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 21, 2024
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2022AP1048 Cir. Ct. No. 2011CF963

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

PHILLIP A. BYRD,

DEFENDANT-APPELLANT.

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

Before Kloppenburg, P.J., Graham, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2022AP1048

¶1 PER CURIAM. Phillip Byrd appeals an order denying his
postconviction motion that was filed under WIS. STAT. § 974.06 (2021-22).1 The
issue is whether the motion was properly denied without an evidentiary hearing.
We conclude that it was, and therefore we affirm.

¶2 In 2015, Byrd pled to and was convicted of one count of intentional
failure to pay child support. He did not pursue postconviction relief under WIS.
STAT. RULE 809.30, but filed a motion under WIS. STAT. § 974.06 in 2021. The
circuit court denied the motion in 2022, and Byrd appeals.

¶3 A circuit court is required to hold an evidentiary hearing on a
defendant’s postconviction motion when the facts alleged in the motion, if true,
would entitle the defendant to relief, and when the record does not conclusively
demonstrate that the defendant is not entitled to relief. State v. Jackson, 2023
WI 3, ¶11, 405 Wis. 2d 458, 983 N.W.2d 608. Both parts of this test raise issues
of law that we review de novo.2 Id., ¶8.

1
All references to the Wisconsin Statutes are to the 2021-22 version.
2
The State asserts that the circuit court decision under review in this appeal was
discretionary. However, discretion plays a role only when a circuit court decides whether it will
hold a hearing despite the defendant’s failure to meet the legal test described above. See State v.
Ruffin, 2022 WI 34, ¶28, 401 Wis. 2d 619, 974 N.W.2d 432. Here, the court ultimately decided
not to hold a hearing. The appropriate analysis, therefore, is whether the court was required to
hold a hearing, which, as we state, raises only questions of law, not discretion. If we decide that
the court was required to hold a hearing, then no issues of discretion are present to be considered.
Only if the court was not required to hold a hearing might we also consider whether it was an
erroneous exercise of discretion to deny a hearing when one was not legally required. However,
it is difficult to imagine a situation in which such a denial would be an erroneous exercise of
discretion, and therefore the issue is rarely argued this way by parties, and courts rarely apply this
latter part of the analysis. Instead, the main focus is on the court’s initial legal decision that no
hearing was required, and this is the argument made here by Byrd. In sum, the State is correct
that discretion is involved in the final step of the analysis, if the analysis proceeds that far, but this
is rarely the step that matters on appeal.

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No. 2022AP1048

¶4 Byrd discusses several issues on appeal. He first argues that certain
aspects about the procedure used by the circuit court to decide his postconviction
motion were improper. However, because our review of the issues raised in
Byrd’s motion is independent from the circuit court decision, errors of this type
would not affect our review on appeal, and we do not discuss them further.

¶5 Byrd appears to argue that the plea colloquy was defective because
the circuit court failed to discuss the intent element of the charge. However, for
this defect to entitle Byrd to an evidentiary hearing, he must also allege that he did
not understand the intent element at the time of his plea. See State v. Howell,
2007 WI 75, ¶27, 301 Wis. 2d 350, 734 N.W.2d 48. Byrd’s postconviction motion
does not contain this allegation, and therefore he was not entitled to a hearing.

¶6 Byrd argues that he should be allowed to withdraw his plea because
he had a defense available. He appears to argue this issue as both a claim that his
plea was not knowing, voluntary, and intelligent, and also as a claim for
ineffective assistance of counsel based on an allegation that his trial counsel did
not investigate this defense. Byrd argues that the available defense was his
inability to pay support due to his difficulty finding work during the charged
period. See WIS. STAT. § 948.22(6) (affirmative defense of inability to pay).
However, under either framing, the argument fails because Byrd did not allege that
further investigation of this defense would have led him to reject the plea offer and
go to trial. Such an allegation is necessary to obtain an evidentiary hearing. See
State v. Bentley, 201 Wis. 2d 303, 313, 548 N.W.2d 50 (1996).

¶7 Byrd next argues that his trial counsel was ineffective by failing to
move for a determination of whether Byrd was competent to proceed. This

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No. 2022AP1048

argument fails because Byrd did not allege facts from which it could reasonably be
inferred that he was not competent at that time.

¶8 Byrd may also be arguing that he should be allowed to withdraw his
plea because he mistakenly believed that his conviction on this charge would have
the effect of expunging or ending his child support obligations. However, Byrd
does not provide any reasonable explanation of why he would have held that
belief, and he also appears to be denying that he personally remembers actually
having that belief. Instead, he suggests that the content of the judgment of
conviction shows that he held that belief. The judgment stated that restitution was
“[t]o be determined; to be paid after release from custody.” We do not agree that
this statement supports that interpretation.

By the Court.—Order affirmed.

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

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