in Brown County case N o. 2019CF905 with strangulation and suffocat ion, battery,

3 Regrettably, t he St ate filed an incorrect amended Information, which changed the charges of second

- degree recklessly endangering s afety and disorderly conduct in case No. 2017CF533 to two counts of intentionally pointing a firearm at a person

. At a later hearing, the State explained that the amended Information was filed as part of a separate plea agreement before defense counsel “c onvinced the [S]tate to switch that to a [DJA] on the original charge.... Unfortunately, that amended [Information] didn’ t get withdrawn.” As a result of that incorrect Information, the circuit court then entered an incorrect judgment of conviction, placin g Aguila on probation for two years for intentionally pointing a firearm at a person , instead of for disorder ly conduct.No. 2022AP1064

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5 disorderly conduct, and bail jumping. This case was tried to a jury, and Aguil a was acquitted on all charges.

¶ 9 As a result of the new charges, however, the State moved to revoke Aguila’s probation and DJA. According to th e State, Aguila’s probation was

re voked for violating his no

- contact order with Michelle and for causing Michelle
harm. Aguila did not contest his revocation, a decision he made prior to consulting with his attorney and by relying on the advice of his probation o fficer. At the sentencing after revocation, Aguila stat ed, “I know I did violate my no[

- ] contact [order] and that I am guilty of [that allegation] and for that I’ll take my punishment.”

¶ 10 Due to the State’s error that resulted in an incorrect judgment of conviction, see supra note 3 , the circuit court sentence d Aguila to six months in jail for intentionally pointing a firearm at a person, rather than for diso rderly
conduct

. That six

- month jail sentence exceeded the statutory m aximum for a disorderly conduct charge by three months

. See W IS

. S TAT

. §§ 947.01(1), 939.51(3)(b)

. The court also sentenced Aguila to ninety days in jail , to be served concurrently, on the disorderly conduct count in case No. 20 17CF1294.

¶ 11 In a separate proceeding, the State moved to revoke the DJA on t he ground that Aguila failed to comply with the agreement’s conditions. Those conditions included successfully completing probation on the disorderly conduct
convictions an d “commit[ t ing] no further acts whic h rise to the level of probable
cause of a violation of the criminal la ws of the State of Wisconsin.” On July 28, 2020, the circuit court granted the State’s motion and revoked the DJA, ordered a presentence investigati on report, and set a date for sentencing.No. 2022AP1064

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6 ¶ 12 Shortly thereafter, Aguila retained new counsel (hereinafter, postconviction counsel) and moved to vacate th e DJA and for plea withdrawal. In Aguila’ s motion, he alleged that: (1) defense counsel provided constitutionally
ineffective assistance ; (2) “he was not fully aware of the extent of Brady [ 4 ] evidence related to a key witness an d investigating officer, former

- Lieutenant Robert Korth, at the time he entered his plea [s] and accepted the [DJA] ” ; 5 and (3) “ he did not fully understand the evidence against him and that there were problems with the case that would make it difficult for the State to prove the case against him at trial , ” listing nine facts about th e case of which he was “unawar e.” Aguila claimed that he had wanted to go to trial because he was innocent of the charges

. ¶ 13 According to Aguila, defense counsel was deficient because he “provided him inaccurate information about the [DJA] and [the] consequences of
its acce ptance and his plea [s],” including that by entering his plea s he was “not going to be found guilty of a felony” and that “his probation could be terminated

at 12 months with good behavior.” He also claimed that he was “ never advised by
counsel tha t waiving his [probation] revocation hearing rather than fighting the

4 Brady v. Maryland , 373 U.S. 83 (1963)

.

5 Aguila also filed a motion to compel production of Brady evidence. Citing a news report, Aguila explained that “[s]ubsequent investigation has revealed that throughout the time of [the plea] negotiations and ahead of the plea in Mr. Aguila’s case,

... Korth was under investigation for participating in racist, sexist, and illegal h arassment of minority coworkers at the Green Bay Police Department. ” Korth was one of the officers on the scene at the time of Aguila’s arrest. Aguila alleged that had he known this information about Korth prior to entering his plea s , it “would have been valuable Brady evidence.” This issue was discussed at the evidentiary hearing, and the circuit court later denied the motion, stating that the allegations against Korth “had to do with things other than telling the truth,” he was not on the State’s witnes s list, and he was not a material witness. Aguila does not renew this Brady claim on appeal.No. 2022AP1064

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7 matter would give the State the abi lity to revoke his” DJA. Finally, he asserted that “there were Bangert [ 6 ] defic iencies during the plea hearing ” that “[f]urther impact[ed]” his “under standing of the agreement,” and “he did not receive all the necessary admonishments.”

¶ 14 The circuit court held an evidentiary Machner 7 hearing over two days , at which Aguila and defense counsel testified. T he court then iss ued a written order denying Aguila’s plea withdrawal motion, concluding that Ag uila had not demonstrated that defense counsel’s performance was deficient or that his plea s were not knowingly, voluntarily, and intelligently entered

. The court specifically found that Aguila’s testimony was not credible concerning his alleged
discussions with defense counsel.

¶ 15 The circuit court ultimately sentenced Aguila to time served for the
second

- degree reckless ly endangering safety count. At sentencing, the court stated
that it was “cognizant of the sentence in that he was given six months on a probation revocation [ on the intentionally pointing a firearm count]. That was beyond the maximum time th at he was supposed to receive” had the jud gment of conviction been correctly entered. The court observed that Aguila “needs credit for the time he sat and I’m giving it to him because he shouldn’t have sat that time in jail, that ’s the bottom line.” Aguila appeals

.

6 State v. Bangert , 131 Wis. 2d 246, 389 N.W.2d 12 (1986)

.

7 State v. Machner , 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979)

.No. 2022AP1064

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8 DISCUSSION

¶ 16 After sentencing, “a plea will not be disturbed unless the defendant establishes by clear and convincing evidence that failure to withdraw the guilty or no contest plea will result in a manifest injustice.” State v. Taylor , 2013 WI 34, ¶48, 347 Wis. 2d 30, 829 N. W.2d 482. Here, Aguila was subject to a DJA , and the manifest injustice stan dard applies to Aguila’s motion to withdraw his plea
after the DJA was ordered. See State v. Daley , 2006 WI App 81, ¶ ¶16, 18, 292
Wis. 2d 517, 716 N.W.2 d 146.

¶ 17 A defendant can demonstrate a manifest injustice by showing that he or she did not knowingly, intelligently, and voluntarily enter his or her plea. State
v. Brown , 2006 WI 100, ¶18, 293 Wis. 2d 594 , 716 N.W.2d 906. “A plea that was

‘ no t entered knowingly, voluntarily, and int elligently violates fundamental due process, and a defendant therefore may withdraw the plea as a matter of right.’” State v. Dillard , 2014 WI 123, ¶ 37 , 358 Wis. 2d 543, 859 N.W.2d 44 (citation omitted). A defenda nt is entitled to withdraw his or her plea where he or she received misinformation if the defendant presents a “persuasive account” of why, absent the misinformation, he or she would not have entered a plea and wo uld have instead gone to trial. Id. , ¶52.

¶ 18 Another “ way to demonstrate manifest injustice is to establish that
the defendant received inef fective assistance of counsel.” Id. , ¶84 . To establish ineffective assistance of counsel, t he defendant must prove both that counsel’ s performance was deficient

— in other words, outside the wide range of profe ssionally competent assistance

— and that counsel’s errors were prejudicial. Id. , ¶¶85, 88. “Normally, judicial scrutiny of an attorney’s performance will be highly deferential.” Id. , ¶88 (citation omitted) . “To prove prejudice, a defendantNo. 2022AP1064

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9 ‘ must show that there is a reasonable pr obability that, but for counsel’ s unprofessional errors, the result of the procee ding would have been different.’” Id. , ¶95 (citation omitted)

. In the ple a withdrawal context, prejudice requires that
the defendant establish that he or she would not have pled guilty and would have
inst ead insisted on going to trial. Id. , ¶¶95

- 96. We need not address both prongs of the ineffective assistance analysis if the defendant fails to make a sufficient showing on either one. Strickland v. Washington , 466 U.S. 668, 697 (1984).

¶ 19 Both i neffective assistance of counsel claims and claims that a plea was not knowing, intelligent, and voluntary are revi ewed under a mixed standard
of review. Sta te v. Breitzman , 2017 WI 100, ¶ 37, 378 Wis. 2d 431, 90 4 N.W.2d
93 (ineffective assistance); Brown , 293 Wis. 2d 594 , ¶19 (knowing, intelligent, and voluntary plea) . The circuit court’ s factual findings are upheld unless clearly

erroneous. State v. Mayo , 2007 WI 78, ¶32, 301 Wis. 2d 642, 734 N.W.2d 115 ; Brown , 293 Wis. 2d 594 , ¶19

. The clearly erroneous standard applies to a court’s findings regarding witness credibility, and we will search the record for evidence to support the court’s findings. Dickman v. Vollmer , 2007 WI App 141, ¶14, 303 Wis. 2d 241, 736 N.W.2d 202. Whether the facts meet the legal standard s for ineffective assistance or for establishing that a plea was not knowi ng, intelligent,
and voluntary are questions of law that we review independently. Mayo , 301
Wis. 2d 642, ¶32; Brown , 293 Wis. 2d 594, ¶19.No. 2022AP1064

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10 ¶ 20 On appeal, Aguila advances essentially the same arguments for plea
withdrawal that he presented to the circuit court. 8 Aguila asserts that his defense counsel was constitutionally ineffective “for providing him fundamentally incorrect legal advice regarding the details and demands of the [DJA and] for failing to present him with favorable evidence undermining the veracity of the reporting and witness te stimony against him when he was

... deciding whether to accept the plea.” Further, he claims that had he been provided the proper
information , he would not have accepted the DJA or entered h i s pleas. Thus, Aguila argues for plea withdrawal on the basis of ineffective assistance of counsel
and on the basis that his plea s were not knowingly, voluntarily, and intelligently
entered

. ¶ 21 The State, in contrast, argues that “[t] he s ole issue presented in this appeal is whether the circuit court made clearly erroneous credibility determinations and factual findings when it held that Aguila was no t entitled to withdraw his plea [s] ” and that “the credibility determinations and factual f indings on which the circuit court relied to deny his motion are supported by the record.” (Formatting altered

. ) W e agree with the State that the court’s findings are not clearly erroneous and that, given our standard of review, we must affirm.

8 A s noted, Aguila does not rene w his Brady claim, but he does maintain that because he was unaware of the information pertaining to Korth prior to his plea s , his plea s were not knowingly, intelligently, and voluntarily entered. Aguila also does not continue to ad vance an argument regar ding his decision to waive his probation revocation hearing. Finally , he does not argue before this court that there were any Bangert deficie ncies during the plea hearing. As the State explained, Aguila’s claims on appeal are all Nelson / Bentley claims based on defense counsel’s alleged failures. See Nelson v. State , 54 Wis. 2d 489, 195 N.W.2d 629 (1972) ; State v. Bentley , 201 Wi s. 2d 303, 548 N.W.2d 50 (1996); see also State v. Howell , 2007 WI 75, ¶74, 301 Wis. 2d 350, 734 N.W.2d 48 (explaining the di fferent purposes of Nelson / Bentley and Bangert motions ).No. 2022AP1064

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11 ¶ 22 First, Aguila claims that defense counsel “ provided fundamentally incorrect legal advice ” to Aguila regarding the DJA and the plea bargain. Specifically, Aguila asserts

— and he also testified to the same

— that he was told the following in correct information: (1) “ the agreement would not result in [him] being found ‘guilty’ of a felony offense, though entry of a ‘guilty’ plea to the felony was a mandatory part of the offense”; (2) “ the State would be dismissing all charges related to Brown County Case [No.] 2017CF1294 when in fact the plea negotiation required that he enter a plea to a disorderly conduct charge specifically
associated with that case ”; (3) “ his probation could be terminated after service of 12 months with good behavior when in fact this was not possible as part of the [DJA] ”; and (4) “ the agreement could not be revoked simply because someone accused him of a crime for which he was innocent (a genuine concern given his position in the instant case) and that the State would hav e to prove the allegations against him before the judge would set aside the agreement. ”

¶ 23 As to Aguila’s first and second point s , Aguila identifies an email

— also presented to the circuit court

— between def

ense counsel and Aguila. In Aguila ’s email , on the eve of the plea hearing , he stated, “I have reviewed the [DJA] and I don’t really think that this offer is any good given that I will be pleading guilty to the felony charges and waiving my court right if I get a ccused of
another cri me like

... what landed me in this situation.” Defense counsel respond ed:

We can discuss at court. Please m eet me at 10 on the

3rd floor. It’s important to note that all charges pertaining to [Michelle ]’s case will be dismissed for good. The fel ony charge you’ll plea to is on the weapon case, but the j udge will not find you guilty. I can explain your other options as well. See you at 10.No. 2022AP1064

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12 According to Aguila, defense counsel’s response

contains plainly incorrect information that the agreemen t does not include a plea to charges related to the other pending case, it also provides misleading information when it states that the judge will not find Mr. Aguila guilty, as the court did just that, only to later vacate the judgment if he completed the agreement.

¶ 24 At the Machner hearing, d efense counsel testified that the email exchange was “not the entirety of our discussion in this case” and that he “told [Aguila] before court” that the circuit court “wouldn’t be enter ing a judgment of conviction.” According to defense counsel, he clarified to Aguila that “if he succeeded in the deferred [agreement] it would be as if he [were] never found guilty. In other words, there would never be a judgment of conviction entered

. So practically speaking, it was as if he had never been found guilty of this charge.” (Emphasis added.) As to the case involving Michelle

— case No. 2 017CF1294

— defense counsel admitted that his comment in the email “seems to be an error,” but he explained that the “deferred agreement would have spelled out exactly what was happening with the other case”

— which it certainly did

— and that Aguila “asked a lot of questions and I think we probably had a long discussion before
court.” Further, a page attached to t he plea questionnaire , which Aguila signed
and which stated that “everything was explained to me by my attorney,” listed a
condition of no contact with Michelle and the related case number, which was then
the same case number listed for one of the disor der ly conduct counts to which he

was entering a plea.

¶ 25 Based on defense counsel’s testimony, the circuit court found that “Aguila may have had reservations about pleading but any reservations were answered in the conference that [defense co unsel] and [Aguila] had immediately prior to the plea hearing.” The court accepted defense counsel’s credibleNo. 2022AP1064

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13 testimony regarding the discussion that took plac e after the email communication. In response, Aguila claim s that there were “no notes or other documentation
substantiati ng [defense counsel’s] claims,” but sworn testimony from a witness is, in itself, sufficient factual evidence. While Aguila claims t hat the court erred in relying o n defense counsel’s testimony because “[defense] counsel had little recall of the case,” defense counsel actually testified that he “reme mber[ed] this case very well.” Thus, the court’s findings are supported by sufficient evidence in the record, and Aguila has asserted no basis for us to conclude that the court’s finding s w ere clearly erroneous on these issue s

. ¶ 26 On the third issue, Aguila identifies another email

— also presented
to the circuit court

— where Aguila inquired about early release from probation. Aguila w rote: “I have a question about a case. I have completed more than half my probation period. I remember talking with you about qualifying for an early release once I reached half of my probation. Can you help me with this? ” According to Aguila, he “had never been charged with a crime prior to this incident and never been placed on probation. Thus, [his] testimony and assertions
that this information came from [defense] counsel during the plea negotiations and
discussions of the [DJA] were plainly credi ble.”

¶ 27 T he circuit court specifically found that Aguila was “ not credible ” as
to his claim that defense counsel told him he could obtain “early release” from probation, finding that “the disc ussion did not take place.” In particular, the court credited defense counsel’s testimony that he had no memory of an early rele ase discussion with either Aguila or the State. Defense counsel explained, “I would never push a prosecutor, if I got a [DJA] , to then work in something where the
client could possibly ask fo r early release of probation.” Again, aside from Aguila’s self

- serving testimony and conclusory statement that he could haveNo. 2022AP1064

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14 obtained knowledge about early release only from defense counsel

— and not, for example, from an internet searc h or another individual

—he has presented no persuasive evidence upon which we may conclude that the court clearly erred.

¶ 28 Fi nally, as to the fourth issue

— that the DJA could not be revoked simply because someone accused him of a crime

— Agu ila testified that defense counsel told him that he “had to be convicted of something, not just accused of a crime.” Aguila claimed that had he received the correct information from defense counsel about the plea negotiations and the DJA , he would not ha v e entered into
the DJA

. ¶ 29 The circuit court did not credit A guila’s testimony on this point. It also does not appear that postconviction counsel asked defense counsel at the Machner hearing whether he actually made this statement to Aguila

. Aguila does
not reference defense counsel’s testimony on this point, and we could not find any such testimony upon our review. Instead, the court noted the exchange between itself and Aguila at the plea hearing, where the court specifically asked Aguila if he agreed with the DJA, if he signed the DJA, and if he had gone through the DJA
with defense counsel. Aguila answered affirmatively. Further, the court specifically brought Aguila’s attention to “conditions, [6.a., b. and c.] ” in the DJA,
ask ing if he wa s “aware” of those conditions. Aguila again agreed. Condition 6 .a. specifically stated that Aguila agreed to “[c] ommit no further acts which rise to the level of probable cause of a violation of the criminal laws or ordinances of the
State of Wisconsin, counties within the State of Wisconsin, or of any other state,

or of the United States of America.” (Emphasis added.) Thus, it was clearly
stated in the DJA that Aguila did not need to be convicted of a new crime for him
to violate the terms of the DJA, and Aguila told the court that he had read and
understood those terms. Further, as noted above, Aguila acknowledged that heNo. 2022AP1064

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15 understood that he need only be “accused of another crime” in his email to defense counsel prior to his plea.

¶ 30 A s the State argues, the majority of the information that Aguila claims he was misinformed about was addressed at other points in the plea process. For example, the circuit court’s written decision denying Aguila’s plea
withdrawal motio n cited the transcript of the “very detai led plea colloquy,” the

transcr ipt of the arraignment, the criminal complaint, the DJA, and the plea questionnaire a nd attached documents. In concluding that Aguila was not credible
in his assertions that defense c ounsel performed deficiently by providing incorrect information, t he court relied on the se documents, Aguila’s statements during the plea hearing that he had reviewed th e se documents with defense counsel , Aguila’s testimony at the Machner hearing that he d id in fact read the documents prior to entering his plea s , and defense counsel’s testimony that he provided Aguila the
correct information

. ¶ 31 At the Machner hearing, Aguila claimed that despite his answers to
the circuit court’s questions at the plea hearing, he did not “know what the criminal system was all about” so he “was under the impression that [his] attorney had everything figured out .” However, his claims that he merely “trusted [his] attorney” are belied by defense coun sel’s comments at the plea hearing that Aguila was “very inquisitive about all the conditions of probation as well as the deferred agreement and he read it several time s.” Additionally, in its decision, the court specifically observed that Aguila “has a h igh school education and a degree from Northeastern Wisconsin Technical College and has worked as an engineer at a local company. He clearly is educated and has an attention to detail as engineers
must.” The court found those facts “significant” to the m atter at hand

.No. 2022AP1064

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16 ¶ 32 Therefore, we conclude that Aguila failed to establish that defense counsel’s alleged errors actually occurred, and, thus, he failed to prove that defense counsel performed deficiently. Further, to the extent that these alleged errors or misunderstandings on Aguila’s part could have rendered his pleas no t knowing, intelligent, and voluntar y , based on the record in this case, the circuit court was not persuaded by Aguila’s account , and neither are we. Aguila has provided no evidence that woul d call into question the court’s credibility
determinations or factual findings , which are suppor ted by evidence in the record and are not otherwise “ in herently or patently incredible.” See Dickman , 303
Wis. 2d 241, ¶14.

¶ 33 Next , Aguila argues that defense counsel’s failure to present him
with discovery documents as well as “ the numerous problems with the evidence in the case deprived him of a knowing and voluntary choice to enter into the plea agreement.” He claims that had he “ known about this favorable evidence, he would have forgone the plea agreement and went to trial instead. ”

¶ 34 In particular, A guila asserts that he was unaware of numerous factual discrepancies related to the witness es’ statements, including discrepancies regarding the suspect’s description and the gun’s description

. At the Machner hearing, Aguila testified that defense counsel had not discussed these factual
issues with him prior to entry of his pleas

. As to the witnesses’ statements, the circuit court’s written decision adopted the State’ s argument, concluding that

“ much of what [Aguila] complains about is in the complaint.... Again, someth ing
that he [is] said to have read.”

¶ 35 W e agree with the circuit court that Aguila’s alleged factual discrepancies were evident from the complaint. For example, Aguila claims heNo. 2022AP1064

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17 “was not aware that [the witnesses’] identifications of Mr. Aguila occurred three days after the incident and after he asserted that t here had been no altercation with his family and that the women were shouting racial epithets at his fam ily on the night in question.” The complaint is clear, however, that the incident occurred on
June 12, 2016, and the witnesses provided written stateme nts on June 15 and the photo lineup occurred on June 16

— which are three and four days later , respectively

. Aguila also claims that he did not know that two other witnesses did not see a gun being pointed at Lynn. Aguila does not identify these two witnes ses in either his brief or his postconviction motion, but from the complaint, the witnesses appear to be Lynn’s wife and Lynn’s son. A gain, the complaint states
that Lynn ’s wife saw a “shorter Latino male

... holding a silver revolver

... and
stated he had it down at his right side holding it with his right hand .” The complaint continues: “A t no point in time did [ Lynn ’s wife] see the gun pointed at anyone, but she did hear [L ynn ] question the male about why he needed a weapon.” As for the second witness, i f Aguila is referring to Lynn’s son, according to the complaint, h e never cam e into the alley and therefore would not
have seen a gun.
¶ 36 Further, Aguila claims that he was not aware “that the two primary witnesses reported seeing a different number of men in the alley during the confrontation, nor was he aware that both women told police that prior to their arrival, they saw a Jeep Liberty carrying four Hi spanic men fleeing the scene.”
Here , too, the complaint is clear that L ynn rep orted that she encountered two men, while her wife reported that there were three men, and both women noted “a blue Jeep Libert y.”

¶ 37 Finally, Aguila has identified discrepancies with the gun

— which
was never found

— suggesting that the gun t hat fit into the gun case that lawNo. 2022AP1064

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18 enforcement recovered “would have been impossible to conceal in a back jeans pocket as described by the witnesses” because “the gun that fit into that

case

... weighed nearly three pound s and was nearly a foot long.” Howev er, the witnesses reported that the gun had “a long barrel” and that when the suspect “put the gun into his right back pocket

... it was weighing down his pan ts slightly.”

¶ 38 In reply, Aguila counters that “there were issues with the
identif ication that do not appear in the criminal complaint, specifically misidentifying his height, age, l ength of hair and facial hair.” We disagree with Aguila that the differences regarding the suspect’s identification were not
contained within the complaint . According to the complaint, the initial witness report identified the suspect “ as approximately 5’5” to 5 ’ 7” tall, around 180 [pounds] , with a shaved head, sunglasses, a white button up shirt, and jeans .” T he complaint then states that later , written reports described that suspect as “ 5’8”, approximately 180 [pounds] with dark short buzzed hair, approximately 40 to 42 years old wearing aviator sunglasses, a white b utton down and stone wash [ed] jeans” and as “ 5’6”, 5’8”, approximately 180 [poun ds] with short hair and clean.” The differences Aguila now highlights

— namely, that he was thirty year s old at the time of his arrest; that he is five feet, four inches tall ; and that “he had a shaved head and goatee as documented in his booking photo”

— wou ld have been evident
to him on his review of the complaint

. ¶ 39 Aguila also claims that the information regarding Korth was not made known to him prior t o accepting the State’s offer. D efense counsel specifically testified that he “had no idea wh at was going on with

... Korth at that time.” Defense counsel explained that he was concerned with what the victim would have testified to, not Korth, and had he known about Korth’s disciplinary proceedings, he did not “know [if he] would have made a differentNo. 2022AP1064

- CR

19 recommen dation” to Aguila. He also noted that the issue with Korth had come up
in another case , “[a]nd the advic e to that client was the same.”

¶ 40 On appeal, Aguila makes much out of Korth’s involvement i n this
case. The State, however, did not list Korth as a witness and did not intend to call
Korth at trial

. Further, the complaint mentions only that Korth was at the scene and that “Korth called out that in front of [a home] there was loud music and there
were 2 male Hi spanics in the driveway; one with a white shirt and jeans, and one
with a gray hoodie and khaki shorts .” Aguila cites additional information
contained in a computer aided dispatch report that Korth allege dly saw Aguila with a weapon, but that information was not included in the complaint

. Korth’s police report, created after the incident, states that he encountered Aguila from a distance, but he “was to o far to se e if he had empty hands or not. Based on my training and experience, [Aguila’s] body language was consistent with someone pointing a handgun at me. ”

¶ 41 When this information was brought to the circuit court’s attention, it agreed with the State that “Korth said he didn’t know whether [Aguila] had empty hands or not” and that he did not “actually [see] a firearm pointed at him,” calling Agui la’s position an “overreach.” Accordingly , t he court specifically found that
Korth was not a material witness and that he “ offer[ed] nothing to the defense to
be called as a witnes s

. ” Aside from disagreeing with the court’s determination
that information regarding Korth was not relevant, Aguila does not offer anythingNo. 2022AP1064

- CR

20 other than his contrary opinion to explain why the court’s finding was clearly

erroneous. 9

¶ 42 I n i ts written decision denying Aguila’s motion , the circuit court specifically stated: “I am finding that the reason [Aguila] is complaining about the [DJA] is that he did not successfully complete the deferred agreement a nd now has a felony conviction.” At sentencing, the court reiterated that it did not “believe” Aguila’ s purported reasons for seeking plea withdrawal , stated that Aguila “ knew exactly what [he was] doing , ” and observed that “ it’s disingenuous to say that he didn’t understand what was going on. I think [he] more than understood. ” Aguila
has not shown on appeal that the court’s findings are clearly erroneous. Based on the court’s factual findings , we cannot conclude that the court erred in determining that defense counsel did not provide co nstitutionally ineffective assistance and that Aguila’s plea s were knowing, intelligent, and voluntar y

.

By the Court.

— Judgment affirmed.
This opinion will not be published. See W IS

. S TAT

. R ULE 809.23(1)(b)5.

9 According to Aguila, his defense attorney’s testimony that “he does not focus on what the officers say in their reports, only what ‘the victim’s going to say,’ certainly cannot be considered good strategic advice in almost any case, and particularly this one where Mr. Aguila was arrested on scene only because of the statements of Mr. Korth.” Aguila cites to Record 85 for that proposition, but Record 85 does not appear to be included in the appella te record. Our independent investigation revealed that Record 85 of the circuit court record was a hearing notice. As the appellate record stands, the complaint does not suggest that Aguila was arrested “only because of the statements” of Korth. Aguila was arrested because he fit the initial description of the suspect and did not immediately comply with law enforcement instructions.