State v. Wayne L. Timm ( 2024 )

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.
January 19, 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. 2023AP351-CR Cir. Ct. No. 2016CF29
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
WAYNE L. TIMM,
DEFENDANT-APPELLANT.
APPEAL from a judgment and orders of the circuit court for Clark
County: TODD P. WOLF, Judge. Affirmed.
¶1 NASHOLD, J.1 Wayne Timm appeals a circuit court judgment
convicting him of misdemeanor theft and property damage charges after he
entered pleas of no contest. Timm also appeals the court’s order denying his
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2023AP351-CR
postconviction motion seeking to withdraw his pleas, and the court’s subsequent
order denying his motion to reconsider the postconviction order.2 Timm argues
that his judgment of conviction should be reversed because the court erroneously
denied his motion to suppress evidence derived from a search of his vehicle, and
he argues that the court erroneously denied his postconviction motion seeking a
hearing on the issue of whether his trial counsel was ineffective. I reject Timm’s
arguments and affirm.
BACKGROUND
¶2 In February 2016, the State filed a criminal complaint in Clark
County alleging that Timm was involved in various burglaries that occurred in
Clark County in April and May of 2015. Timm moved to suppress evidence
derived from a vehicle stop that occurred in April 2015 in neighboring Marathon
County. During that stop, law enforcement conducted a search of Timm’s vehicle
and discovered clothing and “burglarious tools.” Based in part on evidence
discovered in the vehicle search, law enforcement obtained a warrant to install a
GPS tracking device on Timm’s vehicle. The GPS data collected led law
enforcement to a remote area where they found evidence, such as empty money
bags, linked to the Clark County burglaries.
2
Timm’s Notice of Appeal includes the order denying his motion for reconsideration as
one of the orders he appeals. Also, in his statement of the issues, Timm identifies the following
as an issue presented on appeal: “Did the circuit court err in denying Timm’s … motion to
reconsider [the court’s] postconviction decision without a Machner hearing?” See State v.
Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979). However, Timm makes no
argument that the circuit court erred by denying his motion for reconsideration. Accordingly, I
do not further discuss the motion for reconsideration. See State v. Pettit, 171 Wis. 2d 627, 647,
492 N.W.2d 633 (Ct. App. 1992) (this court need not “review issues inadequately briefed”).
2
No. 2023AP351-CR
¶3 A suppression hearing was held on December 21, 2016. During the
hearing, the County offered the testimony of Chief Shawn Bauer and Officer
Travis Schuld of the Village of Spencer police department.
¶4 Chief Bauer testified to the following. Bauer became familiar with
Timm when he arrested Timm for burglary in Marathon County in 2010. At some
point during his investigations of Timm, Bauer interviewed Timm and Timm’s
brother, and during the interview, “one of the two brothers, I can’t recall [which],
… made mention that they’ve been involved in burglaries in the past and that they
weren’t going to stop doing this activity.” Bauer also learned that Timm had
previously been arrested for burglary in Marathon County in 2006.
¶5 In early 2015, Bauer learned that Timm had been released from
prison, and that Timm was driving a white Pontiac. Around April 2015, Bauer
became aware that burglaries were occurring in Marathon County and Clark
County. Based on Timm’s history of involvement in burglaries, and based on his
understanding that “burglars are known to keep doing that type of activity,” Bauer
suspected that Timm was involved in the local burglaries, and he instructed the
officers in his department to “[k]eep an eye out for the white Pontiac” that Timm
was driving.
¶6 Officer Schuld, a deputy in Bauer’s department, testified to the
following. Around April 2015, Schuld was instructed to “keep an eye out for a
white Pontiac Grand Prix” based on possible involvement with burglaries in the
local area. At approximately 11:40 p.m. on April 19, 2015, Schuld encountered
Timm’s white Pontiac in Marathon County. Using radar, Schuld determined that
the vehicle was going 31 miles per hour, which was above the posted 25 miles-
per-hour speed limit. Schuld initiated a traffic stop based on the speeding
3
No. 2023AP351-CR
violation. Schuld was aware that burglaries in the local area had been occurring at
around the time of night that the stop occurred.
¶7 During the stop, Schuld shined a flashlight into Timm’s vehicle. On
the back seat, the officer observed a tire iron with what “looked like a flat end
used to pry stuff open.”3 The tire iron was partially covered by a pair of jeans.
According to Schuld, it was unusual to see a tire iron on the seat of a vehicle.
¶8 Upon making contact with Timm, Schuld informed Timm that he
had been stopped for speeding, took possession of Timm’s driver’s license, and
instructed Timm to remain seated in the vehicle. Schuld contacted dispatch and
ran Timm’s license information, and subsequently learned that Timm was “on
probation for burglary and had a history of burglary charges.”
¶9 Based on the circumstances, Schuld decided to conduct a search of
Timm’s vehicle. The officer asked Timm for consent to search, and, according to
Schuld, Timm consented. During the search, Schuld found clothing and a canvas
bag containing “burglarious tools,” namely, “pry bars and also a bulk cutter.”
¶10 Timm did not testify during the suppression hearing. According to
his later postconviction submissions, Timm wanted to testify but his trial counsel
told him he could not, and if he had been allowed to testify, he would have said
that he did not consent to the search of his vehicle.
3
The parties appear to dispute on appeal whether Schuld testified that he saw one tool (a
tire iron with a “flat head”) or two tools (a tire iron as well as an additional tool with a “flat
head”), with the State suggesting there were two tools and Timm contending there was only one.
To the extent there is any ambiguity about Schuld’s testimony, it is resolved by the State’s
closing argument at the suppression hearing, during which the State conceded that Schuld saw a
single tool, a “tire iron” that resembled a “pry bar,” as distinguished from a “four-way tire iron
that looks like an X.”
4
No. 2023AP351-CR
¶11 In its closing argument, the State argued that the vehicle search was
supported by probable cause to believe that Timm’s vehicle would contain
evidence of a crime, based on the department’s knowledge of Timm’s history of
burglaries and Officer Schuld’s observation of the tire iron. The State also argued
that, regardless of whether there was probable cause, the search was lawful
because it was consensual. The circuit court determined that the search was lawful
based on Timm’s consent and denied Timm’s suppression motion on that basis.
The court did not address whether the search was supported by probable cause.
¶12 In 2019, Timm pled no contest to two misdemeanor theft charges
and three misdemeanor property damage charges, and the circuit court entered a
judgment of conviction. In 2022, Timm filed a postconviction motion seeking to
withdraw his no-contest pleas, arguing, among other things, that his trial counsel
was ineffective because counsel refused to permit Timm to testify in his defense at
the suppression hearing. The circuit court denied Timm’s postconviction motion
without granting him an evidentiary hearing. Timm appeals.
DISCUSSION
¶13 Timm contends that the circuit court erred by: (1) denying his
suppression motion, and (2) denying his postconviction motion without granting
him an evidentiary hearing.
I. Suppression Motion
¶14 This court follows a “two-step inquiry” in reviewing an order
granting or denying a motion to suppress evidence. State v. Howes, 2017 WI 18,
¶17, 373 Wis. 2d 468, 893 N.W.2d 812 (quoted source omitted). “First, we will
uphold the circuit court’s findings of fact unless they are clearly erroneous,” and a
5
No. 2023AP351-CR
finding “is clearly erroneous if it is against the great weight and clear
preponderance of the evidence.” State v. Anderson, 2019 WI 97, ¶20, 389
Wis. 2d 106, 935 N.W.2d 285. “Second, we review the application of
constitutional principles to those facts” de novo. Id.¶15 “The right to be secure against unreasonable searches and seizures is
protected by both the Fourth Amendment to the United States Constitution
and Article 1, Section 11 of the Wisconsin Constitution.” State v. Dearborn, 2010
WI 84, ¶14, 327 Wis. 2d 252, 786 N.W.2d 97. “A warrantless search is
presumptively unreasonable unless an exception to the warrant requirement
applies.” State v. Prado, 2021 WI 64, ¶38, 397 Wis. 2d 719, 960 N.W.2d 869.
One such exception exists “[w]hen police have probable cause to believe that a
vehicle contains evidence of a crime.” State v. Pozo, 198 Wis. 2d 705, 710, 544
N.W.2d 228 (Ct. App. 1995). “The quantum of evidence required to establish
probable cause to search is a ‘fair probability’ that contraband or evidence of a
crime will be found in a particular place.” State v. Hughes, 2000 WI 24, ¶21, 233
Wis. 2d 280, 291, 607 N.W.2d 621.
¶16 As noted above, although the State argued during the suppression
hearing that the search of Timm’s vehicle was supported by probable cause, the
circuit court did not address this argument and instead determined that the search
was lawful under a different exception to the warrant requirement: consent. See
State v. Artic, 2010 WI 83, ¶29, 327 Wis. 2d 392, 786 N.W.2d 430 (“One well-
established exception to the warrant requirement is a search conducted pursuant to
consent.”). Timm raises various challenges with respect to the consent
determination. Timm also argues that the court erroneously denied his
suppression motion because the search of his vehicle was not supported by
reasonable suspicion. Because I conclude that the vehicle search was supported
6
No. 2023AP351-CR
by the requisite level of suspicion and therefore lawful under the Fourth
Amendment, I do not address the consent issue. See Barrows v. American Family
Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508 (2013) (“An
appellate court need not address every issue raised by the parties when one issue is
dispositive.”).
¶17 Before turning to the parties’ arguments on reasonable suspicion, I
pause to address an unexplained discrepancy between the parties’ arguments
before the circuit court and those on appeal. Before the circuit court, the State
argued that the warrantless search of Timm’s vehicle was lawful because it was
supported by probable cause—which, as noted above, is generally the level of
suspicion required to support a warrantless search of a vehicle. In contrast, Timm
argued that the stop was not supported by probable cause. However, in Timm’s
appellant’s brief, he contends without explanation that the State need only meet
the lower standard of reasonable suspicion, rather than probable cause. The State
appears to likewise apply the reasonable suspicion standard. As explained below,
the parties’ reliance on the reasonable suspicion standard appears to be based on
2013 Wisconsin Act 79 (“Act 79”).
¶18 Under various statutes enacted by Act 79, the level of suspicion
required to support a warrantless search of a person, or any property under that
person’s control, is lower if that person is on “a specified probation, parole, or
extended supervision status[.]” Anderson, 389 Wis. 2d 106, ¶2 & n.2. Such a
search need only be supported by reasonable suspicion, id., ¶24, which is a lower
level of suspicion than probable cause, State v. Nimmer, 2022 WI 47, ¶5, 402
Wis. 2d 416, 975 N.W.2d 598. As noted above, Officer Schuld testified at the
suppression hearing that, prior to searching Timm’s vehicle, Schuld was aware
that Timm was “on probation for burglary.” Nevertheless, during the suppression
7
No. 2023AP351-CR
proceedings before the circuit court, neither party argued that Timm was subject to
Act 79, and instead the parties’ arguments focused on whether the vehicle search
was supported by probable cause. The court did not address whether probable
cause was the appropriate standard, instead deciding the suppression motion on
different grounds.
¶19 In light of the parties’ agreement as to the applicability of the
reasonable suspicion standard and the support for this standard found in Act 79, I
apply the reasonable suspicion, rather than the probable cause, standard here. I
now turn to the question of whether the vehicle search was supported by
reasonable suspicion.
¶20 Reasonable suspicion must be based on “specific and articulable
facts, together with rational inferences drawn from those facts, sufficient to lead a
reasonable law enforcement officer to believe that criminal activity may be afoot.”
State v. Amos, 220 Wis. 2d 793, 798, 584 N.W.2d 170 (Ct. App. 1998) (citing
Terry v. Ohio, 392 U.S. 1, 21-22 (1968)). “Reasonable suspicion is a fairly low
standard to meet,” Anderson, 389 Wis. 2d 106, ¶33, and “[t]he information
necessary to establish reasonable suspicion can be less in both content and
reliability than the information needed to establish probable cause,” State v.
Eason, 2001 WI 98, ¶19, 245 Wis. 2d 206, 629 N.W.2d 625. “The question of
what constitutes reasonable suspicion is a common sense test: under all the facts
and circumstances present, what would a reasonable police officer reasonably
suspect in light of his or her training and experience[?]” State v. Young, 212
Wis. 2d 417, 424, 569 N.W.2d 84 (Ct. App. 1997).
¶21 The State argues that the vehicle search was supported by reasonable
suspicion based on the collective knowledge of Chief Bauer and Officer Schuld.
8
No. 2023AP351-CR
See State v. Gant, 2015 WI App 83, ¶12, 365 Wis. 2d 510, 872 N.W.2d 137(under the collective knowledge doctrine, in determining whether a Fourth
Amendment intrusion is lawful, a court may take into account “both what the
investigating officer knew individually and the collective knowledge of the police
department”). Timm argues that the collective knowledge doctrine does not assist
the State because the facts known to the officers did not constitute reasonable
suspicion.4 I agree with the State.
¶22 Chief Bauer was aware that Timm had been convicted for burglary
in Marathon County on two prior occasions, and Officer Schuld was aware that
Timm was on probation for burglary. Although prior criminal history may not in
itself provide reasonable suspicion, it may be “considered as part of the totality of
circumstances a reasonable officer takes into account[.]” State v. Kutz, 2003 WI
App 205, ¶17 n.4, 267 Wis. 2d 531, 671 N.W.2d 660. Here, Timm’s prior history
of burglary convictions is particularly noteworthy when placed in context. Bauer
was aware that either Timm or Timm’s brother had said “they weren’t going to
stop” committing burglaries, that Timm had recently been released from prison,
and that there had been recent burglaries in the local area. Law enforcement could
reasonably infer, based on these facts, that Timm might have been involved in the
4
Timm also asserts in his reply brief that “neither the officer who made the stop nor the
chief of police who directed the officer to make the stop had knowledge to constitute probable
cause” to search the vehicle. To the extent that Timm intends to argue that the collective
knowledge doctrine only applies if at least one officer has personal knowledge of all facts that
constitute probable cause, I reject this argument because it is undeveloped. See Pettit, 171 Wis.
2d at 647. Moreover, Timm’s focus on whether an officer had “knowledge to constitute probable
cause” is inconsistent with Timm’s own arguments. As discussed above, Timm contends in his
appellant’s brief that the search of his vehicle need only be supported by reasonable suspicion,
rather than probable cause.
9
No. 2023AP351-CR
local burglaries. This information is properly considered in determining whether
the totality of the circumstances establishes reasonable suspicion.
¶23 In addition, Officer Schuld testified that the time of night that Timm
was pulled over, approximately 11:40 p.m., was “the time that the burglaries were
occurring.” “Depending on the specific context and types of potential criminal
activities at issue, the time of day may contribute to reasonable suspicion.” State
v. Meddaugh, 2022 WI App 12, ¶22, 401 Wis. 2d 146, 972 N.W.2d 181. Here,
the fact that Timm was on the road at the time when the local burglaries had been
occurring is a factor contributing to reasonable suspicion that Timm’s vehicle
might contain evidence related to the burglaries.
¶24 The most specific fact that the State relies upon to show reasonable
suspicion is that Officer Schuld observed a tire iron on the back seat of Timm’s
vehicle. Under the circumstances, law enforcement’s observation of the tire iron
tips the scales in favor of concluding there was reasonable suspicion for the search
of Timm’s vehicle.
¶25 Schuld testified that the tire iron had a “flat end used to pry stuff
open” and that “pry bars” were “burglarious tools.” Prying implements, such as
the tire iron Schuld observed, are well-established as tools commonly used in
burglaries. See, e.g., Dumas v. State, 90 Wis. 2d 518, 519, 280 N.W.2d 310 (Ct.
App. 1979) (defendant was convicted of “possession of burglarious tools” based
on his possession of a “tire iron and a crowbar”); see also State v. Lefler, 2013 WI
App 22, ¶¶12-13, 346 Wis. 2d 220, 827 N.W.2d 650 (officer’s observation of
“prying-type tools” in the defendant’s car during an OWI stop contributed to
probable cause to search the trunk for other “burglarious tools”). Schuld testified
that it was unusual to see a tire iron on the back seat of vehicle. Unusual facts,
10
No. 2023AP351-CR
though innocent by themselves, may, in context, “coalesce to add up to a
reasonable suspicion.” State v. Waldner, 206 Wis. 2d 51, 61, 556 N.W.2d 681(1996). Additionally, Schuld testified that the tire iron was partially covered by
clothing. An “apparent attempt to hide something” can contribute to the level of
suspicion required for a vehicle search. See State v. Grandberry, 156 Wis. 2d
218, 225, 456 N.W.2d 615 (Ct. App. 1990).
¶26 Timm contends that the tire iron was not significant because “there
was no indication that the tire iron was used in the commission of the burglary that
was being investigated.” Although the tire iron by itself may not have been
indicative of criminal activity, reasonable suspicion is based on “the totality of the
circumstances,” and is “a fairly low standard to meet.” Anderson, 389 Wis. 2d
106, ¶33. Here, the totality of circumstances provided law enforcement with
reasonable suspicion to search the vehicle. These circumstances include Timm’s
history of burglary convictions in the local area; that Timm’s release from prison
coincided with recent burglaries in that area; that Timm was on the road at the
time the local burglaries were being committed; and the officer’s observation of
the tire iron, a prying tool associated with burglaries, partially concealed in an
unusual place in Timm’s vehicle. Under the “common sense” reasonable
suspicion test, Young, 212 Wis. 2d at 424, it was reasonable under the totality of
the circumstances for law enforcement to suspect that evidence of the recent local
burglaries could be found in Timm’s vehicle.
¶27 Accordingly, I conclude the search of Timm’s vehicle was lawful
under the Fourth Amendment because law enforcement had reasonable suspicion
to search Timm’s vehicle. Therefore, the circuit court did not err in denying
Timm’s suppression motion.
11
No. 2023AP351-CR
II. Postconviction Motion
¶28 I turn to Timm’s argument that the circuit court erroneously denied
his postconviction motion alleging ineffective assistance of counsel.
¶29 The circuit court denied Timm’s postconviction motion without
holding a Machner hearing. See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d
905 (Ct. App. 1979); see also State v. Jackson, 2023 WI 3, ¶1, 405 Wis. 2d 458,
983 N.W.2d 608 (“A defendant is entitled to a Machner hearing if his
postconviction motion sufficiently alleges ineffective assistance of counsel and the
record fails to conclusively demonstrate that he is not entitled to relief.”). In
reviewing a circuit court’s decision denying a postconviction hearing without a
Machner hearing, this court evaluates two issues de novo: “whether the motion on
its face alleges sufficient material and non-conclusory facts that, if true, would
entitle the defendant to relief,” and “whether the record conclusively demonstrates
that the defendant is not entitled to relief.” Id., ¶8. If the postconviction motion
“does not raise facts sufficient to entitle the defendant to relief, or if it presents
only conclusory allegations, or if the record conclusively demonstrates that the
defendant is not entitled to relief,” the circuit court may deny the motion without a
hearing. Id. (quoting State v. Ruffin, 2022 WI 34, ¶28, 401 Wis. 2d 619, 974
N.W.2d 432). I need not address whether the record demonstrates that Timm is
not entitled to relief, because, for the reasons explained below, I conclude that
Timm’s postconviction motion fails to allege sufficient non-conclusory facts that,
if true, would entitle Timm to relief. See Barrows, 352 Wis. 2d 436, ¶9.
¶30 Timm seeks in his postconviction motion to withdraw his pleas of no
contest based on ineffective assistance of counsel. A no-contest plea is “the
functional equivalent of a plea of guilty.” State v. Higgs, 230 Wis. 2d 1, 9, 601
12
No. 2023AP351-CR
N.W.2d 653 (Ct. App. 1999). “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.” State v. Dillard, 2014
WI 123, ¶83, 358 Wis. 2d 543, 859 N.W.2d 44. “One way to demonstrate
manifest injustice is to establish that the defendant received ineffective assistance
of counsel.” Id., ¶84. To prevail in an ineffective assistance of counsel claim, a
defendant must prove both “that counsel’s performance was deficient,” and that
“the deficient performance prejudiced the defense.” Strickland v. Washington,
466 U.S. 668, 687 (1984). “If the defendant fails to adequately show one prong of
the Strickland test, we need not address the second.” State v. Elm, 201 Wis. 2d
452, 462, 549 N.W.2d 471 (Ct. App. 1996).
¶31 To satisfy the prejudice prong when “defense counsel’s failure to
litigate a Fourth Amendment claim competently is the principal allegation of
ineffectiveness,” the defendant must show, among other things, that the Fourth
Amendment claim is meritorious. Kimmelman v. Morrison, 477 U.S. 365, 375
(1986); see also State v. Jackson, 229 Wis. 2d 328, 344, 600 N.W.2d 39 (Ct. App.
1999) (a defendant alleging that counsel failed to litigate a suppression issue
competently must show that the suppression motion would have succeeded). To
satisfy the prejudice prong in the context of a postconviction motion to withdraw a
guilty plea, the defendant must show “‘that there is a reasonable probability that,
but for the counsel’s errors, he [or she] would not have pleaded guilty and would
have insisted on going to trial.’” State v. Bentley, 201 Wis. 2d 303, 312, 548
N.W.2d 50 (1996) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). As in other
contexts, a defendant must make this showing when he or she seeks to withdraw a
guilty plea based on trial counsel’s alleged failure to litigate a suppression motion
competently. See Jackson, 229 Wis. 2d at 343-44.
13
No. 2023AP351-CR
¶32 Timm argues that his trial counsel’s performance was deficient and
prejudicial because counsel would not permit him to testify at the suppression
hearing. According to Timm, he would have testified that he did not consent to
the search of his vehicle, and because he was not permitted to testify, he was
unable to present crucial evidence to counter Officer Schuld’s testimony that
Timm consented.5 I need not address whether Timm has alleged facts to show that
trial counsel’s performance was deficient, because I conclude that Timm cannot
show that Timm was prejudiced by the allegedly deficient performance.
¶33 As explained above, law enforcement’s search of Timm’s vehicle
was supported by reasonable suspicion. Therefore, the search was lawful under
the Fourth Amendment even if Timm did not consent to it, and Timm’s
suppression motion is not meritorious. Thus, he cannot show that he was
prejudiced by trial counsel’s alleged failure to litigate the suppression motion
competently. See Kimmelman, 477 U.S. at 375. Accordingly, Timm was not
prejudiced by trial counsel’s allegedly deficient performance.
5
Timm also asserts in his appellant’s brief that he would have testified that he was not
speeding. Timm’s implication may be that he was prejudiced because he was unable to offer
testimony to contradict the State’s argument that there was reasonable suspicion for the initial
stop of his vehicle. However, Timm only expressly argues on appeal that he was prejudiced by
his trial counsel’s “failure to counter the alleged consent.” To the extent that Timm intends to
argue that he was also prejudiced because trial counsel prevented him from testifying that he was
not speeding, I reject this argument as undeveloped. See Pettit, 171 Wis. 2d at 647 (this court
need not address undeveloped arguments). Timm also alludes to a video, never offered by his
trial counsel at the suppression hearing, which, according to Timm, would have bolstered his
testimony that he was not speeding. This video is not in the appellate record. To the extent that
Timm intends to argue that he was prejudiced by trial counsel’s failure to introduce the video at
the suppression hearing, I reject this argument because it is undeveloped, see id., and also because
it relies on materials not in the appellate record, see id. at 646 (“An appellate court’s review is
confined to those parts of the record made available to it.”).
14
No. 2023AP351-CR
¶34 Timm’s prejudice argument fails for another independent reason. In
Timm’s postconviction motion and his appellate briefing, he argues that, absent
trial counsel’s alleged errors, he might have prevailed in the suppression motion.
However, this is not the sort of prejudice that Timm is required to show. As
stated, because Timm’s postconviction motion seeks to withdraw pleas of no
contest (the functional equivalent of guilty pleas), his motion “must allege facts to
show ‘that there is a reasonable probability that, but for the counsel’s errors, he
would not have pleaded guilty and would have insisted on going to trial.’”
Bentley, 201 Wis. 2d at 312 (quoting Hill, 474 U.S. at 59).
¶35 Even if Timm’s trial counsel had prevailed in establishing that the
search of Timm’s vehicle violated the Fourth Amendment, it does not necessarily
follow that Timm would have insisted on going to trial. The State might have had
a strong case against Timm based on other evidence not subject to the suppression
motion, leading him to decide to plead no contest regardless. Timm fails to
identify any facts alleged in his postconviction motion showing that the evidence
discovered in the vehicle search (clothing and a canvas bag containing
“burglarious tools”) was a crucial part of the State’s case, or that any other
evidence the State later obtained pursuant to the GPS warrant was derivative of the
challenged search.6 In fact, Timm fails to identify any facts alleged in his
postconviction motion or make any argument pertaining to the importance of the
6
During the suppression hearing, the parties disputed whether other evidence obtained
via a GPS warrant was ultimately derivative of the challenged vehicle search. Because the circuit
court denied Timm’s suppression motion, it declined to decide this issue. Timm makes no
argument that the vehicle search led to the State obtaining further evidence against him via the
GPS warrant, either in his postconviction motion or on appeal.
15
No. 2023AP351-CR
challenged evidence to his decision to plead no contest.7 Thus, Timm has failed to
allege facts demonstrating that, absent trial counsel’s purported errors, there was a
reasonable probability he would have insisted on going to trial rather than plead no
contest.
¶36 Accordingly, I conclude that Timm has failed to make the required
showing that he was prejudiced by trial counsel’s alleged deficiencies, and Timm
has not shown that the circuit court erred by denying his postconviction motion
without a hearing.
CONCLUSION
¶37 For all of these reasons, I affirm the circuit court’s judgment of
conviction, and affirm the court’s orders denying Timm’s postconviction motion
and his motion for reconsideration.
By the Court.—Judgment and orders affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.
7
In his postconviction motion, Timm asserts that losing the suppression motion
“ultimately led him to enter pleas of no contest.” However, this conclusory statement is
insufficient because it is unsupported by any alleged facts. See State v. Jackson, 2023 WI 3, ¶8,
405 Wis. 2d 458, 983 N.W.2d 608 (a postconviction motion must allege “material and non-
conclusory facts” showing that the defendant is entitled to relief). Moreover, Timm does not
revive this issue on appeal. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491,
588 N.W.2d 285 (Ct. App. 1998) (“[A]n issue raised in the trial court, but not raised on appeal, is
deemed abandoned.”).
16