2013 WI 61

SUPREME COURT OF WISCONSIN

CASE NO.: 2011AP450-CR

COMPLETE TITLE: State of Wisconsin,

Plaintiff-Respondent,

v.

Julius C. Burton,

Defendant-Appellant-Petitioner.

REVIEW OF COURT OF APPEALS DECISION

Reported at 340 Wis. 2d 497, 812 N.W.2d 539

(Ct. App. 2012 – Unpublished)

OPINION FILED: July 10, 2013

SUBMITTED ON BRIEFS:

ORAL ARGUMENT: January 11, 2013

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Milwaukee

JUDGE: Patricia McMahon/Kevin E. Martens

JUSTICES:

CONCURRED:

DISSENTED:

NOT PARTICIPATING:

ATTORNEYS:

For the defendant-appellant-petitioner, there briefs by

Esther Cohen Lee and Hall, Burce and Olson, S.C., Milwaukee, and

oral argument by Esther Cohen Lee.

For the plaintiff-respondent, the cause was argued by Sally

L. Wellman, assistant attorney general, with whom on the brief

was J.B. Van Hollen, attorney general.
2013 WI 61

NOTICE

This opinion is subject to further

editing and modification. The final

version will appear in the bound

volume of the official reports.

No. 2011AP450-CR

(L.C. No. 2009CF2823)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent,

v.

Julius C. Burton,

Defendant-Appellant-Petitioner.

FILED

JUL 10, 2013

Diane M. Fremgen

Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 DAVID T. PROSSER, J. This is a review of an

unpublished decision of the court of appeals,

1 affirming a

judgment of conviction and an order of the Milwaukee County

Circuit Court denying Julius C. Burton's (Burton) postconviction

motion to withdraw his guilty pleas. The case involves the

merits of this postconviction motion.

2

1 State v. Burton, No. 2011AP450-CR, unpublished slip op.

(Wis. Ct. App. Feb. 14, 2012).

2 The Honorable Patricia D. McMahon accepted Burton's pleas

and imposed sentence. The Honorable Kevin E. Martens denied the

motion for postconviction relief.
No. 2011AP450-CR

2

¶2 Burton pled guilty to two counts of attempted firstdegree intentional homicide. Initially, he had entered pleas of

not guilty and then not guilty by reason of mental disease or

defect (NGI),

3 but later he withdrew his not guilty pleas as part

of a plea agreement. After he was sentenced to lengthy

consecutive periods of initial confinement, however, Burton

moved to withdraw his guilty pleas.

¶3 For purposes of this review, Burton's postconviction

motion stated two grounds for plea withdrawal. First, Burton

alleged that his two trial counsel were ineffective for

permitting him to withdraw his NGI pleas inasmuch as there was

no evidence in the record that counsel had informed him of the

possibility of a bifurcated plea with the right to a jury trial

focused solely on the issue of his mental responsibility.

¶4 Second, Burton alleged that the circuit court erred in

not advising him of the bifurcated plea and trial option during

the plea colloquy, so that Burton's resulting pleas were not

knowing, intelligent, and voluntary.

¶5 The first ground alleging ineffective assistance of

counsel is usually categorized as a Nelson/Bentley motion.

4 The

second ground alleging a defective plea colloquy is usually

described as a Bangert motion.

5 The circuit court denied both

3 The terms "not guilty by reason of mental disease or

defect," "NGI," and "insanity defense" are used interchangeably

in this opinion.

4 Nelson v. State, 54 Wis. 2d 489, 195 N.W.2d 629 (1972);

State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996).

5 State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986).
No. 2011AP450-CR

3

grounds of Burton's single motion without conducting an

evidentiary hearing, and the court of appeals affirmed. We now

affirm the court of appeals.

¶6 We conclude, first, that Burton's Nelson/Bentley

motion was insufficient. The motion asserted that Burton's two

trial counsel were ineffective in not pursuing an NGI or

"insanity" defense. The motion claimed that Burton's explicit

withdrawal of that defense as part of a plea agreement must have

been based upon a failure by trial counsel to inform Burton that

he had the option of pleading guilty to the crimes but also not

guilty by reason of mental disease or defect. Significantly,

Burton's motion never alleged that his trial counsel failed to

inform Burton of this option. Instead, it merely pointed to the

absence of evidence in the record that indicated that counsel

had explained this option to Burton. The absence of record

evidence in this situation is not enough. A defendant must

affirmatively plead facts that, if true, would constitute

deficient performance of counsel. Moreover, even if deficient

performance had been properly pled, Burton's motion did not

affirmatively assert that if trial counsel had informed him of

the option of a trial focused solely upon mental responsibility,

he would have chosen that option and why he would have chosen

it.

¶7 The sufficiency of a Nelson/Bentley motion is critical

because the defendant has the burden of proof in a

Nelson/Bentley hearing. A Nelson/Bentley hearing is an

evidentiary hearing in which a defendant is permitted to prove a
No. 2011AP450-CR

4

claim that his attorney was constitutionally ineffective,

producing a manifest injustice. It is not a fishing expedition

to try to discover error.

¶8 We conclude, second, that Burton's claim of a Bangert

violation also was insufficient. Burton failed to state that,

due to a defect in the plea colloquy, he did not enter his pleas

knowingly, intelligently, and voluntarily. Because Burton did

not allege his lack of personal understanding about some aspect

of the plea process, no evidentiary hearing was necessary. In

any event, we do not find any defect in the plea colloquy. The

circuit court properly inquired as to whether Burton was

entering his guilty pleas knowingly, intelligently, and

voluntarily. The circuit court's inquiry not only followed

standard procedure, but also asked whether Burton was knowingly,

intelligently, and voluntarily withdrawing his NGI plea and

giving up the right to present an insanity defense.

¶9 We reject Burton's claim of a Bangert violation

because defendants do not have a fundamental right to an

insanity plea, and it is not essential to conduct an extensive

colloquy about NGI procedure before a defendant withdraws his

plea of not guilty by reason of mental disease or defect.

Looking forward, we do think it is better practice for circuit

courts to conduct a personal colloquy on the bifurcated NGI plea

and trial option to confirm the defendant's understanding of the

law and to head off later claims of a Bangert violation or

ineffective assistance of counsel.

I. FACTUAL BACKGROUND
No. 2011AP450-CR

5

¶10 The underlying facts of this case are undisputed. On

June 9, 2009, Milwaukee Police Officers Graham Kunisch (Officer

Kunisch) and Bryan Norberg (Officer Norberg) were on routine

patrol in the area of 3rd Street and West National Avenue on the

southeast side of Milwaukee. As the officers drove their marked

police van

6 eastbound on National Avenue, they spotted 18-yearold Burton riding his bicycle on the sidewalk, in violation of a

Milwaukee city ordinance. They did not suspect that Burton was

carrying a concealed weapon.

¶11 Because of the ordinance violation, the officers

decided to stop Burton and conduct a field interview. Officer

Norberg called out to Burton to stop, but after making brief eye

contact with them, he turned away and continued riding his

bicycle. Officer Norberg exited the vehicle, followed Burton,

and continually asked him to stop, while Officer Kunisch

followed in the police van.

¶12 Officer Norberg caught up to Burton after he turned

onto South 2nd Street. Officer Norberg grabbed Burton from

behind to gain control of him. Officer Kunisch got out of the

police van to help, as Burton was resisting. While Kunisch was

trying to gain control of Burton to perform a pat-down search,

Burton pulled out a pistol and shot Officer Norberg in the face

from a distance of about six inches. The bullet went through

Officer Norberg's lip, under his left nostril, through bone and

6 Both officers testified that in addition to driving a

marked police van, they were attired in their Milwaukee Police

uniforms with badges.
No. 2011AP450-CR

6

teeth, and exited out his face. A second and third bullet

wounded his shoulder and grazed his right knee.

¶13 Burton also shot Officer Kunisch several times.

Officer Kunisch suffered gunshot wounds to his left hand, right

shoulder, and the back of his neck. More serious, Burton shot

Officer Kunisch in his face, destroying his left eye and causing

severe damage to the left side of his skull.

¶14 Burton fled the scene and was later arrested after a

local homeowner reported that someone might be hiding in his

basement. The homeowner left his residence when he heard the

commotion from the shooting, and Burton likely entered an open

basement door while the homeowner was absent. Police ordered

Burton out of the basement, found a pistol magazine with bullets

on his person, and discovered a semi-automatic pistol in the

basement. After the police took Burton into custody, and after

Burton was advised of his Miranda rights, he confessed to

shooting Officers Norberg and Kunisch. A videotape from the

scene of the shooting corroborated Burton's account.

II. PROCEDURAL HISTORY

¶15 Burton was charged with two counts of attempted firstdegree intentional homicide by use of a dangerous weapon,

contrary to Wis. Stat. §§ 939.32, 939.63(1)(b), and

940.01(1)(a).

7 At the initial appearance, upon the request of

Burton's counsel, the court ordered that Burton's competency be

7 All subsequent references to the Wisconsin Statutes are to

the 2009-10 version unless otherwise indicated.
No. 2011AP450-CR

7

evaluated. Dr. Kenneth Smail prepared an initial report

recommending further evaluation. The subsequent evaluation,

conducted by Dr. Tracy Luchetta at the Winnebago Mental Health

Institute, determined that Burton was competent to stand trial.

Neither Burton's newly retained trial counsel, Attorneys Julius

Kim (Kim) and Jonathan LaVoy (LaVoy), nor Burton himself

objected to the evaluation's conclusion.

8

¶16 Following a preliminary hearing at which Officers

Norberg and Kunisch testified, the State filed an Information

charging the same counts stated in the Complaint. Defense

counsel entered a plea of not guilty to both charges.

Approximately one month later, defense counsel added pleas of

not guilty by reason of mental disease or defect.

¶17 Dr. Smail, a psychologist, again was appointed to

examine Burton. Dr. Smail's report

9 did not support Burton's NGI

plea.

8 The competency evaluator, Dr. Tracy Luchetta of the

Winnebago Mental Health Institute, noted that Burton "presents a

complicated combination of current and past behavioral,

perceptual, cognitive, and mood disturbances." Nevertheless,

Dr. Luchetta found Burton competent to stand trial. In

particular, Dr. Luchetta determined that Burton was

"exaggerating the subjective severity of his symptoms. . . .

Mr. Burton's apparent perceptual disturbances do not interfere

with his accurate perception of reality."

9 As part of his report, Dr. Smail personally interviewed

Burton, reviewed Burton's health and mental health records, his

competency evaluation, his academic reports, and various other

materials related to Burton's case.
No. 2011AP450-CR

8

¶18 Dr. Smail reported that Burton had a history of mental

health problems starting at age seven, when Burton was treated

for hearing voices. Dr. Smail noted that Burton was treated as

recently as April 2009 at the Milwaukee County Mental Health

Complex. This treatment was less than two months before the

attempted homicides.

10 At various times over the years Burton

had been diagnosed with Attention Deficient/Hyperactivity

Disorder, Oppositional Defiant Disorder, "mood disorder,"

Bipolar Disorder, and Personality Disorder. After his arrest

for the attempted homicides, Burton's medical records at the

Milwaukee jail indicate that he had a diagnostic history of

schizophrenia and Attention Deficit/Hyperactivity Disorder.

¶19 Ultimately, Dr. Smail concluded that while Burton

suffered from "emotional and behavioral

disturbances, . . . there is not much objective evidence in his

record to substantiate a diagnosis that may reflect psychosis."

With regard to the attempted homicides, Dr. Smail concluded:

Dr. Smail noted in his report that as part of his interview

with Burton he explained the purpose of his mental health

assessment of Burton. In particular, Dr. Smail "described the

issue of exculpatory mental disease" and "described a bifurcated

trial process." After further discussion about the evaluation,

Dr. Smail noted that Burton "did appear to understand the nature

and purpose of the assessment."

10 On April 25, 2009, Burton was taken to the Mental Health

Complex by his family, but he insisted upon being discharged the

following day. He was told to take certain medication and to

meet with a therapist at Acacia Clinic. He met with the

therapist on May 11 and on June 4, 2009, five days before the

shootings.
No. 2011AP450-CR

9

I do not believe that there is any evidence to

reasonably sustain a diagnosis that would reflect a

psychosis of any sort for Mr. Burton when he had the

altercation with the police officers. . . .

It is also my opinion that the evidence

ultimately fails to indicate that Mr. Burton, at the

time of the offense, was substantially unable to

appreciate the wrongfulness of his conduct or conform

his conduct to the requirements of the law.

¶20 Burton's two counsel retained Dr. Dianne Lytton to

evaluate Burton as a defense expert and to determine whether the

evidence supported his NGI plea. Dr. Lytton disagreed with the

conclusions reached by Dr. Smail and concluded that, "at the

time of the alleged criminal events, Mr. Burton experienced

symptoms of psychotic disorder. . . . [I]n my opinion, he is

most appropriately diagnosed with schizoaffective disorder."

Dr. Lytton noted Burton's long history of mental illness and his

family's history of mental illness. Dr. Lytton also disagreed

with the opinions of Drs. Luchetta and Smail that Burton was

malingering, or intentionally faking his symptoms.

¶21 The State offered a plea agreement to Burton in which

he would plead guilty to the two counts of attempted firstdegree intentional homicide while armed with a dangerous weapon.

In exchange, the State would make a global sentence

recommendation of 50 years in confinement and no specific

recommendation on extended supervision. The State would be free

to argue aggravating and mitigating circumstances, Burton would

be free to argue mitigating circumstances at sentencing, and the

victims would be free to make their own sentencing

recommendations.
No. 2011AP450-CR

10

¶22 Burton accepted the State's plea offer. On January

14, 2010, he signed a plea questionnaire/waiver of rights form

acknowledging the charges to which he was pleading guilty, the

constitutional rights he was waiving, and his understanding of

the maximum penalties that the court could impose. Burton also

signed an addendum to the plea questionnaire/waiver of rights

form, which stated, "I understand that by pleading I am giving

up defenses such as alibi, intoxication, self-defense, [and]

insanity." (Emphasis added.) One week later, on January 21,

2010, the circuit court held a plea hearing.

¶23 At the plea hearing, the court conducted a thorough

plea colloquy with Burton. Burton was sworn in and Milwaukee

County Circuit Judge Patricia McMahon informed him that at any

time he could stop the colloquy and talk to his attorneys. The

judge confirmed that Burton understood the two charges to which

he was pleading guilty and the maximum penalty on each charge,

including the maximum period of initial confinement and the

maximum period of extended supervision. The judge also informed

Burton that the court was not bound by the plea agreement and

could impose up to the maximum penalty.

¶24 The court confirmed that Burton had time to meet with

his attorneys and discuss his case with them, that he was making

the decision to plead guilty "freely and voluntarily," and that

he had signed and understood the plea questionnaire/waiver of

rights form and the addendum to the form. The court noted the

constitutional rights Burton was waiving by agreeing to plead

guilty.
No. 2011AP450-CR

11

¶25 The court then conducted a personal colloquy with

Burton regarding his decision to withdraw his NGI plea:

THE COURT: You are also giving up the right to raise

certain defenses such as alibi or intoxication or

self-defense or insanity. Correct?

MR. BURTON: Yes.

THE COURT: You talked with your attorney about

entering, in fact I believe you did enter a plea of

not guilty by reason of mental disease or defect.

Correct?

MR. BURTON: Yes.

THE COURT: You are withdrawing that plea at this time.

Correct?

MR. BURTON: Yes.

¶26 The court also engaged Burton and his defense counsel

in an extensive discussion as to Burton's understanding of the

charges to which he was pleading guilty and the consequences of

those pleas:

THE COURT: And counsel, are you satisfied that your

client understands the nature of the charges, the

effects of his plea and is making his plea freely and

voluntarily?

MR. LaVOY: Yes. The Sheriff's Department provided both

myself and Mr. Kim quite a bit of access to Mr.

Burton. We have met with him a number of times about

defenses, the trial issues, N.G.I. issues, motions. I

believe that he's making this decision of his own free

will.

We have explained to Mr. Burton [that] we

retained experts and the experts are prepared to

testify, if necessary. But he's informed us he wishes

to accept responsibility by entering the pleas, so I

believe that he is doing this of his own free will.
No. 2011AP450-CR

12

THE COURT: Mr. Burton, did your attorney describe what

your conversation, general summary of your

conversation . . . with your attorney?

MR. BURTON: Yes.

THE COURT: So, you talked about this with your

attorneys for the time they represented you since the

very beginning of this case. Correct?

MR. BURTON: Yes.

THE COURT: And they came and talked with you and

talked about your various options in this case.

Correct?

MR. BURTON: Yes.

¶27 The prosecutor, Assistant District Attorney Mark

Williams, also spoke on the record to note that the defense had

an expert ready to testify that Burton was not guilty by reason

of mental disease or defect, but that Burton was waiving the

right to present that defense:

MR. WILLIAMS: Judge, there is a doctor

that . . . would render [the] opinion that Mr. Burton

was not guilty by reason of mental disease or defect.

I'm assuming that Mr. Burton read that report, knows

that report is available and that he has two competent

lawyers that would present that if the matter [went]

to trial.

There also is at least one doctor that finds Mr.

Burton . . . did understand what he was doing at the

time and would contradict that opinion. But Mr.

Burton is aware that there is an opinion from a doctor

that he . . . was not guilty by mental disease or

defects at the time and he is waiving that right to

present that defense.

THE COURT: Counsel, have you had that discussion with

your client?

MR. LaVOY: Yes. The doctor that the State's referring

to is Dr. Lytton. That is the doctor we retained. I
No. 2011AP450-CR

13

had reviewed that report word for word with Mr.

Burton. He is aware of her opinion and he is aware

that she would be prepared to testify, if necessary at

trial. But he indicated to me that he wishes to

again, accept responsibility and [forgo] that issue.

He's also aware of the other opinions that have

been presented by the other doctors referenced by the

State. So, it is my opinion that his position is that

he wishes to resolve the case with a plea today.

THE COURT: So, the not guilty by reason of mental

disease or defect plea would be withdrawn at this time

too?

MR. LaVOY: That is correct.

THE COURT: Mr. Burton, you heard what the State said

and your counsel said. Do you disagree with anything

that they have said so far?

MR. BURTON: No.

THE COURT: And they have had, your attorneys [have]

had that conversation with you. Correct?

MR. BURTON: Yes.

THE COURT: And you have gone through, there is a lot

of information here. So, they have spent a lot of

time with you, haven't they?

MR. BURTON: Yes.

THE COURT: And you specifically talked about your

right to raise that particular defense of mental

disease or defect. Correct?

MR. BURTON: Yes.

¶28 The circuit court used the criminal complaint, the

preliminary hearing, and security videotape of the attempted

homicides as the factual basis for Burton's guilty pleas. Given

the factual basis, and its finding that Burton was entering his

pleas "freely," "intelligent[ly]," and "voluntarily," the court
No. 2011AP450-CR

14

accepted Burton's guilty pleas and found him guilty of both

counts.

¶29 At sentencing, the State explained that it thought the

plea bargain was fair, that it would spare the officers and

their families the burdens of going through a trial, and that it

would protect the public by ensuring that Burton would spend

much of the rest of his life in confinement. The State

acknowledged Burton's history of mental illness, but maintained

that Burton knew that the shootings were wrong.

¶30 Defense counsel pointed to Burton's long history of

mental illness. Nevertheless, defense counsel reminded the

court that Burton chose to forgo the insanity defense and

decided to accept responsibility for the attempted homicides.

Counsel contended that by forgoing the defense and accepting

responsibility, Burton should be credited for sparing the

officers and their families the burdens of a trial and perhaps

receive a sentence that would allow him to get out of

confinement at some point in his life.

¶31 In imposing sentence, Judge McMahon considered the

extreme seriousness of Burton's offenses, the devastating impact

of the shootings on the officers and their families, and the

risks that Burton posed to the community. Judge McMahon also

took into account Burton's history of mental illness and

credited him for sparing the officers and their families a

trial. Ultimately, the court sentenced Burton to 40 years of

initial confinement and ten years of extended supervision on

each count, to be served consecutively.
No. 2011AP450-CR

15

¶32 On January 12, 2011, Burton's postconviction counsel,

Attorney Esther Cohen Lee (Attorney Lee), filed a motion to

withdraw Burton's guilty pleas and vacate his convictions.

11

¶33 Burton's postconviction motion asserted three claims,

only two of which are relevant in this review.

12 First, Burton

alleged that trial counsel was ineffective "since it was obvious

from . . . the record of this matter, . . . that counsel failed

to pursue" an NGI defense and instead counseled Burton to enter

pleas of guilty. Burton's motion also claimed that "there is

nothing in the record to indicate that defense counsel had ever

advised [Burton] of the possibility of entering . . . a

bifurcated plea." The motion also claimed that:

[I]f the defendant had been made to understand that

the jury could certainly have accepted Dr. Lytton's

expert opinions in this matter and, therefore, that

the jury could have found him not guilty by reason of

mental disease or defect, and if he had been advised

that he could have had the jury consider that

affirmative defense even if he had pled guilty to

having committed the crimes charged, there is a

reasonable probability that he would have not pled

guilty to the crimes. For that reason, defense

11 The circuit court did not accept Attorney Lee's initial

motion to withdraw Burton's guilty pleas and convictions dated

December 28, 2011, because it was in excess of 20 pages,

contrary to Rule 4.17(B) of the Local Rules of the First

Judicial District. The circuit court granted a one-time partial

exception to the rule, allowing Burton to file a 25-page motion.

12 Burton's postconviction motion also claimed that trial

counsel was ineffective for failing to advise him that the

circuit court was unlikely to follow the State's sentencing

recommendation. That claim was not before the court of appeals

and is not before this court.
No. 2011AP450-CR

16

counsel's deficient performance prejudiced the

defendant . . . .

¶34 Second, Burton contended that the circuit court failed

to advise him at the plea hearing that "he had the right to a

bifurcated jury trial . . . and that he could choose to plead

guilty to the crimes and still have a jury trial" on the issue

of mental responsibility. Burton claimed that because the

circuit court failed to inform him of this right to bifurcation,

his pleas were not "voluntarily, knowingly, and intelligently

made," resulting in manifest injustice.

¶35 Milwaukee County Circuit Judge Kevin E. Martens denied

Burton's postconviction motion without a hearing. Judge Martens

noted that there was a "very extensive record made during the

plea hearing about the defendant's desire to withdraw his

original [NGI] plea." Noting the relevant portions of the plea

hearing transcript, Judge Martens concluded that there was

"nothing which demonstrates that [Burton] was forced into

entering guilty pleas . . . or that his original [NGI]

plea . . . was abandoned without reason." Judge Martens added

that Judge McMahon "had no duty to advise [Burton] of the

possibility of a bifurcated trial on his original plea when he

was entering guilty pleas to both charges. . . . [Judge

McMahon] fulfilled her duties during the guilty plea colloquy."

¶36 The court of appeals affirmed, holding that the

circuit court properly denied Burton's postconviction motion

without an evidentiary hearing on either claim. State v.

Burton, No. 2011AP450-CR, unpublished slip op., ¶1 (Wis. Ct.
No. 2011AP450-CR

17

App. Feb. 14, 2012). The court of appeals rejected Burton's

claim of ineffective assistance of counsel as inadequately pled

because the motion failed to allege both deficient performance

and prejudice. Id., ¶¶12–14. As to the claim of a Bangert

violation, the court of appeals agreed with the circuit court

that Burton failed to allege a deficiency in the plea colloquy

or that his pleas were, in fact, not entered knowingly,

intelligently, and voluntarily. Id., ¶¶17–18.

¶37 Burton petitioned this court for review, which we

granted on September 27, 2012.

III. STANDARD OF REVIEW

¶38 In this case, Burton presents two issues for review.

The first issue is whether Burton's postconviction motion is

sufficient on its face to entitle him to an evidentiary hearing

on his claim of ineffective assistance of trial counsel and

whether the circuit court erred in denying Burton an evidentiary

hearing.

13 Whether a motion alleges sufficient facts that, if

true, would entitle a defendant to relief is a question of law

that this court reviews de novo. State v. Allen, 2004 WI 106,

¶9, 274 Wis. 2d 568, 682 N.W.2d 433 (citing State v. Bentley,

201 Wis. 2d 303, 309–10, 548 N.W.2d 50 (1996)). The circuit

court must hold an evidentiary hearing if the defendant's motion

raises such facts. Id. (citing Bentley, 201 Wis. 2d at 310;

13 This opinion uses the term "trial counsel" to refer to

Attorneys Julius Kim and Jonathan LaVoy, even though Burton's

case never went to trial. Attorneys Kim and LaVoy did not

represent Burton at his initial appearance.
No. 2011AP450-CR

18

Nelson v. State, 54 Wis. 2d 489, 497, 195 N.W.2d 629 (1972)).

"However, if the 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 circuit court has the

discretion to grant or deny a hearing." Id. (citations

omitted).

¶39 The second issue is whether Burton's postconviction

motion is sufficient on its face to entitle him to an

evidentiary hearing on his claim of a Bangert violation, and

whether the circuit court erred in denying Burton a hearing.

Whether a defendant has properly alleged "deficiencies in the

plea colloquy that establish a violation of Wis. Stat. § 971.08

or other mandatory duties at a plea hearing is a question of law

we review de novo." State v. Brown, 2006 WI 100, ¶21, 293

Wis. 2d 594, 716 N.W.2d 906 (citing State v. Brandt, 226

Wis. 2d 610, 618, 594 N.W.2d 759 (1999)). Whether a defendant

has sufficiently alleged that "he did not know or understand

information that should have been provided at the plea hearing"

also is a question of law that we review de novo. Id. (citing

Bentley, 201 Wis. 2d at 310).

IV. ANALYSIS

¶40 In this case, Burton's motion alleges a claim of

ineffective assistance of counsel, which is subject to the

Nelson/Bentley standard for an evidentiary hearing. In

addition, Burton alleges a Bangert violation because of a

purported deficiency in the plea colloquy and implies that he
No. 2011AP450-CR

19

did not enter his pleas knowingly, intelligently, and

voluntarily. "A defendant may invoke both Bangert and

Nelson/Bentley in a single postconviction motion to withdraw a

plea of guilty or no contest." State v. Howell, 2007 WI 75,

¶73, 301 Wis. 2d 350, 734 N.W.2d 48 (citing Brown, 293

Wis. 2d 594, ¶42).

¶41 Although a defendant may invoke both types of claims

in a single postconviction motion, the pleading standards for

the two claims are different. Id. We will examine the pleading

standards for each type of claim and apply them to Burton's

motion. We begin our analysis, however, with a brief

explanation of the NGI plea.

A. Entry of and Trial Upon an NGI Plea

¶42 Wisconsin Stat. § 971.15 provides criminal defendants

with an affirmative defense of not guilty by reason of mental

disease or defect. This is known in common parlance as the

"insanity" defense. It requires that a defendant establish to a

reasonable certainty, by the greater weight of credible

evidence, that the defendant, as a result of mental disease or

defect, "lacked substantial capacity either to appreciate the

wrongfulness of his . . . conduct or conform his . . . conduct

to the requirements of law." Wis. Stat. § 971.15(1), (3).

¶43 A defendant may enter a plea of not guilty by reason

of mental disease or defect in conjunction with a plea of not

guilty. Wis. Stat. § 971.06(1)(d). If the NGI plea is not

joined with a plea of not guilty, the plea admits that but for

lack of mental capacity the defendant committed all the
No. 2011AP450-CR

20

essential elements of the offenses charged. Id. Then——when

there is a substantive basis for finding the crimes charged——the

court will find the defendant guilty of the elements of the

crimes, and the NGI plea will be left for trial. See State v.

Langenbach, 2001 WI App 222, ¶19, 247 Wis. 2d 933, 634

N.W.2d 916 ("[A] defendant can only be found not guilty by

reason of mental disease or defect if he or she first admits to

the criminal conduct or is found guilty.").

¶44 Conversely, if the defendant pleads not guilty in

conjunction with an NGI plea, Wis. Stat. § 971.165(1) provides

for the bifurcation of the guilt and mental responsibility

phases of trial:

(1) If a defendant couples a plea of not guilty

with a plea of not guilty by reason of mental disease

or defect:

(a) There shall be a separation of the

issues with a sequential order of proof in a

continuous trial. The plea of not guilty shall

be determined first and the plea of not guilty by

reason of mental disease or defect shall be

determined second.

(b) If the plea of not guilty is tried to a

jury, the jury shall be informed of the 2 pleas

and that a verdict will be taken upon the plea of

not guilty before the introduction of evidence on

the plea of not guilty by reason of mental

disease or defect. No verdict on the first plea

may be valid or received unless agreed to by all

jurors.

(c) If both pleas are tried to a jury, that

jury shall be the same . . . .

Wis. Stat. § 971.165(1) (emphasis added).
No. 2011AP450-CR

21

¶45 The bifurcated trial for determining guilt and mental

responsibility was first enunciated by this court in State ex

rel. La Follette v. Raskin, 34 Wis. 2d 607, 150 N.W.2d 318

(1967). In Raskin, the court addressed whether the insanity

defense statute at that time

14 allowed for bifurcation. Raskin,

34 Wis. 2d at 614. The Raskin court held that a defendant was

entitled to a sequential order of proof at trial——guilt first

and then the issue of criminal responsibility——"to avoid

confusion and prejudice to the jury from inculpatory statements

which were not given or intended to be used on the issue of

guilt."

15 Id. at 614, 623; see also State v. Murdock, 2000 WI

App 170, ¶23, 238 Wis. 2d 301, 617 N.W.2d 175.

14 Wisconsin Stat. § 957.11(1) (1967–68), the then-insanity

defense statute, read as follows:

(1) No plea that the defendant indicted or

informed against was insane or feeble-minded at the

time of the commission of the alleged crime shall be

received unless it is interposed at the time of

arraignment and entry of a plea of not guilty unless

the court for cause shown otherwise orders. When such

plea is interposed the special issue thereby made

shall be tried with the plea of not guilty; and if the

jury finds that the defendant was insane or feebleminded or that there is reasonable doubt of his sanity

or mental responsibility at the time of the commission

of the alleged crime, they shall find the defendant

not guilty because insane or feeble-minded.

15 This court reiterated the policy of avoiding confusion

and prejudice in State v. Leach, 124 Wis. 2d 648, 370 N.W.2d 240

(1985):

The issue of not guilty by reason of mental

disease or defect is tried separately from the

question of whether the defendant committed the acts

which constitute a criminal offense. The principal
No. 2011AP450-CR

22

¶46 Wisconsin Stat. § 971.175 (1969)

16 codified Raskin's

bifurcated trial process. See § 63, ch. 255, Laws of 1969. In

1987 the legislature replaced section 971.175 with Wis. Stat.

§ 971.165, which maintained "the basic bifurcated trial

procedure with its sequential order of proof as first

established in Raskin." Murdock, 238 Wis. 2d 301, ¶23. See

also 1987 Wis. Act 86.

B. Burton's Claim of Ineffective Assistance of Counsel

¶47 The Sixth and Fourteenth Amendments to the United

States Constitution guarantee a criminal defendant the right to

the effective assistance of counsel. State v. Balliette, 2011

WI 79, ¶21, 336 Wis. 2d 358, 805 N.W.2d 334 (citing Strickland

v. Washington, 466 U.S. 668, 686 (1984)). A defendant's claim

purpose of bifurcation is to withhold from the jury,

while it debates the question of guilt or innocence,

evidence which is not legally relevant to that

question. This permits the defendant to fully

litigate the issue of mental responsibility without

compromising his ability to contest the issue of

guilt. Bifurcation protects both the defendant and

the state from having to confront evidence which if

introduced in the guilt phase, could confuse the jury

or appeal to its prejudice or sympathy.

Id. at 662 (citations omitted).

16 Wisconsin Stat. § 971.175 (1969) read in part:

When a defendant couples a plea of not guilty

with a plea of not guilty by reason of mental disease

or defect, there shall be a separation of the issues

with a sequential order of proof before the same jury

in a continuous trial. The guilt issue shall be heard

first and then the issue of the defendant's mental

responsibility.
No. 2011AP450-CR

23

of ineffective assistance has two components. Strickland, 466

U.S. at 687. First, a "defendant must show that counsel's

performance was deficient." Id. Second, a defendant must show

that counsel's deficient performance prejudiced the defense.

Id.

¶48 A defendant does not show the element of deficient

performance "simply by demonstrating that his counsel was

imperfect or less than ideal." Balliette, 336 Wis. 2d 358, ¶22.

Rather, "the proper standard for attorney performance is that of

reasonably effective assistance" by a "reasonably competent

attorney." Strickland, 466 U.S. at 687. "The benchmark for

judging any claim of ineffectiveness must be whether counsel's

conduct so undermined the proper functioning of the adversarial

process that the trial cannot be relied on as having produced a

just result." Id. at 686. When a court considers this issue,

"counsel is strongly presumed to have rendered adequate

assistance" to the defendant, id. at 690; thus, "the law affords

counsel the benefit of the doubt." Balliette, 336 Wis. 2d 358,

¶27.

¶49 As a general rule, a defendant who shows deficient

performance of counsel cannot presume prejudice. Strickland,

466 U.S. at 692–93.

17 Instead, a defendant must affirmatively

17 There are some exceptions to the rule. "Actual or

constructive denial of the assistance of counsel altogether is

legally presumed to result in prejudice." Strickland v.

Washington, 466 U.S. 668, 692 (1984). In addition, actual

conflict of interest will result in a "similar, though more

limited, presumption of prejudice." Id. See also Cuyler v.

Sullivan, 446 U.S. 335, 348, 350 (1980).
No. 2011AP450-CR

24

prove prejudice by "show[ing] that particular errors of counsel

were unreasonable" and that those errors "had an adverse effect

on the defense." Id. at 693. Therefore, the proper test for

prejudice in the context of ineffective assistance of counsel is

whether "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. at 694; Balliette, 336 Wis. 2d 358, ¶24.

¶50 To establish prejudice in the context of a

postconviction motion to withdraw a guilty plea based upon

ineffective assistance of counsel, the defendant must allege

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 (quoting Hill v. Lockhart, 474 U.S. 52, 59

(1985)).

¶51 Ineffective assistance of trial counsel may be raised

in a postconviction motion under Wis. Stat. § 974.02. The

evidentiary hearing evaluating counsel's effectiveness is widely

referred to as a Machner hearing. State v. Machner, 92

Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

18

18 In State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct.

App. 1979), the court of appeals explored the hearing that

results "where a counsel's conduct at trial is questioned." Id.

at 804. The term "Machner hearing" appears to have been

extended to include all hearings challenging the effectiveness

of trial counsel or preconviction counsel. A Nelson/Bentley

hearing is one subset of a Machner hearing. A Bangert hearing,

which involves an alleged deficiency on the part of a judge, is

not a subset of a Machner hearing.
No. 2011AP450-CR

25

¶52 Generally, a motion must "[s]tate with particularity

the grounds for the motion and the order or relief sought."

Wis. Stat. § 971.30(2)(c). This court has developed

particularized standards for Nelson/Bentley motions to secure an

evidentiary hearing on a claim of ineffective assistance of

trial counsel.

¶53 In Nelson, the court rejected the defendant's argument

that an evidentiary hearing must be held whenever a defendant

moves to withdraw a plea of guilty, unless the defendant's

motion is patently frivolous. Nelson, 54 Wis. 2d at 495.

Instead, the Nelson court held:

[I]f a motion to withdraw a guilty plea after judgment

and sentence alleges facts which, if true, would

entitle the defendant to relief, the trial court must

hold an evidentiary hearing. However, [1] if the

defendant fails to allege sufficient facts in his

motion to raise a question of fact, or [2] presents

only conclusionary allegations, or [3] if the record

conclusively demonstrates that the defendant is not

entitled to relief, the trial court may in the

exercise of its legal discretion deny the motion

without a hearing. It is incumbent upon the trial

court to form its independent judgment after a review

of the record and pleadings and to support its

decision by written opinion.

Id. at 497–98 (footnote omitted).

¶54 In Bentley, a defendant sought to withdraw his guilty

pleas on the basis of ineffective assistance of counsel.

Bentley, 201 Wis. 2d at 307. Bentley noted that a defendant may

withdraw a guilty plea after sentencing "only upon a showing of

'manifest injustice' by clear and convincing evidence." Id. at

311 (citing State v. Rock, 92 Wis. 2d 554, 558–59, 285
No. 2011AP450-CR

26

N.W.2d 739 (1979)). The "manifest injustice" requirement is met

if a defendant is denied the effective assistance of counsel.

Id. (citations omitted). The Bentley court relied on Nelson for

the criteria in determining whether a hearing is required on a

motion to withdraw a guilty plea, but restated the Nelson

holding as a two-part test:

If the motion on its face alleges facts which would

entitle the defendant to relief, the circuit court has

no discretion and must hold an evidentiary hearing.

Whether a motion alleges facts which, if true, would

entitle a defendant to relief is a question of law

that we review de novo.

However, if the motion fails to allege sufficient

facts, the circuit court has the discretion to deny a

postconviction motion without a hearing based on any

one of the three factors enumerated in Nelson. When

reviewing a circuit court's discretionary act, this

court uses the deferential erroneous exercise of

discretion standard.

Id. at 310–11 (citations omitted.)

¶55 The Bentley court continued:

This court has long held that the facts

supporting plea withdrawal must be alleged in the

petition and the defendant cannot rely on conclusory

allegations, hoping to supplement them at a

hearing . . . .

The nature and specificity of the required supporting

facts will necessarily differ from case to case.

However, a defendant should provide facts that allow

the reviewing court to meaningfully assess his or her

claim.

Id. at 313–14 (citations omitted).

¶56 Howell clarified the Bentley restatement of the Nelson

test. "The correct interpretation of Nelson/Bentley is that an
No. 2011AP450-CR

27

evidentiary hearing is not mandatory if the record as a whole

conclusively demonstrates that defendant is not entitled to

relief, even if the motion alleges sufficient nonconclusory

facts." Howell, 301 Wis. 2d 350, ¶77 n.51.

¶57 State v. Hampton, 2004 WI 107, 274 Wis. 2d 379, 683

N.W.2d 14, and Allen fleshed out the requirement for sufficient

facts that would allow a court to meaningfully assess a

defendant's claim in a postconviction motion.

¶58 In Hampton, we discussed the difference between

Bangert claims of a defective plea colloquy and Nelson/Bentley

claims of ineffective assistance of counsel. Hampton, 274

Wis. 2d 379, ¶¶50–65. While Bangert-type claims require a

defendant to point to a specific deficiency in the plea colloquy

and assert an unknowing, unintelligent, and involuntary plea

because of that deficiency, Nelson/Bentley-type claims are

different in that they assert a legal conclusion. Id., ¶¶57–58.

"[Nelson/Bentley-type] legal conclusions cry out for supporting

facts, and these supporting facts must be alleged to satisfy the

defendant's burden for an evidentiary hearing." Id., ¶58.

Hampton continued:

[T]he Bentley court explained that normally a

defendant is entitled to withdraw a guilty plea after

sentencing only upon a showing of "manifest injustice

by clear and convincing evidence." When, for example,

the basis for this injustice is an allegation that

defendant involuntarily entered a plea because of the

ineffective assistance of counsel, his claim raises

questions about both deficient performance and

prejudice. To establish deficient performance, a

defendant must necessarily provide the factual basis

for the court to make a legal determination. To show
No. 2011AP450-CR

28

prejudice, a defendant must do more than merely allege

that he would have pleaded differently but for the

alleged deficient performance. He must support that

allegation with "objective factual assertions."

Id., ¶60 (citations omitted).

¶59 Hampton added that "[i]n Bentley–type cases, the

defendant has the burden of making a prima facie case for an

evidentiary hearing . . . . The defendant must prove the

linkage between his plea and the purported defect." Id., ¶63.

Ultimately, "[t]he defendant's proof must add up to manifest

injustice." Id.

¶60 The Allen court noted that "the sufficiency standard

for postconviction motions requires more from a defendant" than

for pretrial motions where a defendant has the "opportunity to

develop the factual record." Allen, 274 Wis. 2d 568, ¶11

(citations omitted). Thus, the Allen court offered a practical

blueprint for specificity in postconviction motions,

recommending that:

postconviction motions sufficient to meet the Bentley

standard allege the five 'w's' and one 'h'; that is,

who, what, where, when, why, and how. A motion that

alleges, within the four corners of the document

itself, . . . material factual objectivity . . . will

necessarily include sufficient material facts for

reviewing courts to meaningfully assess a defendant's

claim.

Id., ¶23 (footnote omitted).

C. Nelson/Bentley Standard Applied to Burton's Motion

¶61 Against this background, we turn to the allegations of

ineffective assistance of counsel in Burton's postconviction

motion.
No. 2011AP450-CR

29

¶62 Burton's motion alleged that his trial counsel was

ineffective under both prongs of the Strickland test. Burton

alleged that trial counsel's performance was deficient "since it

was obvious from . . . the record of this matter, . . . that

counsel failed to pursue" an NGI defense and instead counseled

Burton to enter pleas of guilty. Burton's motion also claimed

that "there is nothing in the record to indicate that defense

counsel had ever advised [Burton] of the possibility of

entering . . . a bifurcated plea." Burton's motion alleged

prejudice to the defendant in that if he had known of the

possibility of a bifurcated trial on mental responsibility,

"there is a reasonable probability that he would not have pled

guilty to the crimes."

¶63 We conclude that Burton's motion was insufficient

because it did not adequately plead deficient performance by

Burton's trial counsel. Burton's motion pointed to the record

and suggested that because the record did not show that counsel

informed Burton of the possibility of a bifurcated trial,

Burton's counsel must not have informed Burton of the

possibility of a bifurcated trial. This is a shaky inference at

best, inasmuch as virtually all meetings between attorneys and

clients are not "on the record." Burton's motion did not allege

that his counsel never informed him that he had the option to

plead guilty to the crimes and have a jury determine his mental

responsibility. We suspect that Burton's attorney crafted

Burton's motion the way she did to push his arguments as far as

the facts allowed.
No. 2011AP450-CR

30

¶64 But it is not enough for the postconviction motion to

allege that the record does not show that Burton was told about

his options. To obtain an evidentiary hearing based on

ineffective assistance of counsel, Burton was required to assert

that his counsel in fact failed to tell him this information.

He was also required to assert that this failure to inform him

of his prerogatives was so serious an error that it fell below

the standard of reasonable performance by reasonable counsel,

such that counsel was not functioning as counsel, as guaranteed

by the Sixth Amendment. Strickland, 466 U.S. at 687. Burton's

motion failed to make this elementary allegation of deficient

performance. Burton's motion is conclusory and lacks sufficient

material facts to establish a failure to inform. The motion

presents a hypothesis, not an offer of proof.

¶65 The record in this case does not reveal all the

information that trial counsel provided to Burton in regard to

his plea option, nor should it. As the State observed, a

criminal record does not contain all the information that trial

counsel provides to a defendant. At a plea hearing, a record is

made to establish that a defendant enters his plea knowingly,

intelligently, and voluntarily. Trial counsel must provide

enough information to a defendant that any plea is made with a

constitutionally-required degree of understanding and

willingness. However, the record is not likely to contain a

detailed recitation of all information that trial counsel

provided to the defendant throughout counsel's representation.
No. 2011AP450-CR

31

¶66 Here, the plea hearing transcript reveals that

Burton's counsel communicated with him about "N.G.I. issues,"

retained experts who were ready to testify should Burton go to

trial on an NGI plea, talked to Burton about "[his] various

options in this case," and "specifically talked about [his]

right to raise that particular defense of mental disease or

defect." These statements in the record permit inferences about

the information provided to Burton that are very different from

the inferences that Burton's motion urges the court to draw.

¶67 A complete record was made of Burton's decision to

forgo an NGI defense and enter a plea of guilty. Burton cannot

now allege a purported gap in the record as justification to

turn a requested evidentiary hearing into a fishing expedition.

Either Burton's two counsel told him about the possibility of a

bifurcated trial on mental responsibility or they did not. If

trial counsel did not tell him, Burton should have alleged this

failure on the basis of his personal knowledge. In the absence

of such an allegation, there is an insufficient factual basis

for investigating deficient performance of counsel in an

evidentiary hearing.

19

¶68 Even if we were to conclude that Burton's allegation

of deficient performance was sufficient, Burton was still

required to allege sufficient facts to show that the deficient

19 Moreover, Burton's motion did not allege that he did not

know that he could have a bifurcated trial on mental

responsibility, another claim necessary to sufficiently allege

deficient performance of counsel.
No. 2011AP450-CR

32

performance prejudiced his defense. Burton's motion fails in

this regard, too, because it does not assert how the option of

bifurcation on mental responsibility would have caused him to

decline the plea bargain and proceed to trial.

¶69 Burton's motion alleged that had he known about the

option of bifurcation on mental responsibility, "there is a

reasonable probability that he would not have pled guilty to the

crimes." This is speculation, not assertion. The State's

proffered sentencing recommendation was not especially generous

but the charges were so serious that the State could have argued

for much more time. Had Burton not accepted the plea agreement,

he would likely have pled guilty to the charged crimes——with no

sentence recommendation——and taken his chances with a jury on

the issue of mental responsibility.

¶70 Burton's motion asserted that he could have presented

the report of his retained expert, Dr. Lytton, and her

assessment of his mental health at the mental responsibility

phase of a bifurcated trial. Essentially, Burton contended that

had he known of the option to a bifurcated trial on mental

responsibility, he could have presented this mental illness

evidence to the jury and the lack of opportunity to do so

constituted prejudice to his defense. On the other hand, the

State would have presented contrary evidence from Dr. Smail and

Dr. Luchetta, the competency evaluator. The jury would have had

to find Dr. Lytton's opinion more persuasive than the other

experts. Burton would have had to convince a jury "to a

reasonable certainty by the greater weight of the credible
No. 2011AP450-CR

33

evidence" that, at the time he admittedly attempted to kill two

police officers, his conduct was the result of mental disease or

defect. Wis. Stat. § 971.15(3).

¶71 We conclude that Burton failed to allege sufficient

material facts to support a claim of ineffective assistance of

counsel, and the circuit court did not err in denying Burton's

motion without an evidentiary hearing.

D. Burton's Claim of a Bangert Violation

¶72 Burton's motion also alleged a Bangert violation.

Burton alleges that he had a right to plead guilty to the crimes

and to have a jury determine whether he suffered from mental

disease or defect. Burton contends that the circuit court

failed to advise him of this right during the plea colloquy, and

consequently his pleas were not knowing, intelligent, and

voluntary. Burton contends, in essence, that the plea colloquy

outlined in Brown

20 must be substantially modified whenever a

defendant contemplates withdrawal of an NGI plea.

20 To ensure a knowing, intelligent, and voluntary plea, a

court must, at a plea hearing and on the record, address the

defendant personally and:

(1) Determine the extent of the defendant's education and

general comprehension so as to assess the defendant's capacity

to understand the issues at the hearing;

(2) Ascertain whether any promises, agreements, or threats

were made in connection with the defendant's anticipated plea,

his appearance at the hearing, or any decision to forgo an

attorney;

(3) Alert the defendant to the possibility that an

attorney may discover defenses or mitigating circumstances that

would not be apparent to a layman such as the defendant;
No. 2011AP450-CR

34

¶73 The duties of the court established in Wis. Stat.

§ 971.08 and in Bangert and its progeny are designed to ensure

that a defendant's guilty or no contest plea is knowingly,

intelligently, and voluntarily entered. Brown, 293 Wis. 2d 594,

¶23; Hampton, 274 Wis. 2d 379, ¶21. "When a defendant pleads

guilty or no contest, he or she waives several constitutional

rights, including the privilege against self-incrimination, the

(4) Ensure the defendant understands that if he is

indigent and cannot afford an attorney, an attorney will be

provided at no expense to him;

(5) Establish the defendant's understanding of the nature

of the crime with which he is charged and the range of

punishments to which he is subjecting himself by entering a

plea;

(6) Ascertain personally whether a factual basis exists to

support the plea;

(7) Inform the defendant of the constitutional rights he

waives by entering a plea and verify that the defendant

understands he is giving up these rights;

(8) Establish personally that the defendant understands

that the court is not bound by the terms of any plea agreement,

including recommendations from the district attorney, in every

case where there has been a plea agreement;

(9) Notify the defendant of the direct consequences of his

plea; and

(10) Advise the defendant that "If you are not a citizen of

the United States of America, you are advised that a plea of

guilty or no contest for the offense [or offenses] with which

you are charged may result in deportation, the exclusion from

admission to this country or the denial of naturalization, under

federal law," as provided in Wis. Stat. § 971.08(1)(c).

State v. Brown, 2006 WI 100, ¶35, 293 Wis. 2d 594, 716

N.W.2d 906 (footnotes omitted).
No. 2011AP450-CR

35

right to a trial by jury, and the right to confront one's

accusers." Hampton, 274 Wis. 2d 379, ¶22 (citing Boykin v.

Alabama, 395 U.S. 238, 243 (1969)). Waiving constitutional

rights must be knowing, intelligent, and voluntary acts "done

with sufficient awareness of the relevant circumstances and

likely consequences." Brady v. United States, 397 U.S. 742, 748

(1970) (footnote omitted). Thus, before a court accepts a plea

of guilty or no contest, it must "[a]ddress the defendant

personally and determine that the plea is made voluntarily with

understanding of the nature of the charge and the potential

punishment if convicted." Wis. Stat. § 971.08(1)(a).

¶74 If a circuit court fails to fulfill one of these

duties at the plea hearing, and the defendant "did not

understand an aspect of the plea because of the omission," the

defendant may move to withdraw his plea, alleging a Bangert

violation. Brown, 293 Wis. 2d 594, ¶36.

¶75 The procedure for filing a Bangert motion has been

explained as follows:

The defendant must file a postconviction motion under

Wis. Stat. § 809.30 or other appropriate statute. The

motion must (1) make a prima facie showing of a

violation of Wis. Stat. § 971.08(1) or other courtmandated duties by pointing to passages or gaps in the

plea hearing transcript; and (2) allege that the

defendant did not know or understand the information

that should have been provided at the plea hearing.

Id., ¶39 (citing Bangert, 131 Wis. 2d at 274) (emphasis added).

¶76 In Brown, the defendant's motion stated that the

record failed to demonstrate that he actually understood the
No. 2011AP450-CR

36

elements of the crimes to which he pled guilty. Brown's motion

did not make a direct allegation. Id., ¶61. Consequently, this

court was concerned with the lack of a direct allegation that

the defendant did not know or understand some aspect of his

plea. Id., ¶62. We explained:

[I]f the defendant is unwilling or unable to assert a

lack of understanding about some aspect of the plea

process, there is no point in holding a

hearing. . . . In the absence of a claim by the

defendant that he lacked understanding with regard to

the plea, any shortcoming in the plea colloquy is

harmless.

Id., ¶63.

¶77 The Brown court cautioned that in the ordinary case,

defense counsel should plead with particularity a defendant's

lack of understanding. Id., ¶67.

¶78 Only if "the motion establishes a prima facie

violation of Wis. Stat. § 971.08 or other court-mandated duties

and makes the requisite allegations" must the court hold an

evidentiary Bangert hearing. Id., ¶40. Thus, the initial

burden rests with the defendant to show a defective plea

colloquy and allege that he did not know or understand

information that should have been provided during the plea

colloquy. Hampton, 274 Wis. 2d 379, ¶46.

¶79 In this case, Burton's motion was insufficient to

require an evidentiary hearing. Burton's motion did not allege

that at the time his pleas were entered, he did not know or

understand that he had the option of a bifurcated trial on the

issue of mental responsibility after pleading guilty to the
No. 2011AP450-CR

37

crimes. Rather, Burton asserted in his motion that there was

nothing in the record that indicated he was ever made aware of

his "right" to a bifurcated trial on mental responsibility;

thus, his plea was not knowing, intelligent, and voluntary.

Burton failed to plead with particularity that he entered his

plea unknowingly, unintelligently, and involuntarily because he

did not understand his procedural rights.

¶80 More important, Burton's motion failed to identify a

real deficiency in the plea colloquy. Neither Wis. Stat.

§ 971.08, nor the procedures mandated by Bangert and its

progeny, require a court to inform a defendant during a plea

colloquy that he may plead guilty to a crime and still have a

jury trial on the issue of mental responsibility. Because the

trial court was not required to inform Burton of this option,

there was no deficiency in the plea colloquy.

¶81 The issue of whether a circuit court must engage the

defendant in a personal colloquy on the option of a bifurcated

trial on mental responsibility was carefully analyzed in State

v. Francis, 2005 WI App 161, 285 Wis. 2d 451, 701 N.W.2d 632.

In Francis, a defendant initially pled not guilty to several

criminal charges and concurrently entered an NGI plea. Id., ¶6.

After a mental health examination concluded that the defendant's

psychopathology would not support an NGI plea, the State offered

the defendant a plea bargain that she accepted. Id., ¶¶8–11.

Pursuant to the plea agreement, the defendant withdrew her not

guilty and NGI pleas and then pled guilty and no contest to

several charges. Id., ¶11. In her postconviction motion, the
No. 2011AP450-CR

38

defendant alleged, inter alia, that "the circuit court erred

when it accepted her pleas of guilty and no contest without

ascertaining via a personal colloquy that [the defendant]

intended to abandon her earlier NGI plea." Id., ¶12. The

circuit court denied the motion in all respects. Id., ¶13.

¶82 On review, the court of appeals concluded that circuit

courts "engage in personal colloquies in order to protect

defendants against violations of their fundamental

constitutional rights." Id., ¶1. Because neither the federal

constitution nor the Wisconsin Constitution confers a right to

an insanity defense, a court has no obligation to personally

address a defendant in regard to the withdrawal of an NGI plea.

21

Id.

21 The United States Supreme Court has never held that a

defendant has a constitutional right to present an affirmative

insanity defense. See, e.g., Medina v. California, 505 U.S.

437, 449 (1992) (citing Powell v. Texas, 392 U.S. 514, 536-37

(1968) ("[W]e have not said that the Constitution requires the

States to recognize the insanity defense."); see also 22 C.J.S.

Criminal Law § 501 (2013) ("There is no independent

constitutional right to plead insanity as a defense to criminal

charges.") (footnote omitted).

Several state courts also have concluded there is no

federal constitutional right to an insanity defense. See, e.g.,

State v. Bethel, 66 P.3d 840, 851 (Kan. 2003), cert. denied 540

U.S. 1006 (2003); State v. Herrera, 895 P.2d 359, 366 (Utah

1995); State v. Searcy, 798 P.2d 914, 919 (Idaho 1990) (noting

that neither the federal constitution nor the state constitution

contains any language setting forth any right to an insanity

plea); State v. Korell, 690 P.2d 992, 999 (Mont. 1984) ("The

United States Supreme Court has never held that there is a

constitutional right to plead an insanity defense."). See also

Parkin v. State, 238 So. 2d 817, 822 (Fla. 1970). Idaho,

Kansas, Montana, and Utah have virtually abolished the insanity

defense. State v. Delling, 267 P.3d 709, 711 n.1 (Idaho 2011).
No. 2011AP450-CR

39

¶83 The Francis court did, however, offer this suggestion:

While we hold that a personal colloquy is not

required to withdraw an NGI plea, we believe it is

nonetheless advisable for trial courts to engage in

personal colloquy for at least two reasons: First, it

helps satisfy the court that the defendant is aware

and alert as to what is going on. Second, the record

is protected from later ineffective assistance of

counsel claims where a convicted defendant might

assert that counsel never discussed the NGI

withdrawal.

Id., ¶27 n.5.

¶84 We agree. We believe it is the better practice for

courts to engage the defendant in a personal colloquy on his or

her withdrawal of an NGI plea. It is also advisable for both

defense counsel and the State to help the court make a record of

the defendant's NGI plea withdrawal and his knowing,

intelligent, and voluntary plea of guilty or no contest.

22

¶85 In this case, the court, defense counsel, and the

prosecutor were very diligent and professional at the plea

hearing. All of them worked together to ensure a complete

22 One criminal practice manual suggests:

The withdrawal of an NGI plea should be clearly

noted on the record. The court should question the

defendant to ensure that the defendant agrees with the

decision to withdraw the insanity defense and that the

decision was based upon the advice of counsel. A

careful record of the plea's withdrawal will eliminate

or minimize later time-consuming hearings on

ineffective assistance of counsel or the assertion

that the plea was withdrawn without the defendant's

permission.

Christine M. Wiseman & Michael Tobin, 9 Wis. Practice: Criminal

Practice and Procedure § 17:33, at 534–35 (2d ed. 2008).
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record of Burton's knowing, intelligent, and voluntary entry of

a guilty plea and withdrawal of an NGI plea. The court engaged

in a personal colloquy with Burton on whether he was making his

plea voluntarily, whether he understood that he was waiving

certain fundamental rights, and whether he was freely giving up

his right to pursue an NGI defense. Defense counsel went on

record to establish that an expert had been retained who would

support an NGI plea, but that Burton was accepting

responsibility and pleading guilty. The prosecutor also wanted

the record to reflect that, despite having retained an expert on

mental health and two competent defense attorneys, Burton was

choosing to forgo an NGI defense and accept responsibility, a

fact that Burton confirmed on the record.

¶86 Although the plea colloquy was sound, we take this

opportunity to emphasize the important issue of mental illness

in our state correctional system. As of June 2008, 31 percent

of all inmates incarcerated in adult correctional facilities in

Wisconsin were identified as mentally ill. Inmate Mental Health

Care, Report 09-4, at 25, Legislative Audit Bureau, Madison,

Wis. During the period from June 2006 to June 2008, the number

of mentally ill inmates increased from 6,084 to 6,957, or 14.3

percent. Id. at 24. While some mentally ill inmates are housed

in specialized facilities, many are housed with other inmates.

Id. at 33. Trained staff who provide therapy to mentally ill

inmates and the resources for helping them are limited; hence,

troubled individuals may not always get the mental health

treatment they need. See id. at 37–38. While this sobering
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information does not change our analysis or conclusion, it

underscores the better practice of courts engaging in personal

colloquies with defendants about the withdrawal of NGI pleas.

23

¶87 Because Burton did not specifically plead to his lack

of knowledge or understanding at the plea colloquy, and because

there was no deficiency in the plea colloquy, we conclude that

the circuit court properly rejected Burton's Bangert motion

without an evidentiary hearing.

V. CONCLUSION

¶88 We conclude, first, that Burton's Nelson/Bentley

motion was insufficient. The motion asserted that Burton's two

trial counsel were ineffective in not pursuing an NGI or

"insanity" defense. The motion claimed that Burton's explicit

withdrawal of that defense as part of a plea agreement must have

been based upon a failure by trial counsel to inform Burton that

he had the option of pleading guilty to the crimes but also not

guilty by reason of mental disease or defect. Significantly,

Burton's motion never alleged that his trial counsel failed to

inform Burton of this option. Instead, it merely pointed to the

23 See generally Report of the Chief Justice's Task Force on

Criminal Justice and Mental Health (Sept. 2010). The Task

Force's mission was "to develop models of research-based, costeffective intervention processes that can be implemented to

improve responses of the criminal justice system to persons with

mental illness." Id. at 1. The Task Force's report highlights

current initiatives across the state that both "improve public

safety and the plight of persons with mental illnesses who come

into contact with the criminal justice system." Id. at 5. The

report also inventories gaps in the criminal justice and mental

health systems, and suggests programs and procedures to

institute statewide. Id.
No. 2011AP450-CR

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absence of evidence in the record that indicated that counsel

had explained this option to Burton. The absence of record

evidence in this situation is not enough. A defendant must

affirmatively plead facts that, if true, would constitute

deficient performance of counsel. Moreover, even if deficient

performance had been properly pled, Burton's motion did not

affirmatively assert that if trial counsel had informed him of

the option of a trial focused solely upon mental responsibility,

he would have chosen that option and why he would have chosen

it.

¶89 The sufficiency of a Nelson/Bentley motion is critical

because the defendant has the burden of proof in a

Nelson/Bentley hearing. A Nelson/Bentley hearing is an

evidentiary hearing in which a defendant is permitted to prove a

claim that his attorney was constitutionally ineffective; it is

not a fishing expedition to try to discover error.

¶90 We conclude, second, that Burton's claim of a Bangert

violation also was insufficient. Burton failed to state that,

due to a defect in the plea colloquy, he did not enter his pleas

knowingly, intelligently, and voluntarily. Because Burton did

not allege his lack of personal understanding about some aspect

of the plea process, no evidentiary hearing was necessary. In

any event, we do not find any defect in the plea colloquy. The

circuit court properly inquired as to whether Burton was

entering his guilty pleas knowingly, intelligently, and

voluntarily. The circuit court's inquiry not only followed

standard procedure, but also asked whether Burton was knowingly,
No. 2011AP450-CR

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intelligently, and voluntarily withdrawing his NGI plea and

giving up the right to present an insanity defense.

¶91 We reject Burton's claim of a Bangert violation

because defendants do not have a fundamental right to an

insanity plea, and it is not essential to conduct an extensive

colloquy about NGI procedure before a defendant withdraws his

plea of not guilty by reason of mental disease or defect.

Looking forward, we do think it is better practice for circuit

courts to conduct a personal colloquy on the bifurcated NGI plea

and trial option to confirm the defendant's understanding of the

law and to head off later claims of a Bangert violation or

ineffective assistance of counsel.

¶92 By the Court.—The decision of the court of appeals is

affirmed.
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