State v. Craig W. Holtz

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.
July 31, 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. 2023AP1916-CR Cir. Ct. No. 2020CF648

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CRAIG W. HOLTZ,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Manitowoc County: JERILYN M. DIETZ, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Lazar, 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. 2023AP1916-CR

¶1 PER CURIAM. Craig W. Holtz appeals from a judgment, entered
on his guilty plea, convicting him of first-degree reckless homicide. He also
appeals from an order denying postconviction relief. On appeal, Holtz argues he
should be permitted to withdraw his plea because trial counsel was ineffective in
his handling and explanations to Holtz of self-defense, McMorris1 evidence, and
lesser-included offenses. He also argues plea withdrawal is necessary because the
circuit court’s plea colloquy did not specifically inquire into Holtz’s understanding
of this information and therefore his plea was not knowingly, voluntarily, and
intelligently entered. We reject Holtz’s arguments and affirm.

BACKGROUND

¶2 Holtz stabbed J.R.A.2 multiple times killing him. According to the
criminal complaint, Holtz arrived at an apartment where J.R.A. was present to
return money after failing to obtain methamphetamine for another person. While
Holtz and J.R.A. were listening to music in the living room, a witness heard Holtz
and J.R.A. begin to argue and yell. The witness then saw them punching each
other with closed fists. J.R.A. moved away from Holtz, and the witness saw
J.R.A. bleeding and Holtz holding a knife. Holtz stated, “If you come towards me
I’ll stick you again.” J.R.A. said, “He cut me in my heart.” Holtz fled the scene
and threw his knife in a river. Despite attempts at lifesaving measures, J.R.A. died

1
McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (1973). Under McMorris, when a
defendant raises self-defense to a homicide and “there is a factual basis to support such defense,
the defendant may ... establish what the defendant believed to be the turbulent and violent
character of the victim by proving prior specific instances of violence within his knowledge at the
time of the incident.” Id. at 152.
2
The parties have used the victim’s initials instead of his name. We will do so as well
for consistency and for the victim’s family’s privacy.

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No. 2023AP1916-CR

of his wounds. An autopsy revealed that J.R.A. had one stab wound to his chest,
four stab wounds to his abdomen, and one stab wound to his left forearm. Among
other things, the State charged Holtz with first-degree intentional homicide as a
repeater and with the use-of-a-dangerous-weapon enhancer.

¶3 Pursuant to a plea agreement, the State amended the first-degree
intentional homicide charge to first-degree reckless homicide and dropped the
repeater and use-of-a-dangerous-weapon enhancer. Holtz pled guilty to the
amended charge and the remaining charges along with charges in two other
criminal matters were dismissed and read in.

¶4 During sentencing, Holtz’s trial counsel argued the defense’s version
of events. Counsel emphasized that a witness told police that J.R.A. and Holtz
were punching each other, but that J.R.A. was “getting the better of it” because he
was larger than Holtz. Counsel argued “the knife is produced, not out of, I would
say not out of rage or anger, the knife is eventually produced out of fear.” Counsel
continued:

[Holtz] says he stabs [J.R.A.] once and he says I have a
knife I’ll stab you again, and he does as [J.R.A.] continues
to strike him.

….

[T]his wasn’t a situation where Mr. Holtz walks in, sees
[J.R.A.], and pulls out a knife and stabs him. There was a
prelude to this and a build up to the crime here.

Counsel also emphasized that Holtz had accepted responsibility and pled—“[I]t
could have gone to trial, I don’t think [Holtz] would have got convicted of first
degree. I think there was a good chance that he would have gotten convicted of
the reckless homicide, that’s what he [pled] guilty to.”

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No. 2023AP1916-CR

¶5 Ultimately, the circuit court sentenced Holtz to twenty-five years of
initial confinement and twenty years of extended supervision.

¶6 Holtz filed a postconviction motion alleging, in part, he was entitled
to withdraw his plea. Specifically, Holtz argued he was entitled to plea
withdrawal because trial counsel was ineffective for failing to “adequately inform
Holtz of the law of self-defense, the use of ‘McMorris evidence’ to support a self-
defense argument and how lesser included offenses are reviewed by a jury in
Wisconsin.” Holtz also argued the circuit court’s plea “colloquy did not inquire as
to whether trial counsel discussed possible defenses with Holtz” or whether trial
counsel “explained to Holtz the law concerning self-defense, ‘McMorris
evidence’, or that Holtz had, through counsel, the ability to request lesser included
offenses to be submitted to the jury at trial.” Holtz asserted he would not have
pled to the amended charge of first-degree reckless homicide if he had known this
information.

¶7 The circuit court held a Machner3 hearing. At the hearing, trial
counsel testified that “self defense was a big part of this case” and he “certainly
discussed self defense” with Holtz. Counsel reviewed possible defense strategies
with Holtz and “self defense would have been the defense if the case would have
gone to trial.”

¶8 Counsel also testified that he was aware of McMorris evidence.
McMorris would have generally permitted Holtz to introduce at trial evidence of

3
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979). “A Machner
hearing is ‘[t]he evidentiary hearing to evaluate counsel’s effectiveness, which includes counsel’s
testimony to explain his or her handling of the case.’” State v. Jackson, 2023 WI 3, ¶1 n.1, 405
Wis. 2d 458, 983 N.W.2d 608 (citation omitted).

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No. 2023AP1916-CR

J.R.A.’s violent behavior as long as Holtz was aware of that behavior at the time
of the homicide. Counsel asked Holtz if he had any knowledge of J.R.A.’s violent
tendencies or prior violent nature. Holtz told counsel that J.R.A. had a reputation
for fighting and Holtz described a fight that occurred when they were both in jail
together. Counsel hired an investigator to go to the Manitowoc County Jail to
interview a witness regarding the fight; however, the witness was uncooperative.
Counsel did not do open records requests for police reports concerning J.R.A. or
any violent behavior he committed against others. Counsel “certainly would have
done more of an investigation if this case was going to proceed to trial” but noted
“the case was set for a trial quite a way out from the plea.” Counsel investigated
everything Holtz asked him to investigate. Counsel testified he would have filed a
motion to admit McMorris evidence if the case had proceeded to trial.

¶9 Counsel also discussed the lesser-included offenses to first-degree
intentional homicide with Holtz and explained how they would work at trial.
Holtz, through counsel, made an initial plea offer to the State to plead to an
amended charge of second-degree reckless homicide, which is one of the lesser-
included offenses. Counsel explained he would have reviewed the different types
of homicides with Holtz prior to making that offer “because there would have had
to be some discussion of how we’re getting from intentional to second degree
reckless.” There was then back and forth email negotiations, and the parties
settled on a plea to an amended charge of first-degree reckless homicide, which is
another one of the lesser-included offenses. Holtz accepted that offer.

¶10 Counsel testified he recalled Holtz wanted the plea and sentencing to
occur promptly and within a certain time frame. In the plea-negotiation email
exchange between counsel and the State, which was admitted into evidence at the
hearing, trial counsel advised the State that “Holtz would want to be sentenced no

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No. 2023AP1916-CR

later than the end of June [because] he does not want to go back to Manitowoc
County Jail once his revocation sentence is over.”4

¶11 In support of his postconviction motion, Holtz signed an affidavit
that was admitted into evidence at the Machner hearing. In his affidavit, Holtz
generally averred that trial counsel did not adequately inform him of the law of
self-defense, the use of McMorris evidence to support a self-defense argument,
and how lesser-included offenses were reviewed by a jury. At the Machner
hearing, Holtz began by testifying that everything in the affidavit was true and
correct.

¶12 Holtz then admitted that trial counsel talked to him about how his
charge could be amended into something else. Holtz stated that trial counsel
talked to him about what the State would have to prove for the homicide counts.
On cross-examination, Holtz agreed that he discussed the various pretrial offers
with trial counsel, including the pros and cons of each, and that he gave trial
counsel permission to extend certain offers. Holtz agreed that he would have
discussed lesser-included offenses with trial counsel during plea negotiations.

¶13 Holtz testified he tried to tell trial counsel what he knew about
J.R.A. but trial counsel “basically said it was not important at the time.” When
asked what he knew about J.R.A., Holtz testified about the incident in the jail and
said that while in the jail with J.R.A., J.R.A. “was talking about how he was in for
being at the bar and beating on a cop, and other, you know, how he liked to go to
bars and fight after he got drunk.” Holtz also said J.R.A. threatened him on the

4
Holtz was revoked from supervision in part for killing J.R.A.

6
No. 2023AP1916-CR

street but Holtz did not immediately recognize him. Holtz never heard of
McMorris evidence before he pled. Holtz testified that if he knew he could bring
in evidence concerning J.R.A.’s violent behaviors at trial that he believed it would
have changed his mind about whether to plead. Holtz admitted he provided trial
counsel with the name of a witness to the altercation at the jail. He did not ask
trial counsel to interview anyone else.

¶14 The circuit court denied Holtz’s postconviction motion in a written
decision. It found that trial counsel’s testimony and email exchanges
demonstrated that counsel knew self-defense was the major issue in the case. The
circuit court found, based on trial counsel’s and Holtz’s testimony, that trial
counsel “did, in fact, identify self-defense as an issue, discussed the possibility of
amendments with his client, relied on self-defense in plea negotiations, and
referred to it at sentencing.” The circuit court also found that trial counsel
explained the lesser-included offenses to Holtz, noting trial counsel testified that
he explained the lesser-included offenses and “how they arrived at the strategy to
offer a plea to Second Degree Reckless Homicide.” The court concluded trial
counsel was not deficient by failing to explain self-defense or the lesser-included
offenses to Holtz or raise those issues in this case.

¶15 As to the McMorris evidence, the circuit court found that the
evidence would only be relevant at a trial, that Holtz directed trial counsel to
negotiate his case, and that those negotiations resulted in an agreement that Holtz
accepted. The circuit court concluded trial counsel was not deficient for failing to
file a motion to admit McMorris evidence.

¶16 The circuit court then analyzed and determined whether Holtz was
prejudiced by trial counsel’s purported deficiencies. Specifically, the court

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No. 2023AP1916-CR

considered whether, based on the record, Holtz would have received and
succeeded with an instruction on perfect self-defense.5 The court reasoned that, if
Holtz would only have received imperfect self-defense, the penalty class would
have been the same as the crime he pled guilty to, so he could not demonstrate
prejudice. The circuit court found that Holtz had failed to demonstrate that he
would have received or prevailed on a perfect self-defense claim.

¶17 The circuit court then determined that because Holtz and trial
counsel discussed the various levels of homicide and self-defense, Holtz’s plea
was voluntary, and the plea colloquy was without a defect requiring plea
withdrawal. Holtz appeals. Additional facts will be included below.

DISCUSSION

¶18 “When a defendant moves to withdraw a plea after sentencing, the
defendant ‘carries the heavy burden of establishing, by clear and convincing
evidence, that the trial court should permit the defendant to withdraw the plea to
correct a manifest injustice.’” State v. Cain, 2012 WI 68, ¶25, 342 Wis. 2d 1, 816
N.W.2d 177 (citation omitted). Ineffective assistance of counsel is one type of
manifest injustice. Id., ¶26. A defendant may also demonstrate a manifest
injustice by showing that he or she did not knowingly, voluntarily, and
intelligently enter his or her plea. State v. Brown, 2006 WI 100, ¶18, 293 Wis. 2d
594, 716 N.W.2d 906.

5
Perfect self-defense is a complete affirmative defense to first-degree intentional
homicide and imperfect self-defense is a factor mitigating first-degree intentional homicide to
second-degree intentional homicide. State v. Head, 2002 WI 99, ¶36, 255 Wis. 2d 194, 648
N.W.2d 413.

8
No. 2023AP1916-CR

I. Ineffective assistance of counsel

¶19 On appeal, Holtz renews his argument that he should be permitted to
withdraw his plea because trial counsel was ineffective in his handling and
explanations to Holtz of self-defense, McMorris evidence, and lesser-included
offenses. To establish a claim of ineffective assistance, a defendant must prove
both: (1) deficient performance by counsel; and (2) prejudice resulting from that
deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). We
need not address both elements of the ineffective assistance test if the defendant
fails to make a sufficient showing on one of them. State v. Dalton, 2018 WI 85,
¶32, 383 Wis. 2d 147, 914 N.W.2d 120.

¶20 “To demonstrate deficient performance, a defendant must show that
counsel’s representation fell below an objective standard of reasonableness
considering all the circumstances.” Id., ¶34. “In evaluating counsel’s
performance, this court is highly deferential to counsel’s strategic decisions.” Id.,
¶35. We must make “every effort … 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.” Strickland, 466 U.S.
at 689.

¶21 “Appellate review of an ineffective assistance of counsel claim is a
mixed question of law and fact.” Dalton, 383 Wis. 2d 147, ¶33. “The circuit
court’s findings of fact will not be disturbed unless they are clearly erroneous.”
Id. “However, the ultimate determination of whether the attorney’s performance
falls below the constitutional minimum is a question of law we review
independently of the determinations rendered by the circuit court[.]” Id.

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No. 2023AP1916-CR

¶22 On appeal, Holtz largely challenges the factual findings made by the
circuit court in support of its determination that trial counsel did not perform
deficiently. He believes the circuit court should have given more weight and
consideration to his affidavit—where he averred trial counsel did not adequately
advise him of self-defense, McMorris evidence, or lesser-included offenses,
instead of trial counsel’s testimony that he did explain these things to Holtz and
would have filed a McMorris motion had the case proceeded to trial.

¶23 However, credibility determinations and the weight given to the
evidence is strictly within the province of the factfinder. See State v. Poellinger,
153 Wis. 2d 493, 506, 451 N.W.2d 752 (1990) (“It is the function of the trier of
fact, and not of an appellate court, to fairly resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.”). Here, the circuit court found trial counsel to be credible and Holtz’s
affidavit to be self-serving.

¶24 The circuit court also found that trial counsel’s testimony was
bolstered by other evidence presented at the Machner hearing and in the record.
This evidence included the plea negotiation email exchanges between trial counsel
and the State where they negotiated, with Holtz’s approval, an amendment of the
first-degree intentional homicide charge to one of the lesser-included offenses.
The circuit court also cited a letter from Holtz’s cellmate that had been produced
in discovery for this case that indicated Holtz did not believe he would be
convicted of first-degree intentional homicide and discussed J.R.A.’s violent
tendencies. The record reflects that trial counsel hired an investigator to interview
a witness about J.R.A.’s violence. Trial counsel also argued self-defense at
sentencing.

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No. 2023AP1916-CR

¶25 Given the record, we see no reason to overturn the circuit court’s
factual determinations that trial counsel “did, in fact, identify self-defense as an
issue, discussed the possibility of amendments with his client, relied on self-
defense in plea negotiations, and referred to it at sentencing.” See Poellinger, 153
Wis. 2d at 507. The circuit court also found trial counsel discussed the lesser-
included offenses with Holtz. Finally, the circuit court found trial counsel “was
aware of McMorris evidence, knew that there was a self-defense issue in this case,
and would have filed a motion to admit it if the case had gone to trial.” Applying
the circuit court factual findings to the legal standard of deficient performance, we
agree with the circuit court that trial counsel’s performance was not deficient.

¶26 We also reject Holtz’s argument that trial counsel was deficient for
failing to file a motion to use McMorris evidence before Holtz’s plea hearing, for
failing to check CCAP or make open records requests to learn about J.R.A.’s
violent tendencies so counsel could discuss them with Holtz, and for failing to
investigate whether Holtz was injured in a bicycle accident6 approximately one
month before killing J.R.A. (which Holtz asserts would further support his self-
defense claim).

¶27 As the circuit court observed, a motion to use McMorris evidence at
trial becomes necessary only if the case is proceeding to trial. Trial counsel
testified that the case was scheduled to go to a jury trial in late April 2022. The
parties reached a plea agreement in early March 2022, and Holtz pled guilty on

6
At the Machner hearing, Holtz testified that approximately one month before killing
J.R.A., Holtz was in a bicycle accident and injured himself. His most significant injuries were
sprained ribs and a hurt arm.

11
No. 2023AP1916-CR

March 28, 2022. Trial counsel was not deficient for failing to file a motion to use
evidence at a case that was not going to proceed to trial.

¶28 Next, McMorris permits a defendant in a homicide case, who has a
factual basis to argue self-defense, to “establish what the defendant believed to be
the turbulent and violent character of the victim by proving prior specific instances
of violence within his knowledge at the time of the incident.” McMorris v. State,
58 Wis. 2d 144, 152, 205 N.W.2d 559 (1973) (emphasis added). Trial counsel had
no obligation to search for evidence of J.R.A.’s violent tendencies and then ask
Holtz whether he knew about them. Rather, as counsel testified, Holtz told him
what he knew about J.R.A. and counsel then hired an investigator who went to
interview a witness at the jail.

¶29 Although Holtz introduced evidence at the Machner hearing to
establish additional instances of J.R.A.’s violence, the circuit court found that
Holtz “only knew that [J.R.A.] liked to fight” and Holtz did not show “that he
actually knew any of the details” of this evidence. The circuit court’s factual
finding is not clearly erroneous. Additionally, trial counsel testified he
investigated everything Holtz asked him to investigate. We agree with the circuit
court that trial counsel did not perform deficiently in regard to this evidence.

¶30 As for Holtz’s bicycle injury, Holtz acknowledges that he was aware
he was injured but argues trial counsel was nevertheless deficient for failing to
investigate this injury. He asserts the evidence of his injury “would support the
argument that Holtz, in order to defend himself, was at a severe disadvantage” and
because of his injuries was less able to defend himself. Again, trial counsel
testified that he investigated everything Holtz wanted him to investigate. The
circuit court found trial counsel to be credible. In any event, Holtz’s argument

12
No. 2023AP1916-CR

does not provide a basis for plea withdrawal because Holtz was certainly aware of
the bicycle injury at the time he pled and did not need trial counsel to investigate
in order to advise him of that fact. Trial counsel did not perform deficiently.

¶31 Because Holtz failed to demonstrate that his trial counsel performed
deficiently, we need not address prejudice. See Dalton, 383 Wis. 2d 147, ¶32.
Holtz cannot prove that his trial counsel provided ineffective assistance. We
conclude that Holtz failed to demonstrate manifest injustice, and the circuit court
properly denied Holtz’s motion to withdraw his guilty plea.

II. Knowing, voluntary, and intelligent plea

¶32 On appeal, Holtz next argues the circuit court’s plea colloquy was
deficient because the circuit court “did not inquire as to whether trial counsel
discussed possible defenses with Holtz nor did the [c]ourt inquire whether Holtz
was aware of the law concerning self-defense, ‘McMorris evidence’, or that Holtz
had, through counsel, the ability to request lesser included offenses to be
submitted to the jury at trial.” He also argues he was unaware of this information.

¶33 In Wisconsin, circuit courts have statutory and case-mandated duties
during plea colloquies to ensure that a defendant’s plea is knowing, voluntary, and
intelligent. Brown, 293 Wis. 2d 594, ¶23. If the circuit court fails to fulfill one of
its duties—either court-mandated or under WIS. STAT. § 971.08 (2021-22)7—the
defendant may move to withdraw his or her plea. Brown, 293 Wis. 2d 594, ¶36.
To do so, the defendant must “(1) make a prima facie showing of a violation of []

7
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2023AP1916-CR

§ 971.08(1) or other court-mandated duties by pointing to passages or gaps in the
plea hearing transcript; and (2) allege that the defendant did not know or
understand the information that should have been provided at the plea hearing.”
Brown, 293 Wis. 2d 594, ¶39. If the defendant establishes this information, then
the burden shifts to the State to prove by clear and convincing evidence that the
defendant’s plea was knowing, voluntary, and intelligent, despite the identified
issue from the plea hearing. Id., ¶40.

¶34 We reject Holtz’s argument that his plea was not knowing,
voluntary, or intelligent because the circuit court did not specifically inquire into
Holtz’s understanding of self-defense, McMorris evidence, or lesser-included
offenses at the plea hearing. As a threshold matter, Holtz cites no statutory or case
law imposing these specific requirements on a circuit court during a plea colloquy.
See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (we
need not consider undeveloped legal arguments). As relevant for defenses, the
circuit court need only “[a]lert the defendant to the possibility that an attorney may
discover defenses or mitigating circumstances that would not be apparent to a
layman such as the defendant.” Brown, 293 Wis. 2d 594, ¶35. That was fulfilled
here when, during the plea colloquy, Holtz stated he understood that he had the
right to present evidence at trial and to have witnesses subpoenaed to come to
court. Thus, the court’s plea colloquy did not have a defect.

¶35 More importantly, even if there were a defect in the colloquy, the
circuit court found that Holtz’s plea was knowing, voluntary, and intelligent
because he was aware of the information that he claims should have been provided
at the plea hearing. See id., ¶40. Specifically, the circuit court found that prior to
pleading to the amended charge of first-degree reckless homicide, Holtz and trial
counsel discussed the various levels of homicide and self-defense. These findings

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No. 2023AP1916-CR

are supported by the record and therefore not clearly erroneous. See id., ¶19.
Holtz’s plea was knowingly, voluntarily, and intelligently entered. The circuit
court properly denied his motion for plea withdrawal.

By the Court.—Judgment and order affirmed.

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

15