State v. Phillip A. Byrd

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.
March 23, 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 Nos.
2021AP1512 Cir. Ct. No. 2014CF618

2022AP158
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

PHILLIP A. BYRD,

DEFENDANT-APPELLANT.

APPEALS from orders of the circuit court for Dane County:
JOHN W. MARKSON and SUSAN M. CRAWFORD, Judges. Affirmed.

Before Kloppenburg, Fitzpatrick, and Graham, 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).
Nos. 2021AP1512
2022AP158

¶1 PER CURIAM. Phillip Byrd was convicted, upon his guilty plea, of
second-degree intentional homicide. The circuit court, in separate decisions, denied
without a hearing Byrd’s initial motion and his “amended supplemental” motion for
postconviction relief. The court denied Byrd’s initial motion as procedurally barred
or, in the alternative, because the allegations in the motion were conclusory or the
record conclusively showed that Byrd was not entitled to relief. The court denied
the “amended supplemental” motion as procedurally barred or, in the alternative, as
an “improper motion for reconsideration.” Byrd separately appealed each of the
court’s decisions and we consolidated the appeals.1 Byrd argues, and the State
agrees, that Byrd’s initial motion is not procedurally barred. We accept the State’s
concession that Byrd’s initial motion is not procedurally barred. However, as we
explain, we reject Byrd’s remaining arguments as to why he is entitled to relief
under either of his motions and, therefore, we affirm.

BACKGROUND

¶2 In 2014, the State charged Byrd with first-degree intentional
homicide, domestic abuse, with use of a dangerous weapon. The criminal complaint
alleged that in February 2014 Byrd fatally shot A.B. during an altercation.2 The

1
These appeals were consolidated for briefing and disposition by an order dated
February18, 2022.

The Honorable John W. Markson presided over the plea and sentencing proceedings, and
the Honorable Susan M. Crawford presided over the postconviction proceedings. We refer to Judge
Markson as the “trial court” and to Judge Crawford as the “circuit court.”

Byrd was represented by counsel during the plea and sentencing proceedings. He
proceeded pro se when he filed his motions for postconviction relief and he proceeds pro se on
appeal.
2
We refer to the victim by a set of initials different from her own, consistent with the
policy underlying WIS. STAT. § 809.86(4) (2021-22).

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

2
Nos. 2021AP1512
2022AP158

complaint further alleged that Byrd was arrested the day after the incident on
warrants unrelated to the incident and that, in the days after Byrd was arrested, law
enforcement twice interviewed Byrd at his request. During those interviews,
according to the complaint, Byrd described what happened during the incident and
made inculpatory statements. In July 2014, Byrd pleaded guilty to a reduced charge
of second-degree intentional homicide. In January 2015, Byrd was sentenced to
twenty years of initial confinement and eight years of extended supervision.

¶3 In 2021, Byrd filed a motion for postconviction relief and, after the
circuit court denied that motion without an evidentiary hearing, he filed an
“amended supplemental” motion for postconviction relief; in both motions Byrd
sought the withdrawal of his plea under WIS. STAT. § 974.06. The circuit court also
denied the “amended supplemental” motion without an evidentiary hearing. As
stated, we consolidated Byrd’s appeals of both circuit court decisions.

DISCUSSION

I. Byrd’s Initial Motion for Postconviction Relief

¶4 A defendant may withdraw a guilty or no contest 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). In his initial motion
seeking plea withdrawal, Byrd asserted as grounds for showing a manifest injustice
that: (1) the State breached the plea agreement; (2) his plea was not entered
knowingly, voluntarily, and intelligently because the trial court did not establish that
Byrd understood the nature of the crime or the constitutional rights he was waiving
and his “mental condition and medication interfered with [his] abilities”; and

3
Nos. 2021AP1512
2022AP158

(3) trial counsel was ineffective in numerous respects.3 We first state the standard
of review of the circuit court’s decision denying Byrd’s motion. We next address
each assertion in turn.

¶5 The standard of review of a circuit court’s decision denying a motion
for postconviction relief without a hearing is well established. A postconviction
motion must allege sufficient material facts that, if true, would entitle the defendant
to relief. State v. Ruffin, 2022 WI 34, ¶27, 401 Wis. 2d 619, 974 N.W.2d 432. A
motion does not entitle a defendant to relief if it contains “only conclusory
allegations, or if the record conclusively demonstrates that the defendant is not
entitled to relief.” Id., ¶28. Whether a motion suffices to entitle a defendant to
relief is a question of law that this court reviews de novo. State v. Sulla, 2016 WI
46, ¶23, 369 Wis. 2d 225, 880 N.W.2d 659; State v. Allen, 2004 WI 106, ¶9, 274
Wis. 2d 568, 682 N.W.2d 433.

3
Byrd also may have been seeking new sentencing in his initial motion, based on his
assertion that the trial court did not sufficiently consider his mental and physical health at
sentencing. If so, his argument fails. The transcript of the sentencing hearing shows that the court
did consider Byrd’s mental health and need for treatment. Byrd essentially argues that the court
should have weighed those considerations differently, but we do not disturb on appeal the court’s
weighing of the various sentencing factors. See State v. Ziegler, 2006 WI App 49, ¶23, 289 Wis. 2d
594, 712 N.W.2d 76 (the weight to be given each sentencing factor is committed to the sentencing
court’s discretion).

As the circuit court noted, Byrd listed many claims and “subclaims for relief” in the
preprinted form and his supporting memorandum, but most of those claims and subclaims were
conclusory statements that were not supported by any statements of fact or were waived by Byrd’s
guilty plea. See WIS. STAT. § 971.31(10); State v. Hampton, 2010 WI App 169, ¶23, 330 Wis. 2d
531, 793 N.W.2d 901 (stating that § 971.31(10) provides a narrow exception to the rule that a guilty
plea waives all nonjurisdictional defects and defenses by allowing appellate review of the denial of
a motion to suppress). We address on appeal the claims and subclaims that Byrd factually
supported in the preprinted form and his supporting memorandum, as well as all of his arguments,
as we can discern them, on appeal. See State v. Ruffin, 2022 WI 34, ¶27, 401 Wis. 2d 619, 974
N.W.2d 432 (the issue on appeal is whether the motion sufficed to entitle the defendant to relief).

4
Nos. 2021AP1512
2022AP158

¶6 If the motion suffices to entitle the defendant to relief, then the circuit
court is required to grant a hearing on the motion. State v. Jackson, 2023 WI 3, ¶8,
405 Wis. 2d 458, 983 N.W.2d 608. If the motion does not suffice to entitle the
defendant to relief, then it is within the court’s discretion as to whether to hold a
hearing. Id.; Allen, 274 Wis. 2d 568, ¶9. Here, the circuit court determined that
Byrd’s postconviction motions did not entitle him to relief and denied his motions
without a hearing. Byrd’s appeal raises only the legal question of whether a hearing
was required because his motions sufficed to entitle him to a hearing. Accordingly,
the State’s reference to the legal principle that an appellate court may search the
record to sustain the circuit court’s exercise of discretion is inapt.4

A. Breach of Plea Agreement

¶7 The first “manifest injustice” ground for Byrd’s plea withdrawal
motion was his allegation, which he reiterates on appeal, that the State breached the
plea agreement “by implying to the court that [Byrd] deserve[d] more punishment
than was bargained for.” In his motion, Byrd pointed to the prosecutor’s remarks at

4
Byrd responds to the State’s presenting the circuit court’s decision as an exercise of
discretion by arguing in reply that appellate review “is impossible” because the circuit court did
not properly exercise its discretion when it did not consider the memorandum of law that he filed
in support of the initial motion and considered only the short preprinted form identifying his claims,
which Byrd filed along with the memorandum. Regardless of whether the circuit court considered
Byrd’s supporting memorandum, appellate review is possible because, as stated, whether Byrd’s
motion suffices to entitle him to a hearing is a legal question that we review independently of the
circuit court. See State v. Sulla, 2016 WI 46, ¶23, 369 Wis. 2d 225, 880 N.W.2d 659 (whether a
motion suffices to entitle a defendant to relief is a question of law that this court reviews de novo).
Our review of the sufficiency of Byrd’s motion includes the memorandum that Byrd filed along
with the preprinted form.

5
Nos. 2021AP1512
2022AP158

sentencing acknowledging that Byrd pleaded to “imperfect self-defense”5 but then
characterizing Byrd’s belief that he was defending himself as not only unreasonable
but “totally misplaced … overkill … unnecessary … more consistent with straight
up execution.”

¶8 “Whether the State breached a plea agreement is a mixed question of
fact and law.” State v. Naydihor, 2004 WI 43, ¶11, 270 Wis. 2d 585, 678 N.W.2d
220. The terms of the plea agreement and the facts surrounding the State’s alleged
breach are questions of fact that we review under the clearly erroneous standard. Id.
“Whether the State’s conduct constitutes a material and substantial breach of the
plea agreement is a question of law that this court reviews de novo.” Id.

¶9 A criminal defendant “has a constitutional right to the enforcement of
a negotiated plea agreement.” State v. Williams, 2002 WI 1, ¶37, 249 Wis. 2d 492,
637 N.W.2d 733. “[O]nce an accused agrees to plead guilty in reliance upon a
prosecutor’s promise to perform a future act, the accused’s due process rights
demand fulfillment of the bargain.” Id.; see also State v. Ferguson, 166 Wis. 2d
317, 321, 479 N.W.2d 241 (Ct. App. 1991) (“If a guilty plea ‘rests in any significant
degree on a promise or agreement of the prosecutor, so that it can be said to be part
of the inducement or consideration, such promise must be fulfilled.’” (quoted source

5
The charge to which Byrd pleaded guilty was second-degree intentional homicide by
causing the death of A.B. “with intent … to kill [her] by unnecessary defensive force.” That crime
includes as an element that Byrd did not reasonably believe he was preventing or terminating an
unlawful interference with his person or did not reasonably believe that the force used was
necessary to prevent imminent death or great bodily harm to himself. See WIS JI-CRIMINAL 1016
(2015). This is commonly referred to as “imperfect self-defense.” See State v. Head, 2002 WI 99,
¶¶51, 85, 90, 255 Wis. 2d 194, 648 N.W.2d 413 (referring to “unnecessary defensive force” as
defined in WIS. STAT. § 940.01(2)(b) as “imperfect self-defense,” which requires that a defendant
had the “unreasonable belief” that the defendant was in imminent danger of death or great bodily
harm and the “unreasonable belief” that the force the defendant used was necessary to defend the
defendant). Under § 940.01(2)(b), “[u]nnecessary defensive force” is an affirmative defense that
mitigates the crime of first-degree intentional homicide to second-degree intentional homicide
under WIS. STAT. § 940.05.

6
Nos. 2021AP1512
2022AP158

omitted)). The State breaches the agreement by violating the terms of the agreement
so as to “defeat[] the benefit for which the accused bargained.” Williams, 249
Wis. 2d 492, ¶38.

¶10 Here, the parties agreed only as to the charge to which Byrd would
plead guilty. The prosecutor expressly informed the trial court that “[t]here are no
agreements as to what the State may ask for [at sentencing] or no caps [on what the
State may ask for].” Thus, Byrd bargained only for a reduced charge, from first-
degree intentional homicide to second-degree intentional homicide. The
prosecutor’s comments cited by Byrd may have been intended to show that Byrd’s
conduct warranted a heavy penalty because his belief was extremely unreasonable,
but Byrd points to no part of the prosecutor’s remarks that asked the court to impose
more than the maximum penalty for the reduced charge to which the parties agreed.
That is, the prosecutor’s remarks cited by Byrd did not defeat the benefit, the
reduced charge, for which Byrd bargained. Accordingly, the record conclusively
refutes Byrd’s allegation that the State breached the plea agreement.6

B. Knowing, Intelligent, and Voluntary Plea

¶11 A defendant may also meet the “manifest justice” test by showing that
the defendant “did not knowingly, intelligently, and voluntarily enter the plea.”
Sulla, 369 Wis. 2d 225, ¶24 (quoted source omitted); State v. Dillard, 2014 WI 123,
¶37, 358 Wis. 2d 543, 859 N.W.2d 44; see also State v. Burton, 2013 WI 61, ¶73,
349 Wis. 2d 1, 832 N.W.2d 611 (“Waiving constitutional rights must be knowing,

6
Byrd may also be arguing that the State breached the plea agreement by reneging on its
“concession” that there is evidence to show that Byrd acted with the unreasonable belief that he
was defending himself, when the prosecutor at sentencing told the trial court that Byrd’s conduct
“was unnecessary self-defense” rather than “imperfect self-defense.” As explained in footnote 5
above, the terms “unnecessary self-defense” and “imperfect self-defense” have the same meaning
in this context.

7
Nos. 2021AP1512
2022AP158

intelligent, and voluntary acts ‘done with sufficient awareness of the relevant
circumstances and likely consequences.’” (quoting Brady v. United States, 397 U.S.
742, 748 (1970))). If a guilty plea is not entered knowingly, intelligently, and
voluntarily, the defendant is entitled to withdrawal of the plea “as a matter of right
because such a plea ‘violates fundamental due process.’” State v. Finley, 2016 WI
63, ¶13, 370 Wis. 2d 402, 882 N.W.2d 761 (quoting State v. Brown, 2006 WI 100,
¶19, 293 Wis. 2d 594, 716 N.W.2d 906).

¶12 A defendant may show that the defendant’s plea was not knowingly,
intelligently, and voluntarily entered under either of two lines of cases: (1) the
Bangert line of cases, State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986),
when the plea colloquy itself is defective; or (2) the Nelson/Bentley line of cases,
Nelson v. State, 54 Wis. 2d 489, 195 N.W.2d 629 (1972), and State v. Bentley, 201
Wis. 2d 303, when “some factor extrinsic to the plea colloquy, like ineffective
assistance of counsel or coercion, renders a plea infirm.” State v. Howell, 2007 WI
75, ¶¶2, 74, 301 Wis. 2d 350, 734 N.W.2d 48. Under the second line of cases, the
burden is on the defendant to show that the plea was not entered knowingly,
intelligently, and voluntarily. State v. Hoppe, 2009 WI 41, ¶60, 317 Wis. 2d 161,
765 N.W.2d 794.

¶13 “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 fact unless those are clearly
erroneous. Id. We review de novo whether the facts demonstrate that the plea was
not entered knowingly, intelligently, and voluntarily. Id.

8
Nos. 2021AP1512
2022AP158

¶14 We address Byrd’s claims under the first line of cases—inadequate
plea colloquy—in this section and his claims under the second line of cases—
extrinsic factors including ineffective assistance of counsel—in the next section.

¶15 In his motion, Byrd alleged that the plea colloquy was inadequate
because the trial court failed to establish that Byrd understood the nature of the crime
and the constitutional rights he was waiving. The transcript of the court’s
comprehensive and thorough plea colloquy conclusively refutes this allegation.

¶16 On appeal, Byrd argues that the plea colloquy was inadequate because
the trial court noted that the plea questionnaire that Byrd signed indicated that Byrd
was “receiving some treatment and ha[s] had medications within the last 24 hours,”
but the court did not inquire as to nature of or purpose for the treatment. The plea
questionnaire specified that Byrd was “currently receiving treatment for a mental
illness or disorder.” The following exchange continued in response to the trial
court’s noting the treatment and medications:

The Court: Are the medications [pre]scribed by a doctor?

The Defendant: Yes.

The Court: Are you taking them the way the doctor has
prescribed?

The Defendant: Yes.

The Court: Okay. Do those in any way interfere with your
understanding of what we are doing here today in court, your
ability to think clearly about all of these very important
decisions, and your ability to confer and counsel with your
attorneys?

The Defendant: No.

This exchange refutes Byrd’s argument that the trial court had reason to inquire as
to the details of Byrd’s treatment beyond that it was for mental illness and he was

9
Nos. 2021AP1512
2022AP158

under a doctor’s care. Byrd does not point to any part of the colloquy when Byrd,
by his conduct or responses, indicated that his illness or medications affected his
understanding of and ability to process the proceedings and consult with counsel.
To the contrary, the transcript of the plea hearing reflects that Byrd responded
appropriately to the trial court’s inquiries and did not exhibit behavior suggesting
that he was disoriented or confused. Byrd also fails to cite any legal authority
supporting the proposition that a plea colloquy must address the details of a
defendant’s treatment and medications when the defendant does not indicate that
the treatment or medications interfere with the defendant’s understanding and
ability. Moreover, Byrd failed to raise this particular issue in his initial
postconviction motion. For all these reasons, this argument fails.

C. Ineffective Assistance of Counsel

¶17 “[T]he ‘manifest injustice’ test is [also] met if the defendant was
denied the effective assistance of counsel.” Bentley, 201 Wis. 2d at 311. To prove
ineffective assistance of counsel, a defendant must show both “that counsel’s
performance was deficient and that the deficient performance was prejudicial.”
State v. Breitzman, 2017 WI 100, ¶37, 378 Wis. 2d 431, 904 N.W.2d 93 (citing
Strickland, 466 U.S. at 687). “[T]here is no reason for a court deciding an
ineffective assistance claim … to address both components of the inquiry if the
defendant makes an insufficient showing on one.” Strickland, 466 U.S. 668, 697;
see also Breitzman, 378 Wis. 2d 431, ¶37 (“If the defendant fails to satisfy either
prong [under Strickland], we need not consider the other.”). The defendant bears
the burden on both of these prongs. State v. Roberson, 2006 WI 80, ¶24, 292
Wis. 2d 280, 717 N.W.2d 111.

10
Nos. 2021AP1512
2022AP158

¶18 Counsel’s performance is “constitutionally deficient if it falls below
an objective standard of reasonableness.” State v. Thiel, 2003 WI 111, ¶19, 264
Wis. 2d 571, 665 N.W.2d 305. Professionally competent assistance encompasses a
“wide range” of conduct, and a reviewing court starts with the presumption that
counsel’s assistance fell within that wide range. Strickland, 466 U.S. at 689. “[A]
fair assessment of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Id.

¶19 To demonstrate prejudice, a defendant seeking plea withdrawal must
show “that there is a reasonable probability that, but for [] counsel’s errors, [the
defendant] would not have pleaded guilty and would have insisted on going to trial.”
Bentley, 201 Wis. 2d at 312 (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

¶20 “Whether a defendant received ineffective assistance of counsel is a
mixed question of law and fact.” State v. Maday, 2017 WI 28, ¶25, 374 Wis. 2d
164, 892 N.W.2d 611. The circuit court’s findings of fact will not be disturbed
unless those findings are clearly erroneous. Id. “‘[T]he circumstances of the case
and … counsel’s conduct and strategy’ are considered findings of fact.” Id. (quoted
source omitted). Whether those facts constitute deficient performance and whether
such deficient performance was prejudicial are questions of law that we review
independently. See State v. Tulley, 2001 WI App 236, ¶5, 248 Wis. 2d 505, 635
N.W.2d 807.

¶21 In his initial motion Byrd alleged that counsel was ineffective in
several respects. We address each allegation in turn.

11
Nos. 2021AP1512
2022AP158

¶22 Byrd alleged, and he argues on appeal, that counsel failed to object to
the State’s breach of the plea agreement. We have explained above why he has
failed to show any breach; therefore, counsel could not be ineffective for not raising
a nonmeritorious objection. See State v. Reynolds, 206 Wis. 2d 356, 369, 557
N.W.2d 821 (Ct. App. 1996) (it is not deficient performance to fail to make an
objection that would have been unsuccessful).

¶23 Byrd also alleged, and he reiterates on appeal, that counsel failed to
explain the elements of the charge to which he was pleading, to explain possible
defenses to the charge such as heat of passion, and to explain that the facts alleged
did not meet the elements because there was no intent to kill A.B. and his self-
defense belief was reasonable. These first two allegations (failure to explain
elements and defenses) are conclusively refuted by the transcript of the colloquy,
during which Byrd and counsel confirmed that counsel had explained the elements,
which were also attached to the plea questionnaire and stated by the trial court, that
Byrd understood the elements and had no questions about them, and that counsel
had explained possible defenses. As to the third allegation (facts do not meet
elements), the court established during the colloquy that the criminal complaint and
preliminary hearing transcript supplied the factual basis for the plea. Byrd does not
explain how the allegations in the criminal complaint fail to support the elements of
intent and unreasonable belief. His conclusory allegation as to his subjective
feelings about his conduct is insufficient.

¶24 Byrd further alleged, and he reiterates on appeal, that counsel coerced
him to plead despite his lack of intent and reasonable self-defense belief, and that
counsel took advantage of his being heavily medicated and mentally ill, which
interfered with his abilities to understand the proceedings. The plea colloquy belies
these conclusory allegations. Byrd told the trial court that his counsel had

12
Nos. 2021AP1512
2022AP158

represented him competently, had answered all of his questions, had reviewed his
case thoroughly, and had looked for possible defenses. Byrd told the court that he
was satisfied with counsel’s services and did not believe them to be lacking in any
way. Byrd told the court that his medication did not interfere with his understanding
or abilities. Byrd also admitted that he was guilty of the charge. Byrd points to no
other parts of the record that support his allegations to the contrary.7

¶25 Relatedly, Byrd alleged that counsel failed to investigate his
competency in light of his “obvious mental health issues” and his being “impaired
in such a way that could not contribute to his defense.” See State v. Garfoot, 207
Wis. 2d 214, 222, 558 N.W.2d 626 (1997) (A person is competent to proceed if the
person possesses both “sufficient present ability to consult with his or her lawyer
with a reasonable degree of rational understanding, and ... a rational as well as
factual understanding of a proceeding against him or her.”). In his motion Byrd
cited a psychiatric report completed upon his entering the prison system after he was
sentenced, which noted that he was on medication for mood stability and had a
history of bipolar disorder/organic mood disorder and substance use disorders.
However, Byrd does not explain what his issues and impairments were or how they
prevented him from understanding and consulting with counsel at the time of the

7
In his reply brief, Byrd appears to argue that he was coerced into pleading because his
view of the facts establishes that he is not guilty of second-degree intentional homicide. However,
to the extent that Byrd argues that his plea was involuntary because it was coerced, this argument
comes too late to be considered. See Smith v. State, 60 Wis. 2d 373, 380, 210 N.W.2d 678 (1973)
(“a coerced plea … lacks the voluntariness essential to the validity of a plea”); Bilda v. County of
Milwaukee, 2006 WI App 57, ¶20 n.7, 292 Wis. 2d 212, 713 N.W.2d 661 (“It is a well-established
rule that we do not consider arguments raised for the first time in a reply brief.”). This argument
also reflects Byrd’s subjective view of the facts, which disregards the trial court’s finding during
the plea colloquy that the facts in the criminal complaint do support the charge to which he pleaded.
Being confronted with those facts does not present a situation that is unlawfully coercive. See State
v. Goyette, 2006 WI App 178, ¶26, 296 Wis. 2d 359, 722 N.W.2d 731 (“If a lawyer’s advice to a
client that a plea offer represents a good deal amounts to coercion, then few guilty pleas could
stand.”).

13
Nos. 2021AP1512
2022AP158

plea proceedings. A history of mental illness does not necessarily render the person
incompetent to proceed. State v. Byrge, 2000 WI 101, ¶31, 237 Wis. 2d 197, 614
N.W.2d 477. Byrd’s conclusory allegations do not suffice to show ineffective
assistance of counsel.

¶26 On appeal, Byrd expands on the issue of competency and argues that
the trial court erred in not holding a competency hearing, that counsel failed to move
for a competency hearing, and that he was unlawfully convicted and sentenced while
incompetent. Id., ¶31 (competency to proceed is “a judicial inquiry, not a medical
determination”). He bases these new assertions on the report of a psychological
evaluation that was conducted the day before the plea hearing. Byrd references the
parts of the report that assessed his behavior at the time of the crime and concluded
that his intoxication was a substantial factor in the outcome of the incident;
concluded that he met the criteria for diagnoses of bipolar, substance abuse, and
personality disorder; and opined that he was malingering during the evaluation.
Byrd offers no expert support for his assertions about his competency at the time of
the plea proceeding. Moreover, as the State notes, Byrd did not raise any of these
competency-related assertions (other than ineffective assistance of counsel, which
we addressed above) in his initial motion. Accordingly, we do not consider them
further.

¶27 On appeal, Byrd also argues that counsel failed to move to suppress
the statements he made to law enforcement during the interviews that he requested
when he was in jail. However, he did not make this allegation in his initial motion,
and he fails on appeal to show that counsel failed to file a meritorious motion on
this issue.

14
Nos. 2021AP1512
2022AP158

¶28 Also on appeal, Byrd asserts that counsel improperly told Byrd that
he would be found guilty of first-degree intentional homicide if he went to trial and
that it would be better to plead to second-degree intentional homicide than to
second-degree reckless homicide. Byrd also asserts that counsel never discussed
any sentencing recommendations with Byrd, and that, at sentencing, counsel
improperly recommended more time than the Presentence Investigation Report
recommended (as to extended supervision) and more time than the penalties for
second-degree reckless homicide. Finally, Byrd asserts that counsel pursued the
case “without any feedback from [] Byrd.” Byrd did not make any of these
assertions in his initial motion; nor does he cite any factual support in the record to
entitle him to a hearing on these conclusory assertions.

¶29 In sum, Byrd fails to show that his initial postconviction motion
sufficed to entitle him to relief.

II. Byrd’s “Amended Supplemental” Motion for Postconviction Relief

¶30 As stated, the circuit court denied Byrd’s “amended supplemental”
motion as procedurally barred and as an “improper” motion for reconsideration. We
conclude that the court properly denied the motion because it did not meet the
standard for reconsideration.

¶31 We review a circuit court’s decision on a motion for reconsideration
for an erroneous exercise of discretion. Koepsell’s Olde Popcorn Wagons, Inc. v.
Koepsell’s Festival Popcorn Wagons, Ltd., 2004 WI App 129, ¶6, 275 Wis. 2d 397,
685 N.W.2d 853. “To prevail on a motion for reconsideration, the movant must
present either newly discovered evidence or establish a manifest error of law or
fact.” Id., ¶44.

15
Nos. 2021AP1512
2022AP158

¶32 In his “amended supplemental” motion, Byrd alleged that his
inculpatory statements to law enforcement were improperly introduced into
evidence because they were “coerced” without counsel present. However, Byrd
waived this claim when he pleaded guilty without first filing a motion to suppress
his inculpatory statements. See WIS. STAT. § 971.31(10); State v. Hampton, 2010
WI App 169, ¶23, 330 Wis. 2d 531, 793 N.W.2d 901 (stating that § 971.31(10)
provides a narrow exception to the rule that a guilty plea waives all nonjurisdictional
defects and defenses by allowing appellate review of the denial of a motion to
suppress). Accordingly, he could only raise this issue through a claim of ineffective
assistance of counsel, and he did not make that claim on this basis in his initial
motion. Nor does Byrd explain how the facts pertinent to such a claim would have
been newly discovered. Consequently, this claim fails to meet the standard for
reconsideration.

¶33 Byrd also alleged that counsel rendered ineffective assistance in four
respects. Byrd appeared to allege that counsel failed to object to the State’s
allegedly false and unsupported remarks at sentencing, including remarks that
referenced allegedly “perjured testimony” and statements by Byrd’s ex-wife.
However, Byrd did not make this claim on this basis in his initial motion. Nor does
Byrd explain how the facts pertinent to such a claim would have been newly
discovered.

¶34 Byrd alleged that counsel coerced him to plead to a charge when the
facts did not meet the statutory elements because he had no intent. However, he
failed to present either newly discovered evidence or establish a manifest error of
law or fact as to the circuit court’s rejection of this same allegation in his initial
motion for postconviction relief.

16
Nos. 2021AP1512
2022AP158

¶35 Byrd alleged that counsel “confused” him by equating “self-defense”
with “imperfect self-defense” and by advising him that if he went to trial he would
be convicted of first-degree intentional homicide when the prosecutor “had every
intention of pursuing the case as second-degree intentional homicide.” These
allegations are conclusory and, to the extent that they overlap with allegations that
Byrd made in his initial motion for postconviction relief, he failed to present either
newly discovered evidence or establish a manifest error of law or fact as to the
circuit court’s rejection of such allegations.

¶36 Byrd alleged that counsel failed to inform the trial court of Byrd’s
psychological evaluation the day before the plea hearing and that, according to
Byrd, the doctor’s conclusion that Byrd was mentally ill showed that Byrd did not
understand the legal proceedings and was not competent to plead. The evaluation
Byrd refers to took place over two days, the day before the plea hearing and about
three weeks after the plea hearing. The doctor completed the report of the evaluation
after the plea hearing and counsel filed the report before sentencing. Byrd does not
explain how this report constitutes evidence that he did not discover before he filed
his initial motion for postconviction relief.

¶37 Moreover, Byrd does not point to any language in the report that
addresses his competency at the time of the evaluation and plea hearing, or language
that would support an allegation that his treatment and medication affected his
competency to plead. Rather, the report states that: “the evaluation centered on
gathering information about Mr. Byrd’s background, lifestyle, psychological
condition and what role those components play in his life in an effort to offer a
framework within which to understand his behavior around the time of [A.B.’s]
death.” The report also states that, during the evaluation, Byrd was oriented and
able to respond to questions appropriately and concisely; “his thought process was

17
Nos. 2021AP1512
2022AP158

without psychotic components”; his intellectual level “appeared to be average or
above”; and his “[i]nsight and judgment appeared to be very good.” The doctor
administered two psychological tests, and opined that Byrd, in answering the tests’
questions, “made an effort to greatly exaggerate the presentation of his level of his
disturbance” and showed “a desire to appear more disturbed than he may actually
be.” Byrd fails to show that the report’s conclusions and opinions constituted newly
discovered evidence relevant to his competency at the time of the plea hearing.8

CONCLUSION

¶38 For the reasons stated, we affirm the circuit court’s denial of Byrd’s
initial and “amended supplemental” motions for postconviction relief.

By the Court.—Orders affirmed.

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

8
The same reasoning defeats Byrd’s use of the psychological evaluation report to support
his allegation that the trial court proceeded without jurisdiction because his competency was in
question and no competency evaluation was performed.

18