COURT OF APPEALS

DECISION

DATED AND FILED

March 23, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 and 

RULE 809.62. 

Appeal No. 2019AP2151-CR Cir. Ct. No. 2016CF735

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CHARDEZ HARRISON,

DEFENDANT-APPELLANT.

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

Milwaukee County: WILLIAM S. POCAN and DAVID A. HANSHER, Judges. 

Affirmed. 

Before Brash, P.J., Donald and White, JJ.

¶1 BRASH, P.J. Chardez Harrison appeals his judgment of conviction 

entered after he pled guilty to two counts of armed robbery as a party to the crime, 

and one count of possession of a firearm by a person adjudicated delinquent. He 
No. 2019AP2151-CR

2

also appeals the order of the circuit court denying his postconviction motion seeking 

to withdraw his pleas. 

¶2 Harrison argues that plea withdrawal is warranted because his trial 

counsel was ineffective for failing to file a motion to suppress his statements to 

police. Harrison asserts that he invoked his constitutional right to remain silent, but 

the interrogating officers continued to question him. The circuit court held a hearing 

on the suppression issue, and determined that a motion to suppress would not have 

been successful because Harrison’s invocation was not unequivocal and 

unambiguous. The court therefore denied Harrison’s postconviction motion without 

a Machner1 hearing. We affirm.

BACKGROUND

¶3 The charges against Harrison stem from events that occurred in 

February 2016. Milwaukee Police were investigating several armed carjackings and 

armed robberies that had occurred in the course of one night. An undercover officer 

on patrol spotted two of the stolen vehicles in an alley and observed several subjects 

getting into one of those vehicles. An officer in a marked squad responded and 

attempted to pull the vehicle over. After a short pursuit—where the stolen vehicle 

reached speeds of up to fifty miles-per-hour on city streets—the subjects abandoned 

the vehicle. Officers apprehended the driver of the vehicle, later identified as 

Harrison. 

¶4 Harrison entered his pleas in May 2016. As part of the plea 

agreement, two counts of attempted armed robbery with the threat of force as a party 

 

1

 See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979). 
No. 2019AP2151-CR

3

to a crime were dismissed and read in at sentencing. Harrison was sentenced to 

twenty-four years of imprisonment, bifurcated as fifteen years of initial confinement 

and nine years of extended supervision.2 

¶5 Harrison filed a postconviction motion in February 2019, arguing that 

his trial counsel was ineffective for failing to file a motion to suppress his statements 

to police after he was arrested. Harrison asserted that he had invoked his right to 

remain silent by telling the interrogating detective that he did not want to make a 

statement. The parties suggested, and the circuit court agreed, that the most practical

way to address that issue would be to hold a suppression hearing. 

¶6 That hearing was held in September 2019. It included testimony from 

the first detective who interrogated Harrison at approximately 3:30 a.m. on the night 

he was arrested. The detective testified that after he had read Harrison his Miranda3

rights, he asked Harrison, “Realizing that you have these rights, are you now willing 

to answer some questions or make a statement?” The detective explained that this 

is a two-part question that is printed on department-issued Miranda cards they are 

required to use. 

 

2

 Harrison was initially sentenced to a twenty-six-year term of imprisonment. His sentence 

was modified after the circuit court granted the part of his postconviction motion seeking 

modification based on new factors that were not considered at sentencing. After a hearing on that 

issue held in June 2019, the circuit court reduced Harrison’s sentence for one of the armed robbery 

convictions from eight years of initial confinement to six years of initial confinement. On appeal, 

Harrison does not present any arguments relating to that decision. 

Additionally, Harrison’s postconviction motion asserted that his trial counsel was 

ineffective for failing to request a restitution hearing. Harrison does not renew these arguments on 

appeal, so we deem them abandoned. See State v. Ayala, 2011 WI App 6, ¶22, 331 Wis. 2d 171, 

793 N.W.2d 511.

The Honorable William S. Pocan took Harrison’s pleas and imposed sentence. The 

Honorable David A. Hansher heard and decided Harrison’s postconviction motion.

3

 See Miranda v. Arizona, 384 U.S. 436 (1966).
No. 2019AP2151-CR

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¶7 In response to the detective’s question, Harrison answered “I don’t 

want to make no statement right now.” The detective testified that he then followed 

up regarding the other part of the question by saying, “Oh, okay. Will you answer 

some questions that I have for you?” Harrison responded by asking “what’s the 

question?” The detective then proceeded to ask Harrison “pedigree questions” such 

as his full name, birth date, family information, and the like. The detective testified 

that he eventually asked Harrison about the charges against him, and that Harrison 

denied involvement in the armed robberies and possessing a firearm. 

¶8 A second detective interviewed Harrison later the same day, at 

approximately 6 p.m. That detective also testified at the hearing, and stated that 

after he read Harrison his Miranda rights, Harrison gave a full statement regarding 

the incidents and confessed to his involvement. 

¶9 The circuit court determined that had Harrison’s trial counsel filed the 

motion to suppress, it would have been denied. The court found that while Harrison 

had unequivocally declared that he did not want to make a statement, he did not 

unequivocally state that he did not want to answer questions. In fact, the court 

specifically observed that during the first interrogation, which lasted over an hour, 

Harrison never made a request to stop the questioning. Furthermore, the court noted 

that when a suspect gives an ambiguous and equivocal response such as Harrison 

did, police are not required to cease their interrogation. 

¶10 Given that ruling, the circuit court denied Harrison’s postconviction 

motion without granting a Machner hearing. This appeal follows.
No. 2019AP2151-CR

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DISCUSSION

¶11 On appeal, Harrison maintains that plea withdrawal is warranted 

based on the ineffective assistance of his trial counsel. A defendant seeking to 

withdraw his or her plea after sentencing “must prove, by clear and convincing 

evidence, that a refusal to allow withdrawal of the plea would result in ‘manifest 

injustice.’” State v. Brown, 2006 WI 100, ¶18, 293 Wis. 2d 594, 716 N.W.2d 906 

(citation omitted). Manifest injustice as it relates to plea withdrawal may be 

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

WI 34, ¶49, 347 Wis. 2d 30, 829 N.W.2d 482.

¶12 A claim of ineffective representation requires that a postconviction 

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

Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979). Harrison asserts 

that the circuit court erred in not granting a Machner hearing for his claim that his 

trial counsel was ineffective for failing to file a motion to suppress his statements to 

police. 

¶13 However, a defendant is not automatically entitled to an evidentiary 

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

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

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

if true, would entitle the defendant to relief.” State v. Allen, 2004 WI 106, ¶14, 274 

Wis. 2d 568, 682 N.W.2d 433. Whether a defendant’s motion “on its face” alleges 

sufficient material facts to entitle that defendant to relief is a question of law that 

we review de novo. Id., ¶9.

¶14 If, on the other hand, the postconviction motion “does not raise facts 

sufficient to entitle the movant to relief, or presents only conclusory allegations, or 
No. 2019AP2151-CR

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if the record conclusively demonstrates that the defendant is not entitled to relief,”

the trial court, in its discretion, may either grant or deny a hearing. Id. We review 

this decision under the deferential erroneous exercise of discretion standard. Id.

¶15 To demonstrate ineffective assistance of counsel, a defendant must 

show that his trial counsel’s performance was deficient and that the deficiency 

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The 

defendant “must prevail on both parts of the test to be afforded relief.” Allen, 274 

Wis. 2d 568, ¶26. We review de novo “‘the legal questions of whether deficient 

performance has been established and whether it led to prejudice rising to a level 

undermining the reliability of the proceeding.’” State v. Roberson, 2006 WI 80, 

¶24, 292 Wis. 2d 280, 717 N.W.2d 111 (citation omitted). However, “[a] court need 

not address both components of this inquiry if the defendant does not make a 

sufficient showing on one.” State v. Smith, 2003 WI App 234, ¶15, 268 Wis. 2d 

138, 671 N.W.2d 854.

¶16 In this case, the circuit court, with agreement from the parties, 

concluded that holding a hearing on the suppression issue was the most 

straightforward means of determining whether the failure to file a suppression 

motion was a deficiency that had prejudiced Harrison’s defense. To make its 

determination regarding whether a suppression motion would have been successful, 

the court considered the testimony of the detectives who interrogated Harrison, as 

well as case law regarding the invocation of the right to remain silent. Generally, 

when we review whether a person has “sufficiently invoked his or her right to 

remain silent,” we utilize a two-part standard: (1) the findings of fact by the circuit 

court are upheld unless they are clearly erroneous; and (2) the circuit court’s 

application of constitutional principles to those facts is then independently 
No. 2019AP2151-CR

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reviewed. See State v. Markwardt, 2007 WI App 242, ¶30, 306 Wis. 2d 420, 742 

N.W.2d 546. 

¶17 Harrison’s argument focuses on the circuit court’s application of the 

relevant case law to the testimony of the detectives regarding their interrogations of 

Harrison. Specifically, Harrison asserts that he unambiguously and unequivocally 

invoked his right to remain silent when he told the first interrogating detective that 

he did not want to make a statement.

¶18 “A suspect’s Fifth Amendment right to remain silent includes two 

separate protections: (1) the right, prior to questioning, to remain silent unless the 

suspect chooses to speak in the unfettered exercise of his or her own will, and (2) the 

right to cut off questioning.” State v. Hampton, 2010 WI App 169, ¶46, 330 Wis. 

2d 531, 793 N.W.2d 901 (internal citations omitted). These separate protections are 

reflected in the compound question set forth in the Miranda card used by the 

Milwaukee Police Department. 

¶19 Furthermore, the suspect’s invocation of these protections must be 

unambiguous and unequivocal. See Hampton, 330 Wis. 2d 531, ¶46. For the 

suspect’s invocation to be deemed unambiguous, there cannot be “any reasonable 

competing inference [that] can be drawn” from that suspect’s response; if there is, 

then the suspect “did not sufficiently invoke the right to remain silent.” Markwardt, 

306 Wis. 2d 420, ¶36. Moreover, if a suspect “does not unambiguously invoke his 

or her right to remain silent, the police need not cease their questioning of the 

suspect.” State v. Ross, 203 Wis. 2d 66, 78, 552 N.W.2d 428 (Ct. App. 1996).

¶20 Here, the circuit court made the distinction between the two 

protections, finding that while Harrison was unambiguous in his invocation of his 

rights with regard to making a statement, his response regarding questioning was 
No. 2019AP2151-CR

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not unambiguous. We agree. Harrison’s response to the first detective’s question 

relating to Harrison’s willingness to “answer some questions” was to ask “what’s 

the question?” From that response, the detective drew the reasonable inference that 

Harrison was willing to answer questions, as opposed to invoking his right to “cut 

off” questioning. See Hampton, 330 Wis. 2d 531, ¶46. Therefore, the first detective 

was not compelled to cease his questioning of Harrison, nor was the second 

detective prohibited from conducting the subsequent interview. See Ross, 203 Wis. 

2d at 78.

¶21 Consequently, the circuit court properly concluded that a motion to 

suppress on this issue would not have been successful. As a result, Harrison has not 

established that his trial counsel performed deficiently. See State v. Jacobsen, 2014 

WI App 13, ¶49, 352 Wis. 2d 409, 842 N.W.2d 365 (“An attorney does not perform 

deficiently by failing to make a losing argument.”). Furthermore, Harrison has not 

established prejudice, because the failure to file an unsuccessful motion does not 

demonstrate a reasonable probability that the outcome of the proceedings would 

have been different. See State v. Provo, 2004 WI App 97, ¶15, 272 Wis. 2d 837,

681 N.W.2d 272. As a result, Harrison’s claim of ineffective assistance of counsel 

fails. See Allen, 274 Wis. 2d 568, ¶26.

¶22 Therefore, the circuit court did not erroneously exercise its discretion 

in determining that Harrison was not entitled to a Machner hearing on that claim.4 

See Allen, 274 Wis. 2d 568, ¶9. Accordingly, we affirm the circuit court’s denial 

 

4

 We further note that Harrison failed to allege sufficient facts to establish prejudice in his 

postconviction motion, in that he did not assert that he would have gone to trial instead of pleading 

guilty had his trial counsel filed a suppression motion with a sufficient factual basis to support that 

allegation. See State v. Bentley, 201 Wis. 2d 303, 312-13, 548 N.W.2d 50 (1996); see also State v. 

Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433. Thus, the circuit court did not 

erroneously exercise its discretion in declining to grant a Machner hearing on that ground as well. 

See Allen, 274 Wis. 2d 568, ¶9.
No. 2019AP2151-CR

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of Harrison’s postconviction motion seeking to withdraw his pleas, see Taylor, 347 

Wis. 2d 30, ¶49, as well as his judgment of conviction.

By the Court.—Judgment and order affirmed. 

Not recommended for publication in the official reports.