State v. Tracy Laver Hailes

2023 WI APP 29
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2021AP1339-CR

†Petition for Review Filed

Complete Title of Case:

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TRACY LAVER HAILES,

DEFENDANT-APPELLANT.

Opinion Filed: May 9, 2023
Submitted on Briefs: April 13, 2022
Oral Argument:

JUDGES: Brash, C.J., Dugan and White, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
briefs of Christopher P. August of the Office of the State Public
Defender in Milwaukee.

Respondent
ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the
brief of Joshua L. Kaul and Kara L. Janson of the Wisconsin
Department of Justice in Madison.
2023 WI App 29
COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 9, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2021AP1339-CR Cir. Ct. No. 2015CF4326

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TRACY LAVER HAILES,

DEFENDANT-APPELLANT.

APPEAL from a judgment and orders of the circuit court for
Milwaukee County: JANET C. PROTASIEWICZ and MICHAEL J.
HANRAHAN, Judges. Affirmed.

Before Brash, C.J., Dugan and White, JJ.

2
No. 2021AP1339-CR

¶1 DUGAN, J. Tracy Laver Hailes appeals his judgment of conviction
and two orders of the circuit court denying his motions for postconviction relief.1
On appeal, Hailes argues that the circuit court erroneously denied his motion to
suppress evidence of drug activity at two apartments located at 618 North 30th
Street (30th Street). He also argues that two penalty enhancers—one for repeat
offenders and the other for second or subsequent offenders, found in WIS. STAT.
§ 939.62 (2021-22),2 and WIS. STAT. § 961.48—were erroneously applied to the
drug offense charges in his case—he was charged with and pled guilty to the drug
charges with both of the enhancers. Hailes further argues that he is entitled to plea
withdrawal, sentence modification, or resentencing based on the fact that he was
erroneously charged with and pled guilty to the drug charges with both of the penalty
enhancers.

¶2 We conclude that the circuit court properly denied Hailes’ motion to
suppress because the affidavits attached to the search warrants established probable
cause to search the two apartments located at 30th Street. We further conclude that
the two penalty enhancers were erroneously applied to Hailes because the plain
meaning of WIS. STAT. § 973.01(2)(c) states that either WIS. STAT. § 939.62 “or”
WIS. STAT. § 961.48 can apply to his drug charges—but not both. However, we
nevertheless reject Hailes’ argument that he is entitled to plea withdrawal, sentence
modification, and resentencing on the basis that these two penalty enhancers were
applied to him. Hailes fails to demonstrate that the penalty enhancers in any way

1
The Honorable Janet C. Protasiewicz presided over Hailes’ plea and sentencing and
entered the judgment of conviction and order denying Hailes’ first motion for postconviction relief.
The Honorable Michael J. Hanrahan entered the order denying Hailes’ supplemental motion for
postconviction relief.
2
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

3
No. 2021AP1339-CR

induced him to plead guilty, such that he is entitled to plea withdrawal, and he fails
to demonstrate that the penalty enhancers played any role at the sentencing hearing,
such that he is entitled to sentence modification or resentencing. Accordingly, we
affirm.

BACKGROUND

¶3 In a criminal complaint filed on September 25, 2015, the State charged
Hailes with nine counts related to drug operations that Hailes ran out of two
apartments located at 30th Street. The charges arose from the execution of three
search warrants issued for three apartments connected to Hailes. One of the
apartments was located at 520 North 29th Street (29th Street) and the other two
apartments were located at 30th Street. The nine charges issued by the State resulted
from evidence recovered from the two apartments—apartment 102 and apartment
208—located at 30th Street. As to apartment 102, Hailes was charged with
(1) possession of a firearm by a felon, (2) possession with intent to deliver heroin,
(3) possession with intent to deliver cocaine, (4) possession with intent to deliver
THC, and (5) keeping a drug house. As to apartment 208, Hailes was charged with
(1) possession of a firearm by a felon, (2) possession with intent to deliver THC,
(3) possession with intent to deliver cocaine, and (4) keeping a drug house. All the
charges carried the penalty enhancer for a repeat offender, see WIS. STAT.
§ 939.62(1), and all charges, with the exception of the two charges of possession of
a firearm by a felon, carried the penalty enhancer for a second or subsequent offense,
see WIS. STAT. § 961.48(1).

¶4 Hailes filed a motion to suppress the evidence recovered at the two
apartments located at 30th Street on the basis that the search warrants failed to
establish probable cause of illegal activity at either of the apartments. Rather, Hailes

4
No. 2021AP1339-CR

contended that the affidavits attached to the search warrants only established
probable cause of illegal activity at the apartment located at 29th Street, and there
was no nexus with the activity at 29th Street such that the activity there constituted
probable cause to search the apartments at 30th Street.

¶5 The circuit court denied Hailes’ motion.3 At the hearing on the
motion, the circuit court stated that the affidavits provided statements by a
confidential informant describing that he saw Hailes at the apartment on 29th Street
with “substantial amounts of cocaine and heroin and some marijuana and a couple
guns” on two separate occasions. The circuit court further noted that the
confidential informant observed Hailes moving furniture into the apartment
building located on 30th Street. The circuit court also stated that the affidavits
described an independent investigation done by the police in which the police
observed Hailes’ vehicles parked at the 30th Street address and a statement by an
officer that, based on his training and experience, he knows that drug dealers have
the tools of their trade located at their homes. Thus, the circuit court found, “in
tying all that together,” the warrants were sufficient.

¶6 Hailes subsequently entered a plea to five of the original charges, with
the remaining four charges dismissed and read in for sentencing purposes. In all,
Hailes pled guilty to two counts of possession of a firearm by a felon, as a repeater;4
one count of possession with intent to deliver heroin, as a repeater and as a second

3
The Honorable Timothy Witkowiak denied Hailes’ motion to suppress.
4
See WIS. STAT. §§ 941.29(2)(a), 939.50(3)(g), 939.62(1)(b).

5
No. 2021AP1339-CR

or subsequent offense;5 and two counts of possession with intent to deliver cocaine,
as a repeater and as a second or subsequent offense.6 He was then sentenced on all
charges to twenty-three years of imprisonment, composed of fourteen years of initial
confinement and nine years of extended supervision.

¶7 Hailes filed his first motion for postconviction relief, in which he
argued that he was entitled to plea withdrawal on the grounds that the repeat
offender and the second or subsequent offense penalty enhancers were erroneously
applied to him. See WIS. STAT. §§ 939.62(1) (repeat offender), 961.48(1) (second
or subsequent offense). He argued that pursuant to WIS. STAT. § 973.01(2)(c), either
penalty enhancer could apply to his drug charges, but not both. He alternatively
requested sentence modification or resentencing based on the erroneous application
of both penalty enhancers to his case. Relying on State v. Maxey, 2003 WI App 94,
264 Wis. 2d 878, 663 N.W.2d 811, the circuit court denied his motion and found
that both penalty enhancers were properly applied to his case. As a result, the circuit
court did not reach Hailes’ remaining arguments for plea withdrawal, sentence
modification, or resentencing.

¶8 Hailes subsequently filed a supplemental postconviction motion. He
again argued for plea withdrawal based on an erroneous application of both penalty
enhancers to his case. However, in his supplemental postconviction motion, he
raised the additional arguments that he was entitled to plea withdrawal based on the
legal impossibility of both penalty enhancers applying to his drug charges and the
illusory benefit provided by his plea deal. The circuit court again denied Hailes’

5
See WIS. STAT. §§ 961.41(1m)(d)3., 939.50(3)(d), 939.62(1)(c), 961.48(1)(a).
6
Count three involved more than ten grams but not more than fifty grams. See WIS. STAT.
§§ 961.41(1m)(cm)4., 939.50(3)(c), 939.62(1)(c), 961.48(1)(a). Count eight involved one gram or
less. See WIS. STAT. §§ 961.41(1m)(cm)1g., 939.50(3)(g), 939.62(1)(b), 961.48(1)(b).

6
No. 2021AP1339-CR

motion and found that both penalty enhancers were properly applied to his drug
charges.

¶9 Hailes now appeals. Additional relevant facts will be set forth below
as necessary.

DISCUSSION

¶10 On appeal, Hailes raises two main arguments. First, Hailes argues
that the circuit court erroneously denied his motion to suppress the evidence
recovered from the two apartments located at 30th Street. Second, Hailes argues
that the two penalty enhancers found in WIS. STAT. § 939.62(1) and WIS. STAT.
§ 961.48(1) were erroneously applied to him, and as result, he is entitled to plea
withdrawal. In the alternative, he argues that he is entitled to sentence modification
or resentencing. We address each argument in turn.

I. Motion to Suppress

¶11 Hailes first argues that the circuit court erroneously denied his motion
to suppress because there was no probable cause to search the apartments located at
30th Street. In particular, Hailes argues that the affidavits attached to the search
warrants did not establish probable cause of illegal activity at the two apartments at
the 30th Street address. He contends that there was no nexus between his drug-
related activity observed by the confidential informant at the apartment at 29th
Street and his conduct at the two apartments at 30th Street, and therefore, there was

7
No. 2021AP1339-CR

no probable cause to believe that evidence of criminal activity would have been
found at 30th Street.7

¶12 We review a circuit court’s denial of a motion to suppress evidence
using a two-step standard. State v. Lonkoski, 2013 WI 30, ¶21, 346 Wis. 2d 523,
828 N.W.2d 552. We will uphold the circuit court’s findings of fact unless they are
clearly erroneous, and we review independently the application of the facts to the
constitutional principles. Id.

¶13 Hailes contends that the circuit court erroneously denied his motion
to suppress because the affidavits attached to the search warrants failed to establish
probable cause. “Search warrants may issue only upon ‘a finding of probable cause
by a neutral and detached magistrate.’” State v. Ward, 2000 WI 3, ¶21, 231 Wis. 2d
723, 604 N.W.2d 517 (citation omitted). “[W]e accord great deference to the
determination made by the warrant-issuing magistrate,” and the defendant bears the
burden to show “that the facts are clearly insufficient to support a probable cause
finding.” Id.

¶14 Probable cause is “a practical, common-sense decision whether, given
all the circumstances set forth in the affidavit” that “there is a fair probability that
contraband or evidence of a crime will be found in a particular place.” State v.
Higginbotham, 162 Wis. 2d 978, 990, 471 N.W.2d 24 (1991) (citation omitted).
“[A] probable cause determination must be based upon what a reasonable magistrate
can infer from the information presented by the police.” Ward, 231 Wis. 2d 723,

7
Hailes concedes that there was probable cause to search the apartment at 29th Street, and
he only takes issue with the probable cause to search the two apartments located at 30th Street,
which he contends was based solely on his activities witnessed at the 29th Street apartment. Thus,
we accept his concession that there was probable cause to search the apartment at 29th Street.

8
No. 2021AP1339-CR

¶26. “The test is not whether the inference drawn is the only reasonable inference.
The test is whether the inference drawn is a reasonable one.” Id., ¶30.

¶15 In this case, we conclude that there was a reasonable inference that
evidence of drug-related activity would be found at the two apartments located at
30th Street, given all the circumstances set forth in the affidavits attached to the
search warrants. Here, we turn first to the substance of the attached affidavits in
more detail. As both parties recognize, the affidavits attached to the search warrants
in this case are nearly identical, with each affidavit containing information provided
by an officer, a confidential informant, and Hailes’ probation agent.

¶16 In those affidavits, the officer described his experience conducting
drug trafficking investigations and his participation in the execution of search
warrants related to those investigations. Based on this experience, he described that
he has personally recovered controlled substances, drug paraphernalia, firearms, and
ammunition “located in elaborately hidden compartments within homes” of drug
traffickers and that drug traffickers “commonly” have firearms and ammunition
“either in their residences and/or in other locations where they exercise control and
domination.” The officer further described that, based on his experience, drug
traffickers keep records and other evidence of their drug trafficking activities in their
residences.

¶17 The officer then provided that he received the following information
from a confidential informant about Hailes’ activities: Hailes trafficked cocaine,
heroin, and marijuana at an apartment located at 29th Street during the day, Hailes
kept the drugs in a red shoebox on top of the refrigerator at that address, Hailes was
on probation and had to wear a GPS monitoring bracelet, and that Hailes stayed at
an apartment located at 30th Street during his monitoring hours. Hailes had two

9
No. 2021AP1339-CR

vehicles—a black Infiniti and a white Chevrolet—which the informant had seen
Hailes driving and had seen them at both the 29th Street and the 30th Street
addresses. The informant additionally observed Hailes with a firearm when driving
the black Infiniti. The officer further described the police investigation confirming
Hailes’ connection to these two vehicles based on observation of the 30th Street
location and records of traffic stops in which Hailes was driving one of the two
vehicles.

¶18 The officer also obtained the following information from Hailes’
probation agent and the confidential informant: Hailes was reportedly living in
apartment 307 at 30th Street, but stated that he would be moving to apartment 102
at 30th Street. However, Hailes was also seen moving furniture into apartment 208
at 30th Street. Additionally, during an unscheduled visit by the probation agent, the
agent saw various extension cords and telephone wires were running from apartment
307 to apartment 208. The officer further stated that, in his training and experience,
an individual on probation who is still involved in drug trafficking activities will
maintain multiple residences in order to avoid detection, a subsequent investigation
revealed that Hailes was paying the utilities at apartment 208, and the presence of
cords running from apartment 307 to apartment 208 was an attempt to defeat the
electronic monitoring equipment Hailes was required to wear as a condition of his
probation.

¶19 The probation agent also told the officer that, when the probation
agent arrived for unscheduled visits, the agent was greeted at the locked front door
of the apartment building by a resident, the resident then located the apartment
manager, and then the apartment manager unlocked the door for the probation agent
and accompanied the probation agent to Hailes’ location within the apartment
building. The probation agent further stated that he had observed what he believed

10
No. 2021AP1339-CR

to be lookouts at the apartment building and that these individuals appeared to be
monitoring the premises by walking the perimeter of the property and sitting at the
front door.

¶20 Finally, the affidavit referenced Hailes’ criminal record, which dates
back to 2004 and contains multiple felony convictions and arrests for drug-related
activity. He had convictions for drug violations in 2011, 2012, and 2013, and eleven
arrests for drug violations from 2004 to 2013.

¶21 Despite the information provided in the affidavits, Hailes nevertheless
argues that the affidavits attached to the search warrants here were insufficient under
State v. Sloan, 2007 WI App 146, 303 Wis. 2d 438, 736 N.W.2d 189, and fail to
establish probable cause. We disagree.

¶22 In Sloan, we addressed the sufficiency of an affidavit for the search
of a residence after the defendant there attempted to mail a package containing
marijuana through UPS. Id., ¶¶2, 28. The residence that was searched was listed
as the return address on the package containing the marijuana. Id., ¶¶2, 6. The
defendant’s address in Wisconsin Department of Transportation records matched
the return address, and according to WE Energies records, the defendant also paid
the utilities at that same address. Id., ¶5. However, the residence was owned by a
Leslee Ericksen (formerly Leslee Sloan), the defendant also had a Florida driver’s
license with a different address, and the defendant further told the UPS employee
that he was shipping the package to himself in Florida. Id., ¶¶2, 5.

¶23 Under the facts presented in Sloan, this court concluded that the
affidavit failed to establish probable cause to search the residence at the return
address on the package because the affiant “never tells the reader that he believes
Sloan is, or has recently been, engaged in any criminal activity at the residence to

11
No. 2021AP1339-CR

be searched, or why he believes that is the case.” Id., ¶31. Importantly, we noted
several facts that were missing from the affidavit that could have supported a finding
of probable cause, including surveillance of the residence that “suggests criminal
activity might be afoot.” Id., ¶32. We emphasized that there was no report about
drug-related or other suspicious activity at the residence, no claim of prior police
reports of drug-related activity at the residence, and no claim that the defendant had
prior involvement with drug activity. Id.

¶24 While the affidavits here may share some similarities to the affidavits
in Sloan, a thorough reading of Sloan shows that it is inapplicable here. As clearly
set forth in the affidavits to search the apartments at 30th Street, Hailes’ probation
agent observed what he believed to be suspicious activity at the two apartments,
including the presence of lookouts monitoring the premises and extension cords
running between the two apartments in a potential attempt to defeat the monitoring
equipment used for Hailes’ probation. Hailes also reported that he was moving to
apartment 102, but he was instead seen moving furniture into apartment 208. Thus,
many of the facts “suggest[ing] criminal activity might be afoot” and noted as
missing in Sloan, 303 Wis. 2d 438, ¶32, are present in this case. Moreover, while
there may be innocent explanations for some of these activities, as Hailes
acknowledges, “[t]he test is not whether the inference drawn is the only reasonable
inference,” but rather “whether the inference drawn is a reasonable one.” See Ward,
231 Wis. 2d 723, ¶30. Further, unlike the facts in Sloan where we stated that there
was no claim that the defendant had prior involvement with drug activity, here, the
record shows that Hailes had a long history of drug convictions and arrests dating
back to 2004. Accordingly, we conclude that Sloan does not support Hailes’
argument that the affidavits in this case are insufficient to sustain a finding of
probable cause.

12
No. 2021AP1339-CR

¶25 Additionally, while the confidential informant may have only seen
Hailes with drugs at the 29th Street apartment, the apartments at 30th Street were
nonetheless clearly linked to Hailes, given that he was seen driving from one address
to the other and his probation agent regularly visited him at the 30th Street address.
The probation agent also observed suspicious activity at the 30th Street address, and
the officer clearly stated in the affidavit that, based on his experience, individuals
involved in drug trafficking activities keep records or other items related to those
activities at their residences. We conclude that taken together, the affidavits
establish probable cause.

¶26 Consequently, we conclude that the affidavits attached to the search
warrants establish probable cause to search the two apartments located at 30th
Street, and the circuit court properly denied Hailes’ motion to suppress.8

II. Penalty Enhancers

¶27 Hailes next argues that the two penalty enhancers found in WIS. STAT.
§ 939.62(1) and WIS. STAT. § 961.48(1) were erroneously applied to him.
Specifically, Hailes argues that the plain language of WIS. STAT. § 973.01(2)(c)
provides that either the penalty enhancer found in § 939.62(1) “or” the penalty
enhancer found in § 961.48(1) applies—but not both. He then argues that he is
entitled to plea withdrawal because both of the penalty enhancers were applied to
his drug charges in violation of § 973.01(2)(c). In the alternative, he argues that he
is entitled to sentence modification or resentencing.

8
Hailes additionally argues that the good faith exception does not save the unlawful search
in this case. As a result of our conclusion, we do not address his argument. See State v. Blalock,
150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (“[C]ases should be decided on the
narrowest possible ground.”).

13
No. 2021AP1339-CR

A. Interpretation of WIS. STAT. § 973.01(2)(c)

¶28 We first address Hailes’ argument that both penalty enhancers cannot
be applied to him under WIS. STAT. § 973.01(2)(c), the statute that governs the order
in which penalty enhancers are applied when more than one applies to a case. This
presents an issue of statutory interpretation. “[S]tatutory interpretation ‘begins with
the language of the statute. If the meaning of the statute is plain, we ordinarily stop
the inquiry.’” State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45,
271 Wis. 2d 633, 681 N.W.2d 110 (citation omitted). We give statutory language
“its common, ordinary, and accepted meaning, except that technical or specially-
defined words or phrases are given their technical or special definitional meaning.”
Id. “[T]he purpose of statutory interpretation is to determine what the statute means
so that it may be given its full, proper, and intended effect.” Id., ¶44. We review
issues of statutory interpretation independently. See State v. Arberry, 2018 WI 7,
¶14, 379 Wis. 2d 254, 905 N.W.2d 832.

¶29 Turning to the text of the statute, WIS. STAT. § 973.01(2)(c) provides:

1. Subject to the minimum period of extended supervision
required under par. (d), the maximum term of confinement
in prison specified in par. (b) may be increased by any
applicable penalty enhancement statute. If the maximum
term of confinement in prison specified in par. (b) is
increased under this paragraph, the total length of the
bifurcated sentence that may be imposed is increased by the
same amount.

2. If more than one of the following penalty enhancement
statutes apply to a crime, the court shall apply them in the
order listed in calculating the maximum term of
imprisonment for that crime:

a. Sections 939.621, 939.623, 939.632, 939.635,
939.645, 946.42(4), 961.442, 961.46, and 961.49.

b. Section 939.63.

14
No. 2021AP1339-CR

c. Section 939.62(1) or 961.48.

¶30 In his argument, Hailes highlights the use of the word “or” in
subparagraph c. and contrasts the use of “or” in subparagraph c. with the use of the
word “and” in subparagraph a. He argues that the use of the word “or” indicates
that only one of the penalty enhancers found in WIS. STAT. § 939.62(1) and WIS.
STAT. § 961.48 can apply, but not both.

¶31 We agree. “When the legislature chooses to use two different words,
we generally consider each separately and presume that different words have
different meanings.” See Pawlowski v. American Fam. Mut. Ins. Co., 2009 WI
105, ¶22, 322 Wis. 2d 21, 777 N.W.2d 67. “The use of different words joined by
the disjunctive connector ‘or’ normally broadens the coverage of the statute to reach
distinct, although potentially overlapping sets.” See id. (emphasis added). Thus,
we conclude that the plain language of the statute clearly indicates that either
§ 939.62(1) “or” § 961.48 can apply to enhance a penalty, but not both.

¶32 By contrast, the State argues that Maxey, 264 Wis. 2d 878, controls.
In Maxey, we addressed whether the penalty enhancers found in WIS. STAT.
§ 939.62(1) and WIS. STAT. § 961.48 could both be applied to a defendant at the
same time, and we concluded that both could apply. Maxey, 264 Wis. 2d 878, ¶23.
There, however, we interpreted the two statutes without the benefit of WIS. STAT.
§ 973.01(2)(c). Since our decision in Maxey, § 973.01(2)(c) went into effect. See
2001 Wis. Act 109, § 1129 (creating § 973.01(2)(c)); Maxey, 264 Wis. 2d 878, ¶1
(interpreting the 1999-2000 version of the Wisconsin Statutes). Consequently, we
conclude that our prior conclusion in Maxey is inapplicable here, and our conclusion
today is instead controlled by the plain language of § 973.01(2)(c), which plainly

15
No. 2021AP1339-CR

instructs that § 939.62(1) “or” § 961.48 may be applied by the circuit court in
calculating the maximum term of imprisonment, but not both.

¶33 Having concluded that both penalty enhancers cannot apply at the
same time, we turn next to whether Hailes is entitled to any of the relief he seeks
based on the application of both penalty enhancers to his drug charges in this case.

B. Plea Withdrawal

¶34 Hailes first argues that he is entitled to plea withdrawal on the basis
of the erroneous application of both penalty enhancers to his drug charges. He
makes this argument both on the grounds that his plea was not knowing, intelligent,
and voluntary and that he received ineffective assistance of counsel. We address
each argument for plea withdrawal in turn.

¶35 “A defendant is entitled to withdraw a guilty plea after sentencing
only upon a showing of ‘manifest injustice’ by clear and convincing evidence.”
State v. Bentley, 201 Wis. 2d 303, 311, 548 N.W.2d 50 (1996) (citation omitted).
A defendant may demonstrate a manifest injustice in several ways. State v. Dillard,
2014 WI 123, ¶37, 358 Wis. 2d 543, 859 N.W.2d 44. “One way is to show that the
defendant did not enter the plea knowingly, intelligently, and voluntarily.” Id.
“When a guilty plea is not knowing, intelligent, and voluntary, a defendant is
entitled to withdraw the plea as a matter of right because such a plea ‘violates
fundamental due process.’” State v. Brown, 2006 WI 100, ¶19, 293 Wis. 2d 594,
716 N.W.2d 906 (citation omitted). “Whether a defendant’s plea was entered
knowingly, intelligently, and voluntarily is a question of constitutional fact.”
Dillard, 358 Wis. 2d 543, ¶38. We uphold the circuit court’s findings of historical
facts unless they are clearly erroneous, and we independently determine whether

16
No. 2021AP1339-CR

those facts demonstrate that the defendant’s plea was knowing, intelligent, and
voluntary. Id.

¶36 Hailes argues that his plea was “uninformed and its voluntariness
compromised” because he was provided “affirmative misinformation” about the
applicability of both penalty enhancers to his drug charges. The State argues that
although Hailes claims that misinformation about the law “requires plea
withdrawal,” that is not what our supreme court has held. Citing Dillard, 358
Wis. 2d 543, ¶39, the State asserts that “affirmative misinformation about the law
… can support a holding that” plea withdrawal is warranted, but not in all cases. In
his reply brief, Hailes states that he does not dispute, and never claimed, that any
inaccuracy, no matter its materiality, “torpedoes” any otherwise knowing,
intelligent, and voluntary plea. We agree that not every misinformation about the
law entitles a defendant to withdraw his or her plea. Thus, the issue here is whether
the misinformation about the applicability of both of the enhancers entitles Hailes
to withdraw his pleas in this case.

¶37 Although Hailes states that he does not dispute and never claimed that
any inaccuracy, no matter its materiality, “torpedoes” any otherwise knowing,
intelligent, and voluntary plea, he argues that the cases that he cites stand for that
very proposition:

Numerous cases have held that affirmative misinformation
about the law given to the defendant requires plea
withdrawal because the plea is uninformed and its
voluntariness compromised. See, e.g., State v. Riekkoff, 112
Wis. 2d 119, 332 N.W.2d 744 (1983) (holding that when the
defendant pled guilty, incorrectly believing that he could
seek appellate review of an evidentiary order, he
misunderstood the effects of his plea and the plea was
therefore involuntary); [State v. Dawson, 2004 WI App 173,
276 Wis. 2d 418, 688 N.W.2d 12] (holding that the legally
unenforceable reopen-and-amend provision of the
defendant’s plea deal rendered the plea involuntary); State v.

17
No. 2021AP1339-CR

Woods, 173 Wis. 2d 129, 496 N.W.2d 144 (Ct. App. 1992)
(holding that a guilty plea entered at least in part based on
inaccurate legal information about sentencing was neither
knowing or voluntary); State v. Brown, 2004 WI App 179,
276 Wis. 2d 559, 687 N.W.2d 543 (holding that when the
State promised to drop, but did not drop, all charges
requiring the defendant to register as a sex offender or
subjecting the defendant to a Chapter 980 civil confinement,
the defendant’s plea was involuntary).

Hailes further argues that:

Significantly, case law does not require that the
decision to plead be based exclusively on the misinformation
the defendant received. [Dillard, 358 Wis. 2d 543, ¶60.]
Rather, a guilty or no-contest plea is not voluntary unless the
defendant is “fully aware of the direct consequences [of his
plea], including the actual value of any commitments made
to him by the court, prosecutor, or his own counsel…” Id.

¶38 However, as noted above, and acknowledged by Hailes, a defendant
is not entitled to withdraw a guilty plea whenever he or she is provided
misinformation about the law. Rather, courts address the issue under the totality of
the circumstances. See Dillard, 358 Wis. 2d 543, ¶34 (“We first address whether,
under the totality of the circumstances, the defendant has the right as a matter of law
to withdraw his no-contest plea on the ground that it was not entered knowingly,
intelligently, and voluntarily.”). We conclude that the cases discussed below
demonstrate that the totality of the circumstances includes whether the
misinformation provided to Hailes in part induced his decision to enter his plea.

¶39 In the cases cited by Hailes in support of his argument, those courts
concluded that the defendant, in part, entered his or her plea based on the
misinformation. In State v. Woods, 173 Wis. 2d at 140, the court stated, “The record
is clear that Woods, at least in part, made the decision to plead guilty based on

18
No. 2021AP1339-CR

inaccurate information provided to him by the lawyers and judge.”9 In State v.
Riekkoff, 112 Wis. 2d at 120-21, Riekkoff pled guilty pursuant to a plea agreement
that had preserved his right to appeal the circuit court’s denial of his motion to admit
evidence that he sought to introduce at trial.10 Our supreme court stated, “One thing,
however, clearly stands out from the record, and that is that Riekkoff pleaded guilty
believing that he was entitled to an appellate review of the reserved issue.” Id. at
128.

¶40 Hailes also cites to State v. Brown, 276 Wis. 2d 559, to support his
argument. However, in Brown, this court concluded that “Brown’s plea agreement
was purposefully crafted to only include pleas to charges that would not require him
to register as a sex offender or be subject to post-incarceration commitment under
WIS. STAT. ch. 980.” Id., ¶13. Clearly, Brown entered his plea primarily because
the court, the prosecutor, and his counsel told him that he could plead no contest to
the felony charges and not be subject to sex offender registration or post-
incarceration commitment, but as a matter of law, he could not. Hailes further cites
to State v. Dawson, 276 Wis. 2d 418, to support his argument. However, in
Dawson, this court allowed Dawson to withdraw his plea because he “relied on …
a possibility that did not, in fact, exist” when deciding to enter a plea. Id., ¶10.

9
The inaccurate information in Woods was that an adult court could impose an adult
sentence consecutive to a juvenile court disposition. State v. Woods, 173 Wis. 2d 129, 132-33, 496
N.W.2d 144 (Ct. App. 1992).
10
Riekkoff had sought to introduce the opinion testimony of a psychiatrist that, because
of his intoxication, he lacked the mental capacity to form the requisite intent for the charge of
burglary. State v. Riekkoff, 112 Wis. 2d 119, 121, 332 N.W.2d 744 (1983). When he appealed the
circuit court’s denial of his motion, this court refused to review the circuit court’s exclusion of the
psychiatric testimony. Id. at 122.

19
No. 2021AP1339-CR

¶41 Lastly, Hailes argues that Dillard, 358 Wis. 2d 543, supports his
argument.11 However, in Dillard, our supreme court concluded that “‘the
fundamental error of law [about the applicability of the persistent repeater enhancer
to the defendant] that pervaded the plea negotiations and sentencing’ rendered the
defendant’s plea unknowing, unintelligent, and involuntary.” Id., ¶35 (emphasis
added). The court further noted that “the State acknowledges that trial counsel also
identified the dropped persistent repeater enhancer as ‘the most significant factor’
contributing to [Dillard’s] decision to enter a plea of no contest.” Id., ¶54. Thus,
the court concluded that Dillard presented a persuasive account of “why, absent the
misinformation he received about the persistent repeater enhancer, he would not
have entered a no-contest plea, why he would have gone to trial, and why the no-
contest plea was not knowing, intelligent, and voluntary.” Id., ¶52.

¶42 In contrast to the cases above that Hailes cited, we conclude that
Hailes has failed to establish that the penalty enhancers in any way induced his plea,
such that Hailes can now claim that his plea was not knowing, intelligent, and
voluntary. Rather, the record here demonstrates that Hailes was induced to enter a
plea as a result of the circuit court’s denial of his motion to suppress and the strength
of the State’s case, instead of induced by any “affirmative misinformation” provided
to him about the penalty enhancers.

¶43 After the circuit court denied Hailes’ motion to suppress, the court
asked, “[H]ow would you like the matter calendared?” After taking a moment to

11
The court phrased the issue as “whether, under the totality of the circumstances, the
defendant has the right as a matter of law to withdraw his no-contest plea on the ground that it was
not entered knowingly, intelligently, and voluntarily.” State v. Dillard, 2014 WI 123, ¶3, 358
Wis. 2d 543, 859 N.W.2d 44. The inaccurate information involved in the case was that the State,
the circuit court, and Dillard’s trial counsel mistakenly advised him that he was facing a mandatory
sentence of life in prison without the possibility of extended supervision for his charge. Id.

20
No. 2021AP1339-CR

talk with Hailes, trial counsel requested to have the matter set for plea and
sentencing and indicated that he would like to obtain details of the State’s offer.

¶44 Then, at a subsequent hearing, the circuit court confirmed the State’s
final offer, and Hailes’ knowledge of that offer. At that time, Hailes stated that he
was rejecting the State’s offer. The court then turned to setting the matter for trial,
and asked the State how many days it would need. The State described its evidence
as follows:

There are really two different scenes at issue here, two
apartments that the defendant was alleged to be in control of.
The defendant also made a very complete statement that the
State will probably be playing in most of its entirety. There’s
obviously the crime lab testimony. There’s fingerprint
testimony. I think that it’s more than a three-day trial likely.

Hailes then interrupted saying, “I’d like to address something to the court.” After
Hailes spoke with trial counsel, trial counsel relayed, “I think what he’s saying is he
does want to resolve it.” The State then agreed to reopen its offer and continue
discussions, and the circuit court set the matter over for another hearing. Hailes
then said, “I will appreciate if we can resolve this matter before a trial issue. … I
would love to take the—take a plea offer and plead guilty, but I’m just not willing
to accept the offer that the State is offering at this point.” Hailes continued, “But I
would—I would recommend that I would plead guilty, and I don’t know if—if I
don’t accept the State’s offer, do I have to—am I forced to go to trial if I doesn’t—
if I don’t accept the State’s offer?”

¶45 Accordingly, the record shows that Hailes was not in any way
motivated by the application of the penalty enhancers when he decided to plead
guilty. Rather, Hailes was motivated to plead guilty first, by the denial of his motion
to suppress and second, by the evidence the State described it would present at his

21
No. 2021AP1339-CR

trial. Thus, we conclude that Hailes is not entitled to plea withdrawal on the grounds
that his plea was not knowing, intelligent, and voluntary as a result of any
“affirmative misinformation” about the application of the two penalty enhancers to
his drug charges. See Dawson, 276 Wis. 2d 418, ¶10 (allowing plea withdrawal
when the defendant “relied on … a possibility that did not, in fact, exist” when
deciding to enter a plea (emphasis added)). We conclude that Hailes has not
presented a persuasive account of why, absent the misinformation he received about
the two penalty enhancers, he would not have entered guilty pleas, and why he
would have gone to trial.

¶46 As previously stated, Hailes also seeks plea withdrawal on the
grounds that he received ineffective assistance of counsel. Another way “to
demonstrate manifest injustice [for plea withdrawal] is to establish that the
defendant received ineffective assistance of counsel.” Dillard, 358 Wis. 2d 543,
¶84. A defendant must show two elements to establish that his or her counsel’s
assistance was constitutionally ineffective: (1) counsel’s performance was
deficient; and (2) the deficient performance resulted in prejudice to the defense.
State v. Balliette, 2011 WI 79, ¶21, 336 Wis. 2d 358, 805 N.W.2d 334. In the
context of an argument for plea withdrawal, the prejudice prong “focuses on
whether counsel’s constitutionally ineffective performance affected the outcome of
the plea process.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). “[T]o satisfy the
‘prejudice’ requirement, the defendant must show that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Id.

¶47 “An ineffective assistance of counsel claim presents a mixed question
of fact and law.” State v. Pico, 2018 WI 66, ¶13, 382 Wis. 2d 273, 914 N.W.2d 95.
“We will not reverse the circuit court’s findings of fact unless they are clearly

22
No. 2021AP1339-CR

erroneous.” Id. “We independently review, as a matter of law, whether those facts
demonstrate ineffective assistance of counsel.” Id.

¶48 In addressing Hailes’ claim of plea withdrawal based on ineffective
assistance of counsel, we conclude that trial counsel’s performance was not
deficient, nor was Hailes prejudiced by any presumed deficient performance.

¶49 As to trial counsel’s performance, we do not consider trial counsel’s
performance deficient for any failure to raise a novel legal issue. See State v.
Lemberger, 2017 WI 39, ¶18, 374 Wis. 2d 617, 893 N.W.2d 232. At the time of
the proceedings in this case, under the holding in Maxey, which had not been
reversed, both penalty enhancers could apply to Hailes’ case, and there was no case
law interpreting WIS. STAT. § 973.01(2)(c), as we have done in this decision.12 The
application of both penalty enhancers to Hailes was, therefore, a novel issue, and
we do not consider trial counsel’s performance deficient for failing to raise this
issue.

¶50 As to prejudice, the record clearly demonstrates, as discussed
previously, that Hailes was motivated to plead guilty, not by anything related to the
penalty enhancers, but by the circuit court’s denial of his motion to suppress and the
strength of the State’s case. Moreover, in his postconviction motion and on appeal
Hailes does not allege, let alone show, why, absent the misinformation he received
about the two penalty enhancers, he would not have entered guilty pleas, and why
he would have gone to trial.

12
We also note the fact that the circuit court relied on the holding in State v. Maxey, 2003
WI App 94, 264 Wis. 2d 878, 663 N.W.2d 811, when it denied Hailes’ motion and found that both
penalty enhancers were properly charged in this case, supports our conclusion that the issue was
novel at the time Hailes entered his pleas.

23
No. 2021AP1339-CR

¶51 Under the original charges and assuming the application of only one
penalty enhancer, Hailes faced a maximum period of imprisonment of 151 years
and 6 months for the nine original charges. See WIS. STAT. §§ 939.50(3)(c), (d),
(g), (h), (i), 939.62(1)(b)-(c) (2013-14). Under the plea agreement, four charges
were dismissed outright, and the maximum period of imprisonment, still assuming
the application of only one penalty enhancer, was reduced by a period of 32 years
and 6 months to a total of 119 years for the charges to which Hailes pled guilty. See
WIS. STAT. §§ 939.50(3)(c), (d), (g), 939.62(1)(b)-(c) (2013-14). Applying both
penalty enhancers to the charges to which Hailes pled guilty, Hailes faced a
maximum term of imprisonment of 135 years, which amounts to a difference of 16
years. See WIS. STAT. §§ 939.50(3)(c), (d), (g), 939.62(1)(b)-(c), 961.48(1)(a), (b)
(2013-14). Given the possible maximum terms of imprisonment Hailes faced,
Hailes fails to explain why he would not have accepted the State’s offer and instead
proceeded to trial, if he knew that both penalty enhancers could not apply to his
case.

¶52 Hailes has, therefore, also failed to demonstrate “that there is a
reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.” See Lockhart, 474 U.S. at 59.

¶53 Consequently, we reject Hailes’ argument for plea withdrawal based
on his argument that he received ineffective assistance of counsel, and we conclude
that Hailes is not entitled to plea withdrawal for this reason.

C. Sentence Modification

¶54 Hailes alternatively argues that he is entitled to sentence modification
based on the existence of a new factor. However, we conclude that Hailes fails to
state a claim for sentence modification.

24
No. 2021AP1339-CR

¶55 “Whether a fact or set of facts presented by the defendant constitutes
a ‘new factor’ is a question of law,” which we review independently. State v.
Harbor, 2011 WI 28, ¶33, 333 Wis. 2d 53, 797 N.W.2d 828. However, “whether
that new factor justifies sentence modification is committed to the discretion of the
circuit court, and we review such decisions for erroneous exercise of discretion.”
Id.

¶56 A new factor is defined as:

a fact or set of facts highly relevant to the imposition of
sentence, but not known to the trial judge at the time of
original sentencing, either because it was not then in
existence or because, even though it was then in existence, it
was unknowingly overlooked by all of the parties.

Id., ¶40 (citation omitted). “The defendant has the burden to demonstrate by clear
and convincing evidence the existence of a new factor.” Id., ¶36.

¶57 In short, we conclude that Hailes fails to demonstrate that the fact that
he pled guilty to the drug charges with both penalty enhancers was “highly relevant
to the imposition of sentence.” See id., ¶40. Hailes points to nothing in the
sentencing transcript to indicate that dismissal of one of the two penalty enhancers
would have been highly relevant to the circuit court’s sentence, despite bearing the
burden of demonstrating “by clear and convincing evidence” that a new factor
exists. See id., ¶36 (emphasis added). Indeed, as evident from the sentencing
hearing, the circuit court’s primary concern was the protection of the public from
Hailes’ “very high-end dealing.” At the sentencing hearing, the circuit court stated,
“So when we talk about the seriousness of the offense, sir, it doesn’t get more
serious than the type of behavior that you were engaging in and the need to protect
the community.” Moreover, the circuit court never mentioned the application of
either penalty enhancer at the time of sentencing, and importantly, the sentence

25
No. 2021AP1339-CR

imposed did not even include an enhanced term of imprisonment.13 Consequently,
we conclude that Hailes is not entitled to sentence modification.

D. Resentencing

¶58 Hailes additionally makes the alternative argument that he is entitled
to resentencing. In this regard, Hailes argues that he was sentenced using inaccurate
information when the circuit court sentenced him using both penalty enhancers. We
conclude that Hailes has failed to present a claim for resentencing based on
inaccurate information.

¶59 “A defendant has a constitutionally protected due process right to be
sentenced upon accurate information.” State v. Tiepelman, 2006 WI 66, ¶9, 291
Wis. 2d 179, 717 N.W.2d 1. We independently review a defendant’s claim that he
has been sentenced on inaccurate information. Id.

¶60 “A defendant who requests resentencing due to the circuit court’s use
of inaccurate information at the sentencing hearing ‘must show both that the
information was inaccurate and that the court actually relied on the inaccurate
information at sentencing.’” Id., ¶26 (citation omitted). Actual reliance generally
requires that the sentencing court give “explicit attention” or “specific
consideration” to the inaccurate information and that the inaccurate information

13
As previously noted, Hailes was sentenced to twenty-three years of imprisonment,
composed of fourteen years of initial confinement and nine years of extended supervision. Hailes
faced a maximum term of imprisonment of ninety-five years on the charges to which he pled guilty,
without the penalty enhancers. See WIS. STAT. §§ 941.29(2)(a), 961.41(1m)(d)3.,
961.41(1m)(cm)4., 961.41(1m)(cm)1g., 939.50(3)(c), (d), (g) (2013-14). As it applies to initial
confinement alone, Hailes faced a maximum term of initial confinement of fifty-five years, without
the penalty enhancers. See WIS. STAT. § 973.01(2)(b)3., 4., 7. (2013-14).

26
No. 2021AP1339-CR

“formed part of the basis for the sentence.” State v. Travis, 2013 WI 38, ¶28, 347
Wis. 2d 142, 832 N.W.2d 491 (citation omitted).

¶61 As noted, in this case, Hailes fails to point to anything in the record
indicating that the circuit court actually relied on the penalty enhancers at the time
of sentencing. See id., ¶32 (discussing actual reliance and describing at least four
references by the circuit court to the inaccurate penalty at the time of sentencing).
As stated above, the circuit court never mentioned the penalty enhancers at the time
of sentencing, and a review of the sentencing hearing indicates that the circuit court
was focused on protecting the community at the time of sentencing. Moreover, the
sentence that the circuit court imposed did not include an enhanced term of
imprisonment. As previously noted, Hailes was sentenced to twenty-three years of
imprisonment, composed of fourteen years of initial confinement and nine years of
extended supervision. At sentencing, he faced a maximum term of imprisonment
of ninety-five years on the charges to which he pled guilty, without any of the
penalty enhancers. As it applies to initial confinement alone, Hailes faced a
maximum term of initial confinement of fifty-five years, without any of the penalty
enhancers. The fact that the circuit court sentenced him to only fourteen years of
initial confinement shows that the court did not actually rely on the penalty
enhancers at the time of sentencing and further shows that the court would have
imposed the same sentence absent the error regarding the penalty enhancers.
Accordingly, we conclude that Hailes’ claim for resentencing fails.14

14
As a result of our conclusion, we do not address Hailes’ argument that his trial counsel
was ineffective for failing to object the penalty enhancers at the time of sentencing or the State’s
argument regarding forfeiture. See Blalock, 150 Wis. 2d at 703 (“[C]ases should be decided on the
narrowest possible ground.”).

27
No. 2021AP1339-CR

CONCLUSION

¶62 Overall, we conclude that Hailes is not entitled to the relief he seeks,
and we affirm. We conclude that the circuit court properly denied Hailes’ motion
to suppress. In this regard, we conclude that the affidavits attached to the search
warrants established probable cause to search the two apartments located at 30th
Street. We also conclude that, under the plain language of WIS. STAT.
§ 973.01(2)(c), only one of the penalty enhancers found in WIS. STAT. § 939.62(1)
and WIS. STAT. § 961.48 can be applied to a defendant at a time. However, we
nevertheless conclude that Hailes is not entitled to plea withdrawal, sentence
modification, or resentencing in his case. Accordingly, we affirm.

By the Court.—Judgment and orders affirmed.

28