State v. Phillip Timothy Bailey

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 10, 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. 2023AP1436-CR Cir. Ct. No. 2020CF3225

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

PHILLIP TIMOTHY BAILEY,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: REBECCA A. KIEFER, Judge. Affirmed.

Before White, C.J., Donald, P.J., and Colón, J.

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. Phillip Timothy Bailey appeals from the judgment
of conviction, entered upon jury’s verdicts, for first-degree recklessly endangering
No. 2023AP1436-CR

safety by use of a dangerous weapon, criminal damage to property, and disorderly
conduct, each with domestic abuse assessments, and possession of a firearm by a
convicted felon. He also appeals from the order denying his motion for
postconviction relief without an evidentiary hearing. Bailey argues that his
counsel was ineffective for failing to convey a plea offer before it expired and that
the circuit court denied him his right to a fair trial when it rejected the jury’s initial
verdicts without investigating the source of a juror’s dissent to the verdicts as they
were read. We reject Bailey’s arguments, and we affirm.

BACKGROUND

¶2 This case arises from incidents in which the State alleged Bailey
threatened the mother of his child in August 2020 in Milwaukee, and then
threatened, chased in a vehicle, and shot at her in September 2020. The State
charged him with first-degree recklessly endangering safety by use of a dangerous
weapon, criminal damage to property, possession of a firearm as a convicted felon,
and two counts of disorderly conduct, with various penalty enhancers for habitual
criminality, domestic abuse, and repeat firearm crimes.

¶3 The case proceeded to a jury trial in September 2021. As a
preliminary matter, the State informed the court that it gave trial counsel “an
updated offer” of a plea negotiation. The prosecutor stated that the trial should be
done that week “if the offer is not accepted.” The trial commenced with the State
presenting testimony from police officers and detectives as well as the victim, who
testified about Bailey chasing her while they both drove through the north side of
Milwaukee. She described calling 911 while Bailey tried to run her off the road,
shot at her vehicle, and hit her taillight. The victim continued driving looking for
help and drove into a fence in a yard. Bailey approached her car on foot; he broke

2
No. 2023AP1436-CR

the driver’s side window of her car by hitting it with a gun. The victim then drove
off and ended up at the Milwaukee Police Department district three station. The
victim’s 911 call was played for the jury.

¶4 After deliberations, the jury returned with verdicts, which the court
began to read to the courtroom. The court announced that the jury found Bailey
not guilty for count one of disorderly conduct, guilty for count two of first-degree
recklessly endangering safety, and not guilty for count three of possession of a
firearm by a convicted felon. The bailiff interrupted the judge and informed the
court that “[t]he foreperson says she might have a made–she made a mistake on
that.” The court responded, “Okay. Very good. So, ladies and gentlemen of the
jury, it appears as though you need to retire again and continue deliberations.”
Due to the late hour, the court excused the jury for the day and instructed them to
reconvene for deliberations the following morning.

¶5 Outside the presence of the jury, the circuit court addressed the
issue:

As I was reading the verdict forms that were returned to
me, it became immediately apparent that the forms that
were submitted were not the verdict of the jury. I am
inclined to give them new verdict forms as to all counts,
and return that to them tomorrow, so that they may
complete verdict forms that comport to what their verdict
is. I do not know what it was about what I was reading that
alerted the foreperson that there was an error, but it was
immediately clear as I was reading that what was given to
me, although they appeared to be completed accurately,
was not a reflection of their jury verdict.

After a sidebar with counsel, the court stated for the record that fresh copies of the
verdict forms would be given to the jury. The court stated, “I don’t know what
verdict form it was that was incorrectly filled out. They did not tell me, but it was
completely clear that something was wrong. I would like for them to have the

3
No. 2023AP1436-CR

opportunity to get it right.” The prosecutor and trial counsel agreed that new
verdict forms were appropriate.

¶6 The following day on October 1, 2021, the jury returned a not guilty
verdict for count one of disorderly conduct, which arose from the offense in
August 2020, and guilty verdicts on counts two through five, which arose from the
offenses in September 2020. The guilty verdicts consisted of: (2) first-degree
recklessly endangering safety with use of a dangerous weapon, (3) possession of a
firearm by a felon, (4) criminal damage to property, and (5) disorderly conduct.
The jury was polled and all jurors averred it was their chosen verdicts. The court
accepted the verdicts and entered the corresponding judgment of conviction.

¶7 In March 2022, the court sentenced Bailey for the four convictions
to a term of imprisonment equaling twenty years, bifurcated as twelve years of
initial confinement and eight years of extended supervision.1

¶8 In November 2022, Bailey moved for postconviction relief under
WIS. STAT. RULE 809.30 (2021-22).2 He argued that he was deprived of his Sixth
Amendment right to the effective assistance of counsel when his counsel failed to
inform him of a plea offer from the State before it expired. He also argued that his

1
The court imposed the sentence as follows. For count two, twelve years of
imprisonment bifurcated as seven years of initial confinement and five years of extended
supervision, to be served consecutively to his revocation sentence. For count three, eight years of
imprisonment, bifurcated as five years of initial confinement and three years of extended
supervision, to be served consecutively to the revocation sentence and count two. For count four,
nine months in the House of Correction to be served concurrently to counts two and three. For
count five, ninety days in the House of Correction to be served concurrently to counts two and
three.
2
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

4
No. 2023AP1436-CR

Fifth Amendment right to a fair trial was violated when the circuit court returned
the jurors to deliberations after the court began to read the verdicts and the
foreperson notified the bailiff there was a problem.3 The circuit court denied his
motion without a hearing.

¶9 Bailey now appeals. Additional facts related to his postconviction
claims are included below.

DISCUSSION

¶10 Bailey makes two arguments on appeal. First, he asserts that trial
counsel’s failure to convey a plea offer to Bailey before it expired deprived him of
his right to the effective assistance of counsel. Second, Bailey argues that the
circuit court erred when it sent the jurors to deliberate again when the foreperson
told the bailiff there was a mistake. We conclude that neither argument compels
relief, and we reject his claims.

I. Ineffective assistance of counsel

¶11 Bailey’s claim of ineffective assistance of counsel requires making
two showings: that trial “counsel’s performance was deficient,” and that “the
deficient performance prejudiced the defense.” Strickland v. Washington, 466
U.S. 668, 687 (1984). To make a showing of deficient performance, “the

3
In addition to the ineffectiveness claim related to plea bargaining in his postconviction
motion, Bailey made two more ineffectiveness claims. First, he asserted that trial counsel failed
to undertake a reasonable investigation into Bailey’s claimed alibi defense. Second, he argued
that trial counsel failed to object to the prosecutor’s vouching for the victim’s credibility and
failed to move for a mistrial. We note that these claims were not renewed in his appeal, and we
consider them abandoned. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588
N.W.2d 285 (Ct. App. 1998).

5
No. 2023AP1436-CR

defendant must show that counsel’s representation fell below an objective standard
of reasonableness.” Id. at 688. To show prejudice, “[t]he 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
need not address both prongs of the ineffective assistance test if the defendant fails
to make a sufficient showing on one. Id. at 697.

¶12 To succeed on this claim, Bailey’s motion for postconviction relief
must allege sufficient material facts to entitle him to an evidentiary hearing on his
claim. State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979)
(holding that an evidentiary hearing “preserv[ing] the testimony of trial counsel”
was a prerequisite to an ineffective assistance of counsel claim). Whether a
postconviction motion is sufficient on its face to entitle a defendant to a Machner
hearing on an ineffective assistance of counsel claim is a question of law that this
court reviews independently. State v. Balliette, 2011 WI 79, ¶18, 336 Wis. 2d
358, 805 N.W.2d 334.

¶13 “If the defendant’s motion alleges sufficient and non-conclusory
facts which would entitle the defendant to relief and the record does not
conclusively establish otherwise, then the circuit court must hold a Machner
hearing.” State v. Jackson, 2023 WI 3, ¶8, 405 Wis. 2d 458, 983 N.W.2d 608.
“[I]f 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.” State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682
N.W.2d 433. We review the circuit court’s decision to deny a postconviction

6
No. 2023AP1436-CR

motion without a Machner hearing for an erroneous exercise of discretion. State
v. Ruffin, 2022 WI 34, ¶28, 401 Wis. 2d 619, 974 N.W.2d 432.

¶14 The question before us is whether the circuit court erroneously
exercised its discretion when it denied Bailey’s ineffectiveness claim without a
hearing. “[A] postconviction motion for relief requires more than conclusory
allegations.” Allen, 274 Wis. 2d 568, ¶15. A postconviction motion must allege
“within the four corners of the [postconviction motion] itself,” sufficient material
facts about the “who, what, where, when, why, and how” of the claim to allow a
reviewing court to “meaningfully assess” the claim. Id., ¶23.

¶15 We turn to the substance of Bailey’s postconviction motion to assess
whether he alleged sufficient material facts to be entitled to a hearing. In his
motion, Bailey argued that trial counsel failed to convey two plea offers to him,
failed to confer with him about the State’s final plea offer until the morning of
trial, and failed to explain legal concepts underlying the possession charge. Bailey
asserted that he had mistakenly believed that the police had to locate a firearm on
his person in order to secure a conviction. Bailey alleged that if he had understood
the elements of possession and had not been rushed to make a decision on a plea,
he “probably” or “likely would have accepted the [S]tate’s offer in order to avoid
the risk of receiving a harsher sentence if the jury found him guilty for something
he did not do[.]”

¶16 Bailey’s motion described two of the State’s offers.4 The first offer
was tendered on May 24, 2021, approximately four months before trial. In that
4
We note that Bailey’s affidavit asserts that the State tendered three plea offers. While
two of the offers are discussed in detail, he makes no allegations about the third offer other than
its existence.

7
No. 2023AP1436-CR

offer, the State proposed that if Bailey took “full responsibility in this matter by
pleading guilty to one misdemeanor count without the habitual enhancer, and
count [two] without the while armed enhancer, before the matter is set for trial,”
the State would recommend certain costs and allow both sides to argue for an
appropriate sentence. There is no reference in the record to whether the remaining
counts would be read-in. Second, on the morning of trial, the State’s final offer
was Bailey agreeing to plead guilty “to the felon in possession of a firearm and
criminal damage to property charges,” and the State would dismiss and read in the
remaining counts: two disorderly conduct charges and a first-degree recklessly
endangering safety with use of a dangerous weapon charge.5

¶17 It is deficient performance for trial counsel to fail to communicate a
formal plea offer to a defendant. The United State Supreme Court has held that
“defense counsel has the duty to communicate formal offers from the prosecution
to accept a plea on terms and conditions that may be favorable to the accused.”
Missouri v. Frye, 566 U.S. 134, 145 (2012). Under the record before us, trial
counsel failed to present to Bailey at least two plea offers from the State. The
State concedes that this was deficient performance. Therefore, Bailey’s motion
satisfied the showing of deficient performance.

¶18 However, Bailey’s claim fails to make a showing of prejudice. To
make a showing of prejudice when a plea offer was not presented because of trial
counsel’s deficient performance, “defendants must demonstrate a reasonable
probability they would have accepted the earlier plea offer had they been afforded

5
The offer on the morning of trial, while referenced in the trial record, did not appear to
be reduced to writing. Bailey’s postconviction counsel attested that he had communicated with
trial counsel, who described the State’s final plea offer as set forth here.

8
No. 2023AP1436-CR

effective assistance of counsel.” Id. at 147. Additionally, defendants must
“demonstrate a reasonable probability the plea would have been entered without
the prosecution canceling it or the trial court refusing to accept it, if they had the
authority to exercise that discretion under state law.” Id. In other words, “it is
necessary to show a reasonable probability that the end result of the criminal
process would have been more favorable by reason of a plea to a lesser charge or a
sentence of less prison time.” Id.

¶19 Bailey argues that the State’s May offer had a lesser penalty than
what he was convicted of at trial, showing that the end result of the process would
have been more favorable. If Bailey had accepted the May offer, Bailey would
have pled guilty to a felony and a misdemeanor, instead, as a result of the trial, he
was found guilty of two misdemeanors and two felonies. Further, he argues that
he was sentenced to twenty years of imprisonment after trial, but the plea
agreement would have reduced his exposure to twelve years and six months for
the first-degree recklessly endangering safety felony and time in the House of
Correction for one of the misdemeanors.6 Thus, Bailey argues he has satisfied the
pleading requirements of Frye.

¶20 In contrast, the State argues that Bailey’s prejudice allegations are
conclusory and insufficiently pled, in violation with the requirements for a
postconviction motion under Allen and its progeny. First, Bailey’s unnotarized
affidavit does not state that he would have accepted the plea, but only that he was

6
We note that Bailey does not develop arguments related to the misdemeanor counts.
Our examination of the record shows that the disorderly conduct offenses only risk ninety days in
the House of Correction for each count and nine months in the House of Correction for the
property damage offense. Further, Bailey was charged with the two year habitual criminality
penalty enhancer for each misdemeanor.

9
No. 2023AP1436-CR

likely to do so. Second, Bailey does not explain why he was likely to accept the
May offer but rejected the final offer on the morning of trial. The circuit court’s
decision denying Bailey’s motion concluded that Bailey’s motion only offered
conclusory allegations and he did not set forth a sufficient explanation for why he
would have accepted an earlier plea offer communicated to him when he rejected
the offer on the day of the trial.

¶21 The State asserts that Bailey’s postconviction motion did not state
there was a reasonable probability that he would have accepted the May plea offer
(or another earlier plea offer) because the motion stated only that he “probably” or
“likely” would have accepted. Bailey responds that the State is splitting hairs over
word usage. We disagree. Bailey’s motion predicates his probable acceptance of
the May offer not on the terms of the State’s offer of reduced convictions and
prison exposure but on correcting his mistaken understanding of the law. Bailey
does not explain how the presentation of the May offer would have led to
correcting his understanding of the elements of a firearm possession charge.
Bailey’s motion does not “demonstrate a reasonable probability [he] would have
accepted the earlier plea offer” had counsel’s performance not been deficient in
failing to present it. Frye, 566 U.S. at 147.

¶22 The State argues that Bailey’s postconviction motion does not
explain why he would have accepted the May offer but refuse the final offer on the
morning of the trial.7 The State argues that its final offer was a better deal than the

7
Bailey argues that his pleading was sufficient because he contrasted the plea offer not
presented with the final result of trial. The factual scenarios in Missouri v. Frye, 566 U.S. 134,
138-39 (2012), in which counsel did not present any plea offers prior to expiration, differs
significantly from Bailey’s. In Frye, the defendant was deprived of any option to enter a plea.
Id. at 139. Here, Bailey was presented a plea offer prior to trial.

10
No. 2023AP1436-CR

May offer; therefore, Bailey’s failure to take the final offer showed that there was
not a reasonable probability of him taking the plea deal if it had been promptly
offered.8

¶23 Bailey’s motion focused on comparing the May offer to the result
after trial, but he did not allege why or how the May offer was superior to the final
offer. Even if we read his motion in the most favorable light, Bailey does not
explain what or why modest differences between the May and final offers would
have motivated him to accept a plea in May that he did not accept on the morning
of trial. At most, Bailey alleged feeling rushed on the morning of trial, but his
primary complaint was not understanding the elements of the possession charge.
We conclude that his allegations of prejudice arising from the plea offer not being
presented in May are conclusory.

¶24 Bailey argues that the circuit court erred when it concluded that he
failed to allege his reasoning for refusing the State’s final offer at trial. He argues
that his “reasoning would undoubtedly be explored at an evidentiary hearing, but
nothing in Frye requires its inclusion in his motion for relief.” Bailey
misunderstands Wisconsin’s postconviction pleading standard to be entitled to an
evidentiary hearing on an ineffectiveness claim. There is no question that Frye
establishes that trial counsel was deficient for failing to present the earlier offers.
But Frye does not negate Bailey’s need to provide material factual allegations to

8
Bailey appears to accept the State’s contention that the final offer was more favorable
than the May offer. Our examination of the record suggests that the May and final offers were
substantially similar, with undeveloped arguments about the impact of the misdemeanor counts.
We will not develop arguments for either party, and we proceed with the general acceptance that
the final offer was a better offer. See State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct.
App. 1992) (“We cannot serve as both advocate and judge.”).

11
No. 2023AP1436-CR

show both deficiency and prejudice to allow for meaningful review of his claim.
Allen, 274 Wis. 2d 568, ¶23. A Machner hearing is a forum to prove factually-
supported allegations, not a fishing expedition to discover them. Balliette, 336
Wis. 2d 358, ¶68. Bailey has not made the requisite factually-supported material
allegations.

¶25 We conclude that because Bailey has failed to make a showing of
prejudice in his ineffectiveness claim, his claim fails. Therefore, the circuit court
reasonably exercised its discretion when it denied his postconviction motion
without a hearing.

II. Fifth Amendment right to a fair trial

¶26 Bailey’s second argument is that the circuit court’s rejection of the
jury’s initial verdict denied him his Fifth Amendment right to a fair trial. He
argues that the court erred when it failed to question any jurors at the time about
their issues with the original verdicts, because under Wisconsin law, the court had
to determine if the juror’s statement was an “unambiguous dissent” or an
“ambiguous or ambivalent” statement under State v. Cartagena, 140 Wis. 2d 59,
62, 409 N.W.2d 386 (Ct. App. 1987). He argues that only in the case of an
unambiguous dissent may the court direct the jury to continue deliberating or else
declare a mistrial if further deliberations would be fruitless. He contends that
barring unambiguous dissent by a juror, the original verdict for count three should
have stood.

¶27 The circuit court concluded that its handling of the juror’s objection
to the verdicts as they were read and its subsequent actions to resubmit the verdict
forms to the jury and poll the jury were not in error. The court rejected Bailey’s
postconviction claim that his right to a fair trial has been violated.

12
No. 2023AP1436-CR

¶28 We review the circuit court’s actions here for an erroneous exercise
of discretion. State v. Raye, 2005 WI 68, ¶16, 281 Wis. 2d 339, 697 N.W.2d 407.
“An erroneous exercise of discretion may arise from an error in law or from the
failure of the circuit court to base its decisions on the facts in the record.” Id.

¶29 The State argues that Bailey has forfeited this argument by failing to
request jury polling or to object to the circuit court’s course of action at the time
the court stopped reading the verdicts and directed the jurors to continue
deliberations. See State v. Cydzik, 60 Wis. 2d 683, 696, 211 N.W.2d 421 (1973)
(holding that trial counsel’s failure to request jury polling when given the
opportunity waived the issue). We decline to apply the forfeiture rule and address
the merits, as did the circuit court in its postconviction decision. While we
acknowledge trial counsel could have raised a contemporaneous objection, we also
acknowledge that Bailey could have instead addressed the claim “in the context of
ineffective assistance of counsel.” State v. Counihan, 2020 WI 12, ¶¶28, 32, 390
Wis. 2d 172, 938 N.W.2d 530. Ultimately, we conclude that the circuit court’s
response to the juror’s concern about the verdict complied with Wisconsin law and
was not an erroneous exercise of direction.

¶30 “The right to trial by jury protected by the state constitution includes
the right to a unanimous verdict in criminal trials.” Raye, 281 Wis. 2d 339, ¶17.
“The right to poll the jury at the return of the verdict is a corollary to the
defendant’s right to a unanimous verdict.” State v. Behnke, 155 Wis. 2d 796, 801,
456 N.W.2d 610 (1990).

¶31 Under Wisconsin law, a circuit court has certain options when it is
not clear there is an unambiguous assent from all jurors to a verdict. If the court
determines that an assent or dissent to the verdict is ambiguous, the court may

13
No. 2023AP1436-CR

seek clarification from the juror, either in the courtroom, or outside of the presence
of the other jurors. Raye, 281 Wis. 2d 339, ¶35. If the court determines there is
unambiguous dissent, then the court may “send the jury back for continued
deliberations” or “determine that further deliberations would be fruitless and grant
a mistrial.” Id., ¶32.

¶32 The record reflects that the circuit court was informed in open court
that the verdicts the court was reading were not correct in some way. The court
made a thorough record that it was “immediately apparent that the forms that were
submitted were not the verdict of the jury.” The court noted it was “immediately
clear” that there was a problem, and while the court was not aware what was
incorrect, “it was completely clear that something was wrong.” The circuit court
is in a better position to assess demeanor in the courtroom than an appellate court
reviewing the transcript. See State v. Oswald, 2000 WI App 3, ¶5, 232 Wis. 2d
103, 606 N.W.2d 238 (stating that the circuit “court is in the unique position to
assess … demeanor and tone”). Under the facts and circumstances of this case,
the court did not need to conduct jury polling to determine that at least one juror
had an unambiguous disagreement with the verdicts as they were read. Therefore,
the court acted according to the law and reasonably exercised its discretion when it
returned the jury to deliberations with fresh verdict forms. Raye, 281 Wis. 2d 339,
¶¶32, 37.

¶33 Bailey appears aggrieved that the verdict on count three changed
from not guilty to guilty; however, “the verdict is the agreement which the jurors
reach in their deliberations and not the written paper which is filed if, through a
clerical error or otherwise, that does not express the jurors’ agreement.” Brophy v.
Milwaukee Elec. Ry. & Transp. Co., 251 Wis. 558, 566, 30 N.W.2d 76 (1947).
The circuit court’s decision to have the jurors return to deliberations ensured that

14
No. 2023AP1436-CR

the jury’s verdicts would be presented in court and the jurors polled on their
assent. Under these circumstances, the original written paper forms should not
supersede the juror’s unambiguous dissent made through the bailiff.

¶34 We conclude that Bailey’s Fifth Amendment right to a fair trial was
not violated by how the circuit court handled the juror’s dissent as the verdicts
were read. “[A]t any time before a verdict is received and properly recorded, a
juror may dissent although previously agreeing.” Cartagena, 140 Wis. 2d at 61.
Here, a juror had a bailiff interrupt the reading of the verdicts in open court. The
verdicts for all five counts had not yet been read into the record. We conclude that
the circuit court’s actions were not an erroneous exercise of discretion and in fact,
the court’s prompt reaction protected Bailey’s right to a fair trial.

CONCLUSION

¶35 For the reasons stated above, we conclude that Bailey’s claims fail.
He has not shown that he received ineffective assistance of counsel and his
conclusory allegations do not entitle him to a Machner hearing. We conclude that
the circuit court’s decision to return the jurors to deliberations after a juror
dissented as the verdicts were read were not an erroneous exercise of discretion.
Accordingly, Bailey’s Fifth Amendment right to a fair trial was not violated.

By the Court.—Judgment and order affirmed.

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

15