Court of Appeals of Wisconsin.
Case No. 95-1980-CR.
Opinion Released: May 14, 1996 Opinion Filed: May 14, 1996 This opinion will not be published. See RULE 809.23(1)(b)5, STATS.
APPEAL from a judgment and an order of the circuit court for Milwaukee County: PATRICIA D. McMAHON, Judge Affirmed.
Before Wedemeyer, P.J., Sullivan and Fine, JJ.
PER CURIAM.
Dante Boston appeals from a judgment of conviction for first-degree reckless homicide while armed, party to a crime See §§ 940.02(1), 939.63, and 939.05, STATS. Boston also appeals from an order denying his post-conviction motion. Boston claims that the trial court erred in not holding aMiranda-Goodchild hearing to determine the voluntariness of his statement and to establish whether hisMiranda rights were given.[1] He also claims that the trial court erred in not holding aMachner hearing to determine whether defense counsel was ineffective.[2] We affirm.
Boston was charged with first-degree reckless homicide while armed, party to a crime, based upon his role in the death of Sam Baker. After his arrest, Boston made a statement to the police that implicated himself in the crime. Before trial, no written motions were filed challenging the admissibility of this statement. During trial, however, defense counsel requested aMiranda-Goodchild hearing to determine the voluntariness of the statement. The trial court denied Boston’s request for a Miranda-Goodchild hearing. Boston was found guilty of the crime charged. Boston filed a post-conviction motion challenging defense counsel’s effectiveness. The motion was denied without a hearing.
First, Boston alleges that the trial court erred in not holding a mid-trial Miranda-Goodchild hearing to determine the voluntariness of his statement made to the police, and to establish whether the Miranda warnings were given to him. “[U]nless the defendant challenges the voluntariness of the statements he made or that he was not advised of hisMiranda rights, the trial court is under no obligation to hold an evidentiary hearing outside the presence of the jury.”State v. Monje, 109 Wis.2d 138, 149, 325 N.W.2d 695, 701 (1982). At trial, Boston conceded that he received completeMiranda warnings and did not dispute the voluntariness of his statement to the police. Further, he did not allege sufficient facts to raise a question of fact regarding the need for a Miranda-Goodchild hearing. Seeid. The trial court did not err in refusing to hold a mid-trial Miranda-Goodchild hearing.
Next, Boston alleges that the trial court erroneously denied his claim of ineffective assistance of counsel without holding aMachner hearing. To establish ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and also that this deficient performance was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Normally, a post-conviction challenge to the effectiveness of trial counsel requires an evidentiary hearing at which counsel testifies regarding the defendant’s assertions of deficient performance. State v. Machner, 92 Wis.2d 797, 804, 285 N.W.2d 905, 908 (Ct.App. 1979). If a post-conviction motion alleges facts that, if true, would entitle the defendant to relief on his claim of ineffective assistance, the trial court must hold a Machner hearing. Statev. Toliver, 187 Wis.2d 346, 360, 523 N.W.2d 113, 118 (Ct.App. 1994). Conclusory allegations of ineffective assistance unsupported by factual assertions, however, are legally insufficient to compel aMachner hearing. Id.
Boston’s post-conviction motion failed to allege sufficient facts to support a claim of ineffective assistance of counsel. His motion merely claims that trial counsel was ineffective because counsel did not object to the trial court’s refusal to hold a Miranda-Goodchild hearing. The trial court determined that this did not justify a post-conviction hearing. We agree. Boston failed to allege sufficient facts to raise a question of fact regarding prejudice, specifically why “the results of the proceeding would be different,”Strickland, 466 U.S. at 694, had counsel objected to the trial court’s refusal to hold a Miranda-Goodchild
hearing. The trial court correctly denied Boston’s motion without a Machner hearing.
By the Court. — Judgment and order affirmed.
(1966), and State ex rel. Goodchild v.Burke, 27 Wis.2d 244, 133 N.W.2d 753 (1965), cert. denied, 384 U.S. 1017 (1966).