State v. Marvin D. Greer

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.
December 23, 2020
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. 2019AP265-CR Cir. Ct. No. 2015CF1190

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MARVIN D. GREER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Rock
County: MICHAEL A. HAAKENSON, Judge. Affirmed.

Before Fitzpatrick, P.J., Blanchard, and Kloppenburg, 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).

¶1 PER CURIAM. Marvin Greer was convicted in the Rock County
Circuit Court, following a jury trial, of two counts of manufacturing and/or
No. 2019AP265-CR

delivering a controlled substance, second or subsequent offense, as a repeater. See
WIS. STAT. §§ 941.61(1), 939.62(1)(b), and 961.48(1)(b) (2013-14).1 Greer filed a
postconviction motion alleging that his trial counsel was ineffective. The circuit
court denied Greer’s postconviction motion without an evidentiary hearing, and
Greer appeals. We agree with the circuit court that Greer’s motion was
insufficient to entitle him to an evidentiary hearing on his ineffective assistance of
counsel claims. We therefore affirm the judgment of conviction and the order of
the circuit court.2

BACKGROUND

¶2 In Rock County case no. 2015CF1190, Greer was charged with two
counts of manufacturing and/or delivering less than one gram of cocaine, second
or subsequent offense, as a repeater, and one count of manufacturing and/or
delivering less than three grams of heroin, second or subsequent offense. The
complaint in case no. 2015CF1190 alleged that a confidential informant purchased
cocaine or heroin from Greer on three separate occasions. Case no. 2015CF1190
is the subject of this appeal.

¶3 For purposes of trial, case no. 2015CF1190 was consolidated with
Rock County case no. 2016CF1473.3

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
2
Greer’s appellate counsel filed Greer’s reply brief over thirty days later than the
deadline set by WIS. STAT. RULE 809.19(4). Counsel did not file a motion requesting an
extension of time to file the reply brief. See WIS. STAT. RULE 809.82(2)(a). The State has not
asked this court to refuse to accept Greer’s reply brief and, although untimely, we accept the reply
brief.
3
Greer’s first trial on those consolidated charges ended in a mistrial.

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No. 2019AP265-CR

¶4 In case no. 2016CF1473, Greer was charged with three counts of
delivering cocaine to Ricki Coggins.

¶5 The jury found Greer not guilty of all charges in case
no. 2016CF1473. The jury found Greer guilty of two charges in case
no. 2015CF1190: one count of manufacturing and/or delivering less than one
gram of cocaine and one count of manufacturing and/or delivering less than three
grams of heroin. The jury found Greer not guilty of one count of manufacturing
and/or delivering less than one gram of cocaine charged in case no. 2015CF1190.

¶6 Greer filed a postconviction motion requesting a new trial on the
basis that his trial counsel was ineffective.4 Greer alleged in his postconviction
motion, and argues on appeal, that his trial counsel was ineffective for the
following reasons:

1. Trial counsel failed to challenge the determination that there was
probable cause to support Greer’s arrest on the charges in case
no. 2015CF1190.

2. Trial counsel failed to challenge the sufficiency of the charges in
case no. 2016CF1473.

4
On appeal, Greer asks this court to remand this matter to the circuit court for a new trial
on the two counts on which he was convicted based on the purported merits of his ineffective
assistance of counsel motion. However, whether a new trial based on alleged ineffective
assistance of counsel is warranted cannot be determined without an evidentiary hearing on
whether counsel’s performance was constitutionally defective. See State v. Balliette, 2011 WI
79, ¶18, 336 Wis. 2d 358, 805 N.W.2d 334. Accordingly, as will be discussed, the proper posture
of this appeal is whether the circuit court erred in determining that Greer’s postconviction motion
was insufficient to entitle him to an evidentiary hearing.

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No. 2019AP265-CR

3. Trial counsel failed to object at trial to testimony that referred to a
previous “revocation hearing.”

4. Regarding identification of Greer’s voice on a recording, trial
counsel failed to cross-examine a witness about testimony given by
that same witness at the mistrial.

5. A portion of trial counsel’s final argument concerning Greer’s
possible romantic interest in Ricki Coggins was “highly prejudicial”
to Greer.

The circuit court denied Greer’s postconviction motion without an evidentiary
hearing. Greer appeals.

¶7 We next set forth pertinent trial testimony.

Pertinent Trial Testimony.

Ricki Coggins

¶8 Ricki Coggins testified to the following. In February 2014, she was
sixteen years old and living with her mother, Deanna Sando. Between February
2014 and mid-November 2014, Greer sold Coggins cocaine “[t]wo, three times.”
Those alleged sales were the basis for the charges in case no. 2016CF1473.

¶9 On cross-examination, Coggins denied that she had “any romantic
interest” in Greer, and that she “wouldn’t know” if Sando had a romantic interest
in Greer. Coggins admitted that she was not able to turn over to police any of the
cocaine she purchased from Greer and that no one other than Greer witnessed her
purchasing cocaine from him.

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No. 2019AP265-CR

Deanna Sando

¶10 Deanna Sando testified to the following. Sando had been using
cocaine for approximately ten years. In October or November 2014, Coggins
introduced Sando to Greer for the purpose of “purchas[ing] … cocaine.” When
Sando met Greer, she learned that Greer had been selling cocaine to Coggins.

¶11 Approximately one month after meeting Greer, Sando spoke to
Officer Brian Miller during a traffic stop. Sando informed Miller that her
“daughter was purchasing powder cocaine from … Greer and asked if there was
anything [she] could do about it.” Sando subsequently became a confidential
informant and agreed to make “purchases from … Greer with the [City of] Beloit
Police Department.”

¶12 While acting as a confidential informant, Sando made three
controlled buys from Greer. For each controlled buy, Sando handed Greer money
that had been given to her by Officer Miller and, in exchange, Greer gave Sando
cocaine or heroin, which Sando turned over to Miller.

¶13 On cross-examination, Sando denied having “a romantic interest in
… Greer.”

Officer Brian Miller

¶14 Officer Miller testified to the following. Miller is an officer with the
City of Beloit Police Department.

¶15 In early November 2014, during a traffic stop, Officer Miller made
contact with Sando, and Sando informed Miller that “she had some information
regarding drug activity … in … Beloit.” Sando provided Miller with information

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No. 2019AP265-CR

on a man “called MG or MJ.” Miller conducted an investigation into the
information given to him by Sando and learned that “a possible subject by the
name of Marvin Greer … goes by MG.” A “booking photo” of Greer was shown
to Sando, who “positively identified MG as Marvin Greer.”

¶16 Sando informed police that “Greer was … selling narcotics to her
daughter,” and Sando agreed to act as an informant for law enforcement. Sando
was compensated with $20 for each controlled buy.

¶17 From November 2014 to March 2015, the “Drug and Gang Unit”
Officer Miller was a part of conducted three “controlled buy[s]” with Sando’s
assistance. Before each controlled buy, Sando was searched by police “for any
money or narcotics to make sure she ha[d] none,” and Sando was equipped with
two recording devices. For each controlled buy, in Officer Miller’s presence
Sando contacted Greer by phone to set up a time and place for the purchase of
illegal drugs. For each controlled buy, Sando was given money by Officer Miller
to make the purchase from Greer. Each time, while under police surveillance,
Sando went to a location to meet Greer. After each completed controlled buy,
Sando went to a predetermined location where she met with Officer Miller and
gave him the drugs that she had purchased with the money Officer Miller
provided. Officer Miller then tested the substance and determined that each tested
positive for cocaine or heroin.

¶18 An audio recording of each controlled buy was transcribed and
played for the jury at trial. Miller recognized the voices of Sando and Greer in
each recording.

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No. 2019AP265-CR

¶19 On cross-examination, Officer Miller denied having any information
that there was a romantic relationship between Sando and Greer and stated that
such a relationship was “never investigated.”

¶20 We will mention other material facts in our discussion, below.

DISCUSSION

¶21 As noted, the issue before this court is whether Greer is entitled to an
evidentiary hearing on his ineffective assistance of counsel claims. We begin our
analysis by setting forth governing principles and our standard of review in cases
in which a circuit court, without an evidentiary hearing, denies a defendant’s
postconviction motion for a new trial based on alleged ineffective assistance of
counsel.

I. Governing Principles and Standard of Review.

¶22 The Sixth and Fourteenth Amendments to the United States
Constitution guarantee to a criminal defendant the right to effective assistance of
counsel. State v. Balliette, 2011 WI 79, ¶21, 336 Wis. 2d 358, 805 N.W.2d 334.
To establish ineffective assistance, a defendant must demonstrate: (1) that
counsel’s performance was deficient; and (2) that the deficient performance was
prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove
deficient representation, the defendant must point to specific acts or omissions by
his or her attorney that are “outside the wide range of professionally competent
assistance.” Id. at 690. To demonstrate prejudice, the defendant must show that
“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. We

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No. 2019AP265-CR

need not address both prongs of the Strickland test if the defendant does not make
a sufficient showing on either one. See id. at 697.

¶23 A defendant is not entitled to an evidentiary hearing on his or her
postconviction claim of ineffective assistance of counsel as a matter of right. See
Balliette, 336 Wis. 2d 358, ¶18. To obtain an evidentiary hearing, the defendant
must allege sufficient facts that, if true, would entitle him or her to relief. Id. The
postconviction motion “must contain an historical basis setting forth material facts
that allows the reviewing court to meaningfully assess the defendant’s claims.”
State v. Love, 2005 WI 116, ¶27, 284 Wis. 2d 111, 700 N.W.2d 62. “[A]
postconviction motion will be sufficient if it alleges ... ‘the five “w’s” and one “h”;
that is, who, what, where, when, why, and how.’” Id. (quoting State v. Allen,
2004 WI 106, ¶23, 274 Wis. 2d 568, 682 N.W.2d 433).

¶24 If the motion alleges sufficient facts, the circuit court must hold an
evidentiary hearing. Allen, 274 Wis. 2d 568, ¶9. “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. Whether Greer’s postconviction motion alleges sufficient material facts that, if
true, would entitle him to an evidentiary hearing is a question of law that we
review de novo. Id.

¶25 We now address whether Greer’s postconviction motion alleging
ineffective assistance of counsel raises sufficient facts on any of his five claims to
entitle Greer to an evidentiary hearing. We address each of Greer’s claims in turn.

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No. 2019AP265-CR

II. Trial Counsel’s Failure to Challenge Greer’s Arrest.

¶26 Greer argues that his trial counsel was ineffective for failing to
challenge his arrest for the charges in case no. 2015CF1190 based upon a lack of
probable cause. Greer contends that such a motion would have been successful
and resulted in dismissal of those charges.

¶27 To be lawful, an arrest must be based on probable cause. See State
v. Secrist, 224 Wis. 2d 201, 212, 589 N.W.2d 387 (1999). “Probable cause [to
arrest] exists where the totality of the circumstances within the arresting officer’s
knowledge at the time of the arrest would lead a reasonable police officer to
believe that the defendant probably committed a crime.” State v. Koch, 175 Wis.
2d 684, 701, 499 N.W.2d 152 (1993).

¶28 At the preliminary hearing in case no. 2015CF1190, it appears from
the clerk’s notes that probable cause was contested and testimony was taken, after
which the court determined that there was probable cause to arrest Greer.

¶29 Greer, as the appellant, has the burden to ensure that the record on
appeal is complete. State v. Marks, 2010 WI App 172, ¶20, 330 Wis. 2d 693, 794
N.W.2d 547. “[W]hen an appellate record is incomplete in connection with an
issue raised by the appellant, we must assume that the missing material supports
the [circuit] court’s ruling.” Fiumefreddo v. McLean, 174 Wis. 2d 10, 27, 496
N.W.2d 226 (Ct. App. 1993). As pointed out by the State, Greer has not provided
this court with a transcript of the preliminary hearing. Greer does not dispute this
point. Without that transcript, we cannot review the evidence upon which the
circuit court’s probable cause determination was made, and we must assume that
the missing portions of the record support the court’s determination that officers
had probable cause to arrest Greer. See id.

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No. 2019AP265-CR

¶30 From that, we must conclude that a motion from Greer’s trial
counsel, beyond whatever arguments were made by Greer’s counsel at the
preliminary hearing, would have failed. See Allen, 274 Wis. 2d 568, ¶9
(explaining that a defendant is not entitled to an evidentiary hearing on his or her
ineffective assistance of counsel claim if the record conclusively demonstrates that
the defendant is not entitled to relief).5

¶31 Therefore, Greer has not shown that he is entitled to an evidentiary
hearing on this allegation of ineffective assistance of counsel.

III. Trial Counsel’s Failure to Challenge Charges Brought
Against Greer in Case No. 2016CF1473.

¶32 Greer argues that his trial counsel was ineffective for failing to
request dismissal of the three charges in case no. 2016CF1473, and that failure
prejudiced Greer to such an extent that it led to his convictions on two counts in
case no. 2015CF1190. We reject Greer’s argument.

¶33 To repeat, the case presently before us on appeal, case
no. 2015CF1190, was consolidated for trial with case no. 2016CF1473. In case
no. 2016CF1473, the State charged Greer with selling cocaine on three separate
occasions. The complaint in case no. 2016CF1473 did not allege when the drug

5
In his briefing in this court on this issue, Greer relies on an unpublished per curiam
opinion in violation of WIS. STAT. RULE 809.23(3)(a) and (b), to support his claim that his trial
counsel was ineffective. We disregard any argument relying on the unpublished per curiam
decision and admonish counsel not to continue this practice. We also caution counsel for the
State not to discuss unpublished per curiam opinions relied on by adverse counsel, as the State
did here, without noting the improper citation to that opinion.

10
No. 2019AP265-CR

sales took place except to state that the sales took place between February and
November 2014.

¶34 Greer contends that trial counsel was deficient in his performance
because counsel did not move for a directed verdict on all three counts brought in
case no. 2016CF1473 based on alleged deficiencies in the complaint as to “date
and time.” Greer asserts that he was prejudiced by this purported error of trial
counsel because the charges in case nos. 2016CF1473 and 2015CF1190 were
joined for trial, and the jury “likely found that Greer was in fact, a drug dealer,
simply based on the numerous accusations against him, and, as a result, this sort of
evidence [about the charges in case no. 2016CF1473] became propensity
evidence.”

¶35 We begin our analysis by noting that, in his postconviction motion,
Greer argued that trial counsel was deficient for failing to object to the joinder of
case nos. 2015CF1190 and 2016CF1473. Greer does not argue on appeal that
joinder was improper. The State devotes a significant part of its brief on this issue
to the question of joinder. But, we need not address whether joinder of the cases
was proper because Greer has abandoned any argument to the contrary. See A.O.
Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588 N.W.2d 285 (Ct.
App.1998) (“[A]n issue raised in the [circuit] court, but not raised on appeal, is
deemed abandoned.”). We now discuss why the argument Greer does make fails.

¶36 A fatal deficit in Greer’s argument is that the criminal complaint
filed in case no. 2016CF1473 is not in the record in this appeal. Although Greer
gives a purported cite to the record for that complaint, the complaint from that
case is not at that portion of the record, or anywhere else that we can determine.
See Grothe v. Valley Coatings, Inc., 2000 WI App 240, ¶6, 239 Wis. 2d 406, 620

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No. 2019AP265-CR

N.W.2d 463 (stating an appellate court will not search the record for facts to
support a party’s arguments). As a result, Greer has not made a sufficient factual
record to support his contention that there was a defect in the complaint in case
no. 2016CF1473 that would have caused that complaint to be dismissed if the
proper motion for a directed verdict was made by Greer’s trial counsel.

¶37 We now turn to a separate challenge based on the failure to move for
a directed verdict in case no. 2016CF1473, and our focus is on the prejudice prong
of the ineffective assistance of counsel analysis. To establish prejudice, Greer
must show a reasonable probability that, but for counsel’s unprofessional errors,
the result of the trial would have been different. Strickland, 466 U.S. at 694. We
conclude that the record conclusively demonstrates that Greer was not prejudiced
by counsel’s purported failure to move for a directed verdict regarding the charges
in case no. 2016CF1473.

¶38 Greer alleges that he was prejudiced by counsel’s failure to
challenge the sufficiency of the complaint in case no. 2016CF1473 because
counsel’s failure to do so allowed the jury to hear evidence that Greer delivered
drugs on three separate occasions to Coggins as alleged in that case. Greer
specifies on appeal the one point of the proceedings that trial counsel purportedly
failed to act. Greer contends that trial counsel’s error was that he “did not
specifically move for a directed verdict on all three counts in 16CF1473 by
claiming that the offenses were not properly alleged as to date and time.”

¶39 WISCONSIN STAT. § 805.14(4) governs a motion for a directed
verdict and states:

MOTION AT CLOSE OF ALL EVIDENCE. In trials to the
jury, at the close of all evidence, any party may challenge
the sufficiency of the evidence as a matter of law by

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No. 2019AP265-CR

moving for directed verdict or dismissal or by moving the
court to find as a matter of law upon any claim or defense
or upon any element or ground thereof.

(Emphasis added.) As demonstrated by that language, a motion for a “directed
verdict” is made at the close of all evidence. See State v. Magett, 2014 WI 67,
¶63, 355 Wis. 2d 617, 850 N.W.2d 42 (“[A] directed verdict under subsec. (4) is to
be entered only ‘at the close of all evidence.’” (quoting § 805.14(4)). From this it
follows that, even if trial counsel had made such a motion for a directed verdict as
Greer asserts he should have done, the jury would have still heard the testimony
that alleged that Greer sold illegal drugs to Coggins on three different dates.
Therefore, a motion for a directed verdict would not have alleviated any purported
prejudice regarding the jury’s view of the evidence on the charges brought in case
no. 2015CF1190.

¶40 One other facet of the case confirms that the circuit court was not
obligated to grant an evidentiary hearing on this issue. The jurors were instructed
that they must consider each count against Greer separately. As part of his
argument on this claim, Greer asserts that the jury improperly considered evidence
regarding charges in case no. 2016CF1473 to convict Greer of two counts in case
no. 2015CF1190. But, the jury was instructed not to do what Greer contends the
jury did. We reject Greer’s argument because he gives us no reason to believe that
the jury did not follow the instructions of the circuit court to consider each count
individually, and the evidence relevant to that count alone. See Wosinski v.
Advance Cast Stone Co., 2017 WI App 51, ¶94, 377 Wis. 2d 596, 901 N.W.2d
797 (“[C]ourts are ‘required to presume the jury obeyed the instructions as
given.’” (quoting State v. Abbott Labs., 2012 WI 62, ¶103, 341 Wis. 2d 510, 816
N.W.2d 145)).

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¶41 Accordingly, the circuit court did not err in denying this portion of
Greer’s postconviction motion without an evidentiary hearing.

IV. Trial Counsel’s Failure to Object to Testimony.

¶42 Greer argues that his trial counsel was ineffective for failing to
object to testimony of Officer Miller regarding a revocation hearing. We begin by
setting forth additional pertinent facts.

¶43 On direct examination, Officer Miller testified that, in his original
report on the second controlled buy, he did not document that he recognized and
identified Greer at the time of that controlled buy because he forgot to made that
documentation, which was “a huge mistake.” Officer Miller also told the jury that,
after he testified at a separate proceeding that he recognized Greer at the second
controlled buy, Miller wrote, at the prosecutor’s request, a supplement to his
report documenting that Miller recognized Greer at the second controlled buy. On
cross-examination, Greer’s trial counsel questioned Miller as follows:

[Trial counsel]: Your report says you received a
call from the prosecutor; isn’t that right?

[Officer Miller]: Yes.

[Trial counsel]: And he asked you … if anybody
could identify Marvin Greer; isn’t that right?

[Officer Miller]: Yes.

[Trial counsel]: And he did so because?

….

[Officer Miller]: Because I was actually at a
revocation hearing, and at that time they asked … if
anybody had identified him in the second purchase, and I
said, yeah, I actually did, and they looked at the report and
said we didn’t record it. And I go, oh, geez, that’s my fault.
So when [the prosecutor] had called me and asked me

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No. 2019AP265-CR

about it, I said, well, yeah, that was my mistake, I should
have put it in there and I didn’t.

[Trial counsel]: And you filed … a supplement
report …?

[Officer Miller]: … [Y]eah.

On redirect, the prosecutor questioned Miller as follows:

[Prosecutor]: How long after you wrote [the
original] report … did [Miller’s failure to document that he
recognized Greer at the second controlled buy] come up
again or did it come up again?

[Officer Miller]: It didn’t come up again. I went to
the revocation hearing, and when we were going through it,
it was brought up, and I said that I had identified him
[because] I saw him walking down to [Sando’s] house.

¶44 Greer alleges that his trial counsel was ineffective in not objecting to
Officer Miller’s references to the “revocation hearing” because, according to
Greer, those were references to Greer’s prior criminal history, and such references
were “unfairly prejudicial” to Greer.

¶45 We reject Greer’s argument for two reasons. First, the testimony of
Officer Miller that Greer complains of did not establish that Greer had a criminal
history as Greer argues. The references and the testimony were to a “revocation
hearing.” No explanation was given to the jury about what that proceeding was or
that the revocation hearing was based on prior crimes committed by Greer. We
agree with the circuit court’s conclusion that trial counsel’s failure to object to
those answers from Officer Miller was not prejudicial to Greer’s defense. At trial
there was a passing reference to a type of hearing that was not explained to the
jury. Further, an objection from trial counsel would have brought the “revocation
hearing” to the jury’s attention possibly to Greer’s detriment.

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No. 2019AP265-CR

¶46 Second, Greer’s allegation of prejudice is simply a bare, conclusory
allegation. Greer fails to explain how or why, but for counsel’s failure to object to
Officer Miller’s testimony, the result of the proceeding would have been different.
See Strickland, 466 U.S. at 694. Greer’s conclusory allegations are not sufficient
to entitle him to an evidentiary hearing on this issue. See State v. Sulla, 2016 WI
46, ¶23, 369 Wis. 2d 225, 880 N.W.2d 659 (stating that, if a defendant’s motion
asserting ineffective assistance of counsel contains only conclusory allegations,
the defendant is not entitled to an evidentiary hearing).

¶47 Therefore, Greer is not entitled to an evidentiary hearing on this
claim of ineffective assistance of counsel.

V. Trial Counsel’s Cross-Examination of Officer Miller.

¶48 Greer argues that his trial counsel was ineffective for not cross-
examining Officer Miller on a specific subject. More particularly, during Officer
Miller’s testimony at the mistrial, he did not explicitly testify that he recognized
Greer’s voice on any of the recordings of the controlled buys. At the second trial,
Officer Miller testified that he recognized Greer’s voice on each recording of the
controlled buys. From that, Greer asserts only that: “This should have been an
area of cross-examination by [trial counsel] for the purpose of impeachment.”

¶49 Once again, Greer’s bare, conclusory allegation is not sufficient to
entitle him to an evidentiary hearing. See id. Greer does not explain why, but for
trial counsel’s failure to cross-examine Officer Miller on that point, the result of
the trial would have been different. See Strickland, 466 U.S. at 694.

¶50 Accordingly, this allegation of ineffective assistance of counsel does
not entitle Greer to an evidentiary hearing.

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No. 2019AP265-CR

VI. Trial Counsel’s Defense Theory in Closing Argument.

¶51 Finally, Greer argues that his trial counsel was ineffective because
the defense theory articulated in closing argument was “unreasonable” and “highly
prejudicial” to Greer. Specifically, during trial counsel’s closing argument,
counsel argued that Sando “set Mr. Greer up” for the following reason:

What the evidence looks like to me is that Ricki
Coggins had a romantic relationship with Mr. Greer. The
mother, Ms. Sando, wasn’t comfortable with that because
she wanted to have a romantic relationship with Mr. Greer
and -- and so she would go to any length to -- to set
Mr. Greer up.

We now explain why we conclude that counsel’s argument was not deficient
performance. See id. at 697.

¶52 Greer contends in part that the complained-of theory of defense was
“not grounded in any evidence.” However, as pointed out by the State, Greer’s
only witness, an investigator with the public defender’s office, testified that Sando
had informed him that “she knew [Greer] and she was upset with [Greer] because
he had tried to date her daughter.” That testimony substantiates, at least in part,
that the argument was grounded in evidence, contrary to Greer’s assertion.

¶53 Greer further contends that the challenged theory in the closing
argument “equate[d] [Greer] with being a pedophile” because Coggins was sixteen
or seventeen years old at the relevant times. This is an exaggeration of how a
reasonable jury would have processed this argument. Further, the challenged
argument was not the sole focus of counsel’s closing argument. He made four
other arguments to the jury. Trial counsel argued that Sando was paid $20 for
each time she performed a controlled buy with Greer, so she could not be trusted
because her “testimony was bought and paid for.” Trial counsel also criticized

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No. 2019AP265-CR

Officer Miller’s investigation of Greer and argued that there was no DNA
evidence related to Greer found on the illegal drugs allegedly sold to Sando by
Greer in the controlled buys. Further, trial counsel pointed out that there were no
illegal drugs found on Greer when he was arrested. Trial counsel also argued that
the jury should “tell the government’s attorney that when you have serious
charges,” there should be evidence that is beyond a reasonable doubt “[a]nd that
doesn’t exist anywhere here in this case.”

¶54 A defendant “is not entitled to the ideal, perfect defense or the best
defense but only to one which under all the facts gives him reasonably effective
representation.” State v. Harper, 57 Wis. 2d 543, 557, 205 N.W.2d 1 (1973). We
agree with the circuit court that trial counsel’s defenses as articulated in closing
argument were consistent with the facts presented at trial and were reasonable
arguments in light of the strength of the State’s case and the recordings of the
controlled buys. In the context of the entire closing argument of trial counsel, the
one complained-of argument does not constitute deficient performance.

¶55 We could end our discussion of this issue with those points. We
further point out that Greer fails to establish that trial counsel’s defense theory
concerning the “love triangle” caused prejudice to Greer. Greer does not
enunciate why this one argument caused the result of the trial to be different than
it would have been without the argument. See Strickland, 466 U.S. at 694.

¶56 Greer is, therefore, not entitled to an evidentiary hearing on this
allegation of ineffective assistance of counsel.

¶57 In sum, the circuit court did not err in denying Greer’s
postconviction motion alleging ineffective assistance of counsel without holding
an evidentiary hearing.

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No. 2019AP265-CR

CONCLUSION

¶58 For the foregoing reasons, the judgment and order of the circuit
court are affirmed.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

19