State v. Michael L. Nelson

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 9, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP1133-CR Cir. Ct. No. 2020CM539

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MICHAEL L. NELSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Kenosha County: LARISA V. BENITEZ-MORGAN, Judge. Affirmed.

¶1 KORNBLUM, J.1 Michael L. Nelson appeals from a judgment
convicting him of disorderly conduct with use of a dangerous weapon, domestic

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2021AP1133-CR

abuse, and operating a firearm while intoxicated and from an order denying his
motion for postconviction relief. Nelson raises one issue on appeal: he is entitled
to an evidentiary hearing on his postconviction motion to withdraw his guilty
pleas. The basis of this motion is his claim that his trial counsel was ineffective
because counsel gave him incorrect legal advice, that “pleading to disorderly
conduct could result in a temporary rather than permanent loss of his gun rights.”
We conclude that Nelson’s postconviction motion failed to allege sufficient facts
demonstrating deficient performance by trial counsel because the advice correctly
stated the law. Accordingly, we affirm the circuit court’s order denying the
motion without a Machner2 hearing.

BACKGROUND

¶2 According to the criminal complaint, on April 26, 2020, law
enforcement responded to Nelson’s home following a 911 call from Nelson’s wife.
She alleged that Nelson “was intoxicated and beating up his adult children.”
When police arrived, Nelson was being restrained by his daughter and son, and he
“appeared to be highly intoxicated and … was slurring his words.” He informed
the officers that he had a gun, and officers confirmed that fact. A struggle ensued
while officers attempted to simultaneously disarm Nelson and put him in
handcuffs, with Nelson resisting officers’ commands and stating that “he was not
going to be handcuffed and that he was not going to go with [o]fficers.” While
officers were unaware of the status of the firearm and with Nelson continuing to
resist, the officers were forced to use an “Electronic Control Device” on Nelson

2
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2021AP1133-CR

multiple times while restraining him on the ground. The officers eventually took
Nelson into custody.

¶3 Nelson’s wife and children thereafter gave statements to police.
Each reported a verbal altercation. Nelson’s wife explained that Nelson was being
“verbally aggressive toward her for no reason at all,” so she removed herself from
the situation by going into the bathroom. Nelson’s son and daughter told officers
that the “incident was only verbal,” although his wife reported that she “heard
what sounded like a loud slap and so she left the bathroom whereupon [she] saw
[the daughter] holding her face and crying.” Nelson’s son and daughter reported
that things escalated when Nelson “pulled his handgun from his waistline and
began to swing his hand around with the loaded gun” while stating that “he wanted
to ‘shoot’ himself and that if anyone in the house called the police, he would kill
himself.” Nelson’s wife then called 911.

¶4 The State charged Nelson with disorderly conduct with use of a
dangerous weapon, domestic abuse; possession of a firearm while intoxicated; and
resisting an officer. Pursuant to a plea agreement, Nelson pled guilty to the
charges of disorderly conduct with a dangerous weapon and possession of a
firearm while intoxicated. The charge for resisting an officer was dismissed and
read in. Nelson pled guilty to disorderly conduct as alleged in the complaint: that
he “did engage in violent, abusive, indecent, profane, boisterous, unreasonably
loud or otherwise disorderly conduct.” In the plea colloquy, the court reviewed
the specific allegations in the complaint: “For the crime of disorderly conduct,
domestic abuse, use of a dangerous weapon, the elements that the State would
have had to have shown is that you engaged in violent, abusive, indecent, profane,
boisterous, unreasonably loud or otherwise disorderly conduct.” Nelson did not

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No. 2021AP1133-CR

object to using the complaint as the factual basis. After a plea colloquy, the circuit
court accepted Nelson’s plea.

¶5 The circuit court withheld sentence and placed Nelson on probation
for two years on each count, with six months’ conditional jail time for the
disorderly conduct charge and three months’ conditional jail time for the operating
a firearm while intoxicated charge, to be served concurrently. As a condition of
his probation, the court ordered that Nelson was not to possess any firearms.

¶6 Nelson filed a motion for postconviction relief. He sought to
withdraw his guilty plea based on ineffective assistance of counsel, arguing that
trial counsel performed deficiently by providing him incorrect information
pertaining to the collateral consequences of his plea. Nelson stated that he would
testify to the following: “His trial attorney advised him that pleading guilty to
disorderly conduct could have a temporary rather than permanent effect on his
right to possess a firearm.” He further alleged that trial counsel’s deficient
performance prejudiced him as

Mr. Nelson has been a longtime gun owner and has
worked as a security guard. As a result, it was and is
important to Mr. Nelson that he not permanently lose his
right to possess a firearm.

If trial counsel had not misinformed Mr. Nelson
regarding the possibility that a disorderly conduct
conviction would result in a permanent loss of his right to
possess a firearm, he would not have pled guilty and
instead would have insisted on going to a jury trial.

¶7 The circuit court scheduled a Machner hearing but ultimately denied
Nelson’s motion without accepting testimony. At the hearing, the State
immediately raised the issue of “the sufficiency of the motion,” explaining that the
advice “as that is phrased” in the motion “appears to be correct.” Both parties

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No. 2021AP1133-CR

agreed that under the applicable state and federal law, it is not certain that
Nelson’s conviction would result in his inability to possess a firearm under federal
law. Thus, as the State observed, “his attorney expressed uncertainty about that
issue,” which the court suggested is “correct advice. It could. Maybe it couldn’t.”
Nelson argued that trial counsel’s statement meant “that it would potentially have
a temporary effect [and] that it wouldn’t have a permanent effect.” The circuit
court disagreed, noting that Nelson was “add[ing] a word” and finding that the
motion had not been properly pled. The court indicated that Nelson was welcome
to refile his motion as if trial counsel had “told him under no circumstances are
you going to permanently lose your license, then … that’s a different situation.”
Nelson appeals.

DISCUSSION

¶8 On appeal, Nelson argues that he is entitled to an evidentiary hearing
on his postconviction motion to withdraw his guilty pleas, based on incorrect
information about potential collateral consequences of a guilty plea. We thus go
through a multi-step process of analysis. “To withdraw a guilty plea after
sentencing, a defendant must show by clear and convincing evidence that a refusal
to allow withdrawal of the plea would result in manifest injustice, that is, that there
are ‘serious questions affecting the fundamental integrity of the plea.’” State v.
Dillard, 2014 WI 123, ¶36, 358 Wis. 2d 543, 859 N.W.2d 44 (citation omitted);
State v. Bentley, 201 Wis. 2d 303, 311, 548 N.W.2d 50 (1996).

¶9 A defendant may demonstrate manifest injustice by establishing that
he or she received ineffective assistance of counsel. Dillard, 358 Wis. 2d 543,
¶84. To do so, the defendant must show (1) that counsel’s performance was
deficient and (2) that the deficient performance prejudiced the defendant. Id., ¶85;

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No. 2021AP1133-CR

Strickland v. Washington, 466 U.S. 668, 687 (1984). “To prove deficient
performance, a defendant must show specific acts or omissions of counsel that are
‘outside the wide range of professionally competent assistance.’” State v.
Arredondo, 2004 WI App 7, ¶24, 269 Wis. 2d 369, 674 N.W.2d 647 (citation
omitted). To prove prejudice, there must be “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Dillard, 358 Wis. 2d 543, ¶95 (citation omitted). Where the issue
involves a plea withdrawal, a defendant must establish a reasonable probability
that he or she would not have pled and would have gone to trial but for counsel’s
ineffective performance. Id., ¶96. If the defendant fails on one prong, we need
not examine the other prong. Strickland, 466 U.S. at 697.

¶10 A defendant is not automatically entitled to an evidentiary hearing
on his or her postconviction motion. Bentley, 201 Wis. 2d at 309. The circuit
court is required to hold an evidentiary hearing only if the defendant alleges
“sufficient material facts that, if true, would entitle the defendant to relief.” State
v. Allen, 2004 WI 106, ¶14, 274 Wis. 2d 568, 682 N.W.2d 433. Whether a
defendant’s motion “on its face” alleges sufficient material facts to entitle that
defendant to relief is a question of law that we review de novo. Id., ¶9. If, on the
other hand, the defendant’s 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 may either grant or deny a hearing in its discretion. Id. We review this
decision “under the deferential erroneous exercise of discretion standard.” Id.

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No. 2021AP1133-CR

Legal Principles Regarding Firearm Possession Underlying Nelson’s Claim

¶11 Nelson argues that his attorney’s advice was legally deficient
because “his trial attorney advised him that pleading guilty to disorderly conduct
could result in a temporary rather than permanent loss of his right to possess a
gun.” According to Nelson, “[t]his advice from trial counsel clearly demonstrates
deficient performance because it is legally incorrect—Mr. Nelson’s disorderly
conduct conviction would likely result in a permanent prohibition on his ability to
possess a gun and obtain a CCW license [(carrying a concealed weapon)], and the
prohibition could not be temporary.”

¶12 We begin by examining Nelson’s assumption that the collateral
consequence of his guilty plea “would likely” be a permanent bar to possessing a
firearm. This is not a correct assumption, as we explain.

¶13 Whether Nelson’s conviction of the misdemeanor crime of
disorderly conduct in the context of domestic violence, under WIS. STAT. § 947.01,
would result in a permanent prohibition on possessing firearms depends on the
specific nature of the conviction and an interplay between state and federal law.
Under federal law, 18 U.S.C. § 922(g)(9), it is “unlawful for any person … who
has been convicted in any court of a misdemeanor crime of domestic violence …
[to] possess in or affecting commerce, any firearm or ammunition.” A
“misdemeanor crime of domestic violence” is defined by statute as an offense that

(i) is a misdemeanor under Federal, State, or Tribal law;
and

(ii) has, as an element, the use or attempted use of
physical force, or the threatened use of a deadly weapon,
committed by a current or former spouse, parent, or
guardian of the victim, by a person with whom the victim
shares a child in common, by a person who is cohabiting

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No. 2021AP1133-CR

with or has cohabited with the victim as a spouse, parent, or
guardian, or by a person similarly situated to a spouse,
parent, or guardian of the victim.

18 U.S.C. § 921(a)(33)(A). Under state law, WIS. STAT. § 175.60(3)(b) provides
that the Department of Justice shall not issue a CCW license to an individual who
“is prohibited under federal law from possessing a firearm.”

¶14 Nelson’s disorderly conduct conviction meets the first prong because
it is a misdemeanor under Wisconsin law. We then turn to the second prong,
whether the misdemeanor meets the definition of “crime of domestic violence.”
This court previously considered this question in Evans v. DOJ, 2014 WI App 31,
¶5, 353 Wis. 2d 289, 844 N.W.2d 403 (citation omitted), in which we explained
that the second prong of the definition itself has two parts: (1) there must be an
element of “the use or attempted use of physical force” and (2) it must be
committed by a person who has a domestic relationship with the victim.3 See also
United States v. Hayes, 555 U.S. 415, 426 (2009).

¶15 In Evans, we considered whether use of physical force was an
element of a disorderly conduct conviction for the purposes of 18 U.S.C.
§ 921(a)(33)(A). Evans, 353 Wis. 2d 289, ¶2. Observing that the first element of
disorderly conduct, pursuant to WIS. STAT. § 947.01(1), “allows for alternatives,”
we noted that Evans, unlike Nelson, was convicted of disorderly conduct based on
“violent, abusive and otherwise disorderly conduct” and “‘violent’ conduct
necessarily implies the use of physical force.” See Evans, 353 Wis. 2d 289, ¶¶9,
10, 12 (emphasis added). We explained that the use of the conjunctive phrasing

3
The conviction in this case clearly meets the second part of the test because the victims
were his wife and adult children.

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No. 2021AP1133-CR

was “significant” and suggested that the case may have been decided differently
“if the record showed that he entered a plea based on an element of violent,
abusive, or otherwise disorderly conduct.” Id., ¶¶12 n.3, 20. In Evans, the court
based its decision solely on the criminal complaint and the plea colloquy transcript
to determine “which alternative type of disorderly conduct formed the basis for
Evans’ conviction.” Id., ¶19. The court did not consider the actual conduct
underlying the charge. Id. Because Evans’ conviction was based on “violent,
abusive, and otherwise disorderly conduct,” the conviction qualified under Federal
law as a crime having an element of physical force. Id., ¶2 (citation omitted).

¶16 The Evans court specifically did not reach the issue of what the
result would be if Evans had pled guilty to a disorderly conduct crime charged in
the disjunctive. Id., ¶20. Here, the parties agree that Nelson pled guilty to a crime
charged in the disjunctive (where the term “or” was used) rather than the
conjunctive (where the term “and” was used, as in Evans). The criminal
complaint defined Nelson’s offense as “engag[ing] in violent, abusive, indecent,
profane, boisterous, unreasonably loud or otherwise disorderly conduct.”
(Emphasis added.) The parties also agree that there is no other binding authority
on point. Even Nelson acknowledges that the consequences of his disorderly
conduct conviction are by no means certain. At most, he can only argue that the
conviction “would likely” result in a bar on owning a firearm. His support
depends on looking at the underlying facts in the criminal complaint. However, it
is clear that in Evans, the charge, not the facts of the underlying complaint,
governed the determination of whether the crime was a crime of violence. Id.,
¶¶19, 22. Thus, under the applicable case law, the parties acknowledge that it is
unclear whether Nelson’s disorderly conduct conviction would permanently
prevent him from possessing a firearm.

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No. 2021AP1133-CR

The Circuit Court Did Not Err in Refusing a Machner Hearing

¶17 All Nelson alleges in support of his postconviction motion is that
trial counsel advised him that pleading guilty to disorderly conduct “could result in
a temporary rather than permanent loss of his right to possess a gun.” This advice
is not “legally incorrect.” The law is not clear on the collateral consequences of a
conviction such as this one.

¶18 The fact that uncertainty exists regarding the outcome of Nelson’s
future gun possession rights does not mean that trial counsel was ineffective. Any
misunderstanding on Nelson’s part cannot clearly be labeled a misstatement of the
law. See Birts v. State, 68 Wis. 2d 389, 397, 228 N.W.2d 351 (1975) (“The
important point here is that the alleged misunderstanding concerned indirect
consequences of the plea, defendant’s parole rights, and that absolutely no
commitment was made as to those rights…. His beliefs concerning his release
time were the product of his own mind and entirely unexpressed in the plea
bargaining process.”).

¶19 Nelson did not argue that trial counsel told him that there would be
no permanent impact on his gun rights, which, as the circuit court observed, would
indeed have been a misstatement of the law and grounds for a Machner hearing.4
See State v. Rodriguez, 221 Wis. 2d 487, 498-99, 585 N.W.2d 701 (Ct. App.
1998) (collecting cases addressing incorrect information giving rise to ineffective

4
Nelson now raises the claim that trial counsel’s advice pertained to whether the federal
firearm ban itself could be temporary rather than permanent—if prohibited from possessing a
firearm under 18 U.S.C. § 922(g)(9) that determination would not be temporary. This is a new
argument raised for the first time on appeal. As such, we will not consider it. State v. Dowdy,
2012 WI 12, ¶5, 338 Wis. 2d 565, 808 N.W.2d 691 (an issue not raised in the circuit court will
not be considered for the first time on appeal).

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No. 2021AP1133-CR

assistance of counsel); see also State v. Brown, 2004 WI App 179, ¶8, 276
Wis. 2d 559, 687 N.W.2d 543 (noting that Wisconsin courts have permitted
defendants to withdraw pleas based on being “misinformed of [the]
consequences”).

¶20 In conclusion, the circuit court correctly exercised discretion in not
granting a Machner hearing because trial counsel’s advice was not legally
incorrect. Thus, based on the information presented, Nelson has not raised facts
sufficient to establish that trial counsel performed deficiently. Accordingly, we
need not reach the issue of prejudice. The circuit court did not err in denying
Nelson’s postconviction motion.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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