COURT OF APPEALS

DECISION

DATED AND FILED

March 21, 2024

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 WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2022AP1048 Cir. Ct. No. 2011CF963

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

PHILLIP A. BYRD,

 DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Rock County: 

MICHAEL A. HAAKENSON, Judge. Affirmed. 

Before Kloppenburg, P.J., Graham, and Nashold, 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 WIS. STAT. RULE 809.23(3). 
No. 2022AP1048

2

¶1 PER CURIAM. Phillip Byrd appeals an order denying his 

postconviction motion that was filed under WIS. STAT. § 974.06 (2021-22).

1

 The 

issue is whether the motion was properly denied without an evidentiary hearing. 

We conclude that it was, and therefore we affirm.

¶2 In 2015, Byrd pled to and was convicted of one count of intentional 

failure to pay child support. He did not pursue postconviction relief under WIS.

STAT. RULE 809.30, but filed a motion under WIS. STAT. § 974.06 in 2021. The 

circuit court denied the motion in 2022, and Byrd appeals. 

¶3 A circuit court is required to hold an evidentiary hearing on a 

defendant’s postconviction motion when the facts alleged in the motion, if true, 

would entitle the defendant to relief, and when the record does not conclusively 

demonstrate that the defendant is not entitled to relief. State v. Jackson, 2023 

WI 3, ¶11, 405 Wis. 2d 458, 983 N.W.2d 608. Both parts of this test raise issues 

of law that we review de novo.2 Id., ¶8.

 

1

 All references to the Wisconsin Statutes are to the 2021-22 version.

2

 The State asserts that the circuit court decision under review in this appeal was 

discretionary. However, discretion plays a role only when a circuit court decides whether it will 

hold a hearing despite the defendant’s failure to meet the legal test described above. See State v.

Ruffin, 2022 WI 34, ¶28, 401 Wis. 2d 619, 974 N.W.2d 432. Here, the court ultimately decided 

not to hold a hearing. The appropriate analysis, therefore, is whether the court was required to 

hold a hearing, which, as we state, raises only questions of law, not discretion. If we decide that 

the court was required to hold a hearing, then no issues of discretion are present to be considered. 

Only if the court was not required to hold a hearing might we also consider whether it was an 

erroneous exercise of discretion to deny a hearing when one was not legally required. However, 

it is difficult to imagine a situation in which such a denial would be an erroneous exercise of 

discretion, and therefore the issue is rarely argued this way by parties, and courts rarely apply this 

latter part of the analysis. Instead, the main focus is on the court’s initial legal decision that no 

hearing was required, and this is the argument made here by Byrd. In sum, the State is correct 

that discretion is involved in the final step of the analysis, if the analysis proceeds that far, but this 

is rarely the step that matters on appeal.
No. 2022AP1048

3

¶4 Byrd discusses several issues on appeal. He first argues that certain 

aspects about the procedure used by the circuit court to decide his postconviction 

motion were improper. However, because our review of the issues raised in 

Byrd’s motion is independent from the circuit court decision, errors of this type 

would not affect our review on appeal, and we do not discuss them further.

¶5 Byrd appears to argue that the plea colloquy was defective because 

the circuit court failed to discuss the intent element of the charge. However, for 

this defect to entitle Byrd to an evidentiary hearing, he must also allege that he did 

not understand the intent element at the time of his plea. See State v. Howell, 

2007 WI 75, ¶27, 301 Wis. 2d 350, 734 N.W.2d 48. Byrd’s postconviction motion 

does not contain this allegation, and therefore he was not entitled to a hearing.

¶6 Byrd argues that he should be allowed to withdraw his plea because 

he had a defense available. He appears to argue this issue as both a claim that his 

plea was not knowing, voluntary, and intelligent, and also as a claim for

ineffective assistance of counsel based on an allegation that his trial counsel did 

not investigate this defense. Byrd argues that the available defense was his 

inability to pay support due to his difficulty finding work during the charged 

period. See WIS. STAT. § 948.22(6) (affirmative defense of inability to pay). 

However, under either framing, the argument fails because Byrd did not allege that

further investigation of this defense would have led him to reject the plea offer and 

go to trial. Such an allegation is necessary to obtain an evidentiary hearing. See 

State v. Bentley, 201 Wis. 2d 303, 313, 548 N.W.2d 50 (1996). 

¶7 Byrd next argues that his trial counsel was ineffective by failing to 

move for a determination of whether Byrd was competent to proceed. This 
No. 2022AP1048

4

argument fails because Byrd did not allege facts from which it could reasonably be 

inferred that he was not competent at that time.

¶8 Byrd may also be arguing that he should be allowed to withdraw his 

plea because he mistakenly believed that his conviction on this charge would have 

the effect of expunging or ending his child support obligations. However, Byrd 

does not provide any reasonable explanation of why he would have held that 

belief, and he also appears to be denying that he personally remembers actually 

having that belief. Instead, he suggests that the content of the judgment of 

conviction shows that he held that belief. The judgment stated that restitution was 

“[t]o be determined; to be paid after release from custody.” We do not agree that 

this statement supports that interpretation.

By the Court.—Order affirmed.

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

RULE 809.23(1)(b)5.