¶ 1. Lоuis Thornton appeals a judgment of conviction for robbery and forgery and an order denying his motion for postconviction relief. He claims he was denied his constitutional right to postconviction/appellate counsel in this, his "matter of right" postconviction proceedings and appeal. We conclude, however, that the record establishes that he knowingly and voluntarily waived his right to postcon-viction counsel. We also conclude that Thornton's second claim of error, that the ineffective assistance of his trial counsel rendered his no contest pleas invalid, is also devoid of merit. Aсcordingly, we affirm the appealed judgment and order.
BACKGROUND
¶ 2. In the circuit court cases underlying this consolidated appeal, the State charged Thornton with seven felonies, all carrying repeater enhancements. The parties entered into a plea agreement calling for the dismissal of all repeater allegations and all but two unenhanced counts, one each of robbery by use of force and uttering a forged writing. In return for Thornton's no contest pleas to the two offenses, the State joined Thornton's counsel in recommending a four-year prison term and five years of concurrent prоbation. The trial court accepted Thornton's pleas and imposed the jointly recommended sentence.
¶ 3. Thornton's trial counsel filed a notice of his intent to seek postconviction relief, and the State Public Defender appointed postconviction counsel for him. Counsel, however, after obtaining two extensions of time for filing a postconviction motion or notice of *163 appeal, moved this court to withdraw. 1 Counsel stated in the motion that he had informed Thornton of his conclusion that "there were no meritorious issues to raise on appeal," and told Thornton of "his options." After taking some time to consider his course оf action, and after receiving a letter and two form documents from counsel, Thornton signed and returned the following to his attorney:
REQUEST TO PROCEED PRO SE
I, Louis J. Thornton, hereby requests [sic] that my appointed appellate counsel, [name of counsel], seek to withdraw as my attorney in Dane County Cases #99 CF 399 and 99 CF 1436.
I understand that by proceeding as a pro-se (unrepresented) litigant, I will be solely responsible for complying with the rules of appellate procedure and will be solely responsible for the timely filing of briefs and motions. I understand that postconviction motions will have to comply with Rule 809.36(2), Stats, and that my briefs will have to conform to thе content, form, and length requirements of Rule 809.19, Stats. I further understand that I cannot expect successor appellate counsel to he appointed, even if I later decide that proceeding pro-se was a mistake.
*164 In making this decision to proceed pro-se, I have decided against the alternative of advising Attorney [name] to file a no-merit report. I realize that if Attorney [name] filed a no-merit report pursuant to Rule 809.32, Stats., I would have the opportunity to respond to the no-merit report and that the court would consider both the no-merit and my response in determining whether my case presented issues of merit.
I have carefully considered the situation, and it is my expressed desire that I be allowed to proceed pro-se. I make this decision freely, voluntarily, and intelligently.
/s/ Louis J. Thornton
Louis J. Thornton
05-11-63 Date of Birth
March 10, 2000 Date
OPTIONS
_ I hereby give my appellate counsel [name] permission to close my cases in regards to Dane County Case Nos. 99 CF 399 and 99 CF 1436.
I hereby request that my appellate counsel [name] file a no-merit brief in my cases, Dane County Case Nos. 99 CF 399 and 99 CF 1436.
L.T V I hereby request that my appellate counsel [name] seek permission to withdraw as my appellate counsel in Dane County Case Nos. 99 CF 399-and 99 CF 1436 in order that I may proceed pro-se.
*165 I have checked the appropriate option above. I make this decision freely, voluntarily, and intelligently.
/s/ Louis J. Thornton
Louis J. Thornton
05-11-63 Date of Birth
March 10, 2000 Date
¶ 4. Counsel also stated in his withdrawal motion his belief that Thornton "freely and voluntarily desires to proceed pro-se," and he requested on Thornton's behalf that additional time be granted for Thornton to move for postconviction relief or to commence an appeal. In an order granting the motion to withdraw and a sixty-day extension of time, we concluded that "[t]he documents submitted satisfy us that [Thornton] is waiving his constitutional right to appellate counsel knowingly and voluntarily."
¶ 5. Thornton subsequently wrote to the triаl court requesting the court to appoint him an attorney for postconviction proceedings. The record does not indicate what action, if any, was taken on this request, other than the forwarding of copies to the office of the State Public Defender and to the assistant district attorney who had prosecuted Thornton. Thornton next filed a pro se postconviction motion in the circuit court requesting that he be permitted to withdraw his no contest pleas. In it, he claimed, among other things, that his trial counsel had withheld certain information from him, thereby rendering his pleas unknowing and involuntary.
*166 ¶ 6. After filing his motion, Thornton аgain requested the trial court to appoint counsel for him. He forwarded with his request a copy of a letter from the office of the State Public Defender stating that it would not appoint counsel for Thornton because he "has waived his constitutional right to appellate counsel," citing this court's order to that effect.
¶ 7. The circuit court entered an order scheduling Thornton's motion to withdraw his plea for an eviden-tiary hearing. The order also stated that Thornton "should contact" the State Public Defender "and/or" the Legal Assistance for Inmates Program at the University of Wisconsin Law School "for legal assistance." Thornton apparently contacted the latter as there is correspondence in the record from the director of the program to the court indicating that, after speaking to a program attorney, "Mr. Thornton declined LAIP representation." Another letter from the State Public Defender reiterated to Thornton that because he had chosen "to dismiss the lawyer that this office appointed to handle your appeal, we will not appoint another lawyer for you on this matter."
¶ 8. Thornton renewed his request for court-appointed counsel several more times prior tо and at the commencement of the hearing on his motion. The trial court denied Thornton's request and conducted the hearing. Thornton was the lone witness, and the following summary by the prosecutor accurately characterizes his testimony:
In effect, your Honor .. . [a]ll of Mr. Thornton's claims, incoherent as they are, boil down to claims that [trial counsel] was ineffective. She didn't meet with him, she didn't talk with him, she didn't discuss, she didn't separate these two cases in her mind, she didn't provide *167 him with discovery, and that, therefore, his pleas were involuntary because he was confused by inadequate counsel.
The court denied Thornton's motion, conсluding that he had not satisfied his burden to establish grounds for withdrawing his pleas. The court stated that it remembered and had reviewed the transcript of Thornton's plea hearing, where "we took a lot of time ... to make sure that you understood everything, that you asked questions, that you had a chance to communicate."
¶ 9. Thornton appeals, pro se, the subsequently entered order denying his postconviction motion, as well as the judgment of conviction which preceded it.
ANALYSIS
¶ 10. In its response brief, the State has "reassembled" Thornton's arguments on appeal into two distinct claims of error: "(1) [violation of his right to counsel in his direct appeal"; and "(2) [p]lea withdrawal on grounds of ineffective assistance of trial counsel." Thornton did not file a reply brief, and he has therefore not objected to the foregoing statement of the issues raised in his appeal. We accept the State's framing of the issues as a fair characterization of the claims Thornton has presented for review. We address them in the order stated.
¶ 11. Whether Thornton was wrongly deprived of his constitutional right to counsel is a question of constitutional fact which we review de novo.
See State ex rel. Warren v. Schwarz,
¶ 12. A person convicted in Wisconsin of committing a crime has a constitutionally guaranteed right to appeal his or her conviction to this court. Wis. Const. art. I, § 21(1);
State v. Perry,
¶ 13. The State does not dispute that Thornton is indigent, and it concedes that the instant appeal, including the postconviction proceedings in the trial court which preceded it, constitutes Thornton's first effort to *169 obtain relief from his conviction under Wis. Stat. Rule 809.30 (1999-2000). 3 Thus, there is no dispute that Thornton was constitutionally entitled to he represented by counsel at public expense, unless he lawfully waived or for some reason forfeited that right.
¶ 14. The State argues that Thornton knowingly and voluntarily waived his right to postconviction counsel. A criminal defendant may waive his or her right to counsel in criminal trial court proceedings, provided the record reflects that the waiver is knowingly, intelligently and voluntarily made, and that the defendant is competent to proceed pro se.
State v. Klessig,
¶ 15. The United States Court of Appeals for the Seventh Circuit, however, has addressed the issue in a case involving a Wisconsin state court conviction and appeal.
See Oimen v. McCaughtry,
¶ 16. We "advised Oimen in writing that he might not be granted new appellate сounsel if [his present appellate counsel] were allowed to withdraw," and we ordered him to "advise the court whether, knowing that he may be forced to proceed pro se, he still wanted" his counsel removed. Id. at 811. Oimen responded in writing that he wanted to proceed in that fashion, and we granted his motion and his counsel's request. Id. We also decided not to consider the brief counsel had filed on Oimen's behalf, and both we and the State Public Defender declined to appoint Oimen successor counsel. Id. Oimen filed a pro se brief and we affirmed his conviction, as did the Wisconsin Supreme Court, where *171 Oimen was represented by a state public defender on the petition for review. Id.
¶ 17. The Seventh Circuit noted that Oimen was constitutionally entitled to counsel during proceedings in this court, and also when he was asked to decide whether to return to the circuit court for a Machner hearing. 5 Id. The court also pointed out that Oimen did not have to show that he suffered prejudice from his lack of counsel at that stage of the appeal process because it constituted a complete denial of representation. Id. The court determined that the dispositive inquiry was "whether the letters between Oimen and the court of appeals constitute a valid waiver of the right to сounsel." Id. It concluded that they did:
But what exactly does it take to effectuate a valid waiver of counsel on appeal? For reasons that are too clear to us to require explanation, appellate courts do not engage in face-to-face dialog with defendants. So a waiver on appeal must be accomplished through written communication. Here the court of appeals told Oimen that if he insisted on having [his counsel] withdraw he might not get a second attorney. It was clear that Oimen wanted substitute counsel, but he also clearly signaled his willingness to proceed pro se if [his present counsel] was his only оther choice. Especially given that [counsel]'s only perceived deficiency was that he would not do something which Oimen had no right to insist on, we find that Oimen validly waived his right to counsel.
Id. at 812.
*172 ¶ 18. The United States District Court for the Eastern District of Wisconsin has distinguished Oimen in a case where it concluded a defendant's right to postconviction/appellate counsel was violated. Wisconsin ex rel. Toliver v. McCaughtry, 72 E Supp. 2d 960, 977 (E.D. Wis. 1999). The District Court explained that United States "Supreme Court precedent does not require . . . any specific court procedure — such as a court hearing — for finding waiver," and that the Seventh Circuit's opinion in Oimen acknowledged the validity of written communications in establishing waiver in the appellate counsel context. Id. at 974. The court concluded in Toliver, however, that this court had "failed to use any means to provide Toliver with a warning or confirm that he was knowingly seeking to proceed pro se and had no misconceptions about whether substitute counsel would be appointed." Id. at 977.
¶ 19. The court also contrasted our actions in Toliver with the waiver of counsel procedure described in an unpublished decision of this court. The District Court's comments suggest that our actions in the unpublished case would pass constitutional muster:
[CJounsel informed the court [of appeals] that his client wished to proceed pro se. In a five-page order the court noted its independent responsibility to dеtermine that a waiver of counsel is made "knowingly, voluntarily and intelligently, as a deliberate choice to proceed pro se with an awareness of the difficulties such self-representation entails"; provided the appellant with information on how counsel could be valuable to him; informed him about his right to a no merit report; and, importantly, warned the appellant twice that it would not appoint successor counsel. The court allowed [the defendant] an opportunity to advise the clerk whether he still wished to discharge his attorney and indicated ■ that if [his] response left the court "in doubt as to his *173 understanding of the consequences of proceeding pro se," the court would not authorize counsel's withdrawal.
Id. at 978 (citations omitted).
¶ 20. On a distinct but relаted issue of how appointed counsel, after concluding there is no merit to further postconviction or appellate proceedings on behalf of a client, should document the client's decision to waive an appeal, the Wisconsin Supreme Court has declined "to make any particular method of documentation mandatory."
State ex rel. Flores v. State,
*174 We conclude that a criminal defendant may be informed about appellate rights through the use of written materials. Once so informed, the information need not be repeated verbally. Again, all that is required is that the proper information be conveyed.
Id. at 614.
¶ 21. The State offers the following synthesis of the foregoing decisions. Before a court may conclude that a criminal defendant has knowingly and voluntarily waived his or her right to counsel on direct appeal, it must satisfy itself that the defendant is aware: (1) of the Flores rights (to an appeal, to the assistance of counsel for the appeal, and to opt for a no-merit report); (2) of the dangers and disadvantages of proceeding pro se; 7 and (3) of the possibility that if appointed counsel is permitted to withdraw, successor counsel may not be appointed to represent the defendant in the appeal. We agree with the State that ensuring a defendant has received and understands the listed information is both necessary and sufficient to support a determination that the defendant's tendered waiver of counsel is knowing and voluntary.
¶ 22. We also conclude that, given the nature of proceedings in this court, the necessary "colloquy" may be accomplished via written communications with the
*175
defendant, initiated either by the court or by counsel seeking to withdraw. In the latter case, however, the court must satisfy itself as to the sufficiency of the content of counsel's documents and to their voluntary execution by the defendant. If counsel moves to withdraw prior to the filing of a notice of appeal, the motion must be directed to the circuit court (see footnotes 1 and 4), and a more traditional oral colloquy between defendant and the court should be employed.
See Klessig,
¶ 23. To the foregoing requirements for a valid waiver in all cases, we add the following whiсh may apply in some. If a waiver of appellate counsel is tendered to this court, and we determine that the correspondence among counsel, the defendant and the court (or anything in the record, if it has been filed) raises a question regarding the defendant's understanding of the necessary information, we may either deny the waiver or refer the matter to the circuit court to conduct a hearing on the matter. 8 The same would apply if we have reason to doubt the defendant's competency for self-representation. See id. at 212. On this latter point, we note that "persons of average ability аnd intelligence" should be permitted to represent themselves, and that we should only deny or delay the acceptance of an otherwise proper waiver if" 'a specific *176 problem or disability can be identified'" in the submissions before us. Id. (citation omitted).
¶ 24. We are satisfied that these requirements for a valid waiver of appellate counsel are met on the present record. The documents prepared by counsel and executed by Thornton, together with the statements in counsel's motion to withdraw (see ¶¶ 3-4), establish that Thornton received and acknowledged his understanding of the necessary information to render his waiver knowing and intelligent. Nothing in these materials calls into question the voluntariness of Thornton's decision to proceed pro se or his competence to represent himself. 9 Soon after we accepted his waiver *177 and permitted his counsel to withdraw, Thornton had a change of heart and actively pursued the appointment of successor counsel in the circuit court. That fact, however, does not undermine the validity of his initial, knowing and voluntary decision to represent himself in postconviction and appellate proceedings.
¶ 25. We turn next to Thornton's claim that the trial court erred in denying his request to withdraw his pleas on the grounds that his trial cоunsel rendered ineffective assistance prior to his pleading no contest. To prevail on a claim of ineffective assistance of counsel, a defendant must establish that his trial counsel's performance was deficient and that this performance prejudiced his defense.
See Strickland v. Washington,
¶ 26. Although the circuit court conducted an "evidentiary. hearing," the only testimony Thornton presented was his own. We must first decide, therefore, *178 if the trial court properly denied Thornton's motion without hearing from Thornton's trial counsel regarding the events which preceded Thornton's plea. (See footnote 5.) In effect, the dispositive question is: Did the trial court err in denying Thornton's postconviction motion without a (complete) evidentiary heаring? We conclude the court did not err.
¶ 27. A circuit court may deny a postconviction motion alleging ineffective assistance of counsel as a basis for plea withdrawal without conducting a
Mach-ner
hearing if the motion fails to allege sufficient facts which, if proven, would entitle the defendant to relief.
See State v. Bentley,
¶ 28. Moreover, as the State points out, thе plea bargain which Thornton and his counsel struck with the State reduced his potential maximum exposure from 102 years of imprisonment to twenty, and obtained for him a joint sentencing recommendation (which the court accepted) of only four years imprisonment with five years concurrent probation. Thornton's chief complaint against his trial counsel is that he lacked full knowledge of a possible defense against one or more of the forgery counts. He offers no explanation in his motion, however, as to why this knowledge (or longer discussions with his counsel) would have prompted him to reject an extremely favorable plea agreement which resolved all pending charges, and which he had apparently instructed his counsel to propose. (See footnote 10.)
¶ 29. Finally, as we have noted, Thornton testified at the postconviction hearing. His testimony essentially replicated the allegations in his motion. Just prior to the court's ruling, the prosecutor asked Thornton the following:
Q Your basic claim, if I'm understanding, Mr. Thornton, is that [trial counsel] did not pass on to you information about your case and that had you had that information at the time to think about it, to digest it, that you would not have entered your pleas. Have I got that essentially right?
Rather than agreeing with the prosecutor's potentially helpful summary, however, Thornton replied: "Essen *180 tially, no. My basic thing is that my attorney knew I wasn't guilty. You knew I wasn't guilty. Why would you convict an innocent man?"
¶ 30. Thornton's response arguably negates any claim of prejudice stemming from his counsel's alleged omissions because it disavows a causal connection between the omissions and Thornton's plea. His protestation of innocence, although a factor to be considered in certain plea withdrawal contexts, 11 does not cure Thornton's failure to allege objective facts from which a court cоuld conclude that he had suffered prejudice on account of his trial counsel's performance. In short, we agree with the trial court's conclusion that Thornton did not meet his burden to put forward sufficient factual allegations, which if true, would support withdrawal of his no contest pleas.
CONCLUSION
¶ 31. For the reasons discussed above, we affirm the appealed judgment and order.
By the Court. — Judgment and order affirmed.
Notes
At the time (January 2000), motions for withdrawal by postconviction or appellate counsel were routinely filed in this court regardless of whether a notice of appeal had been filed. Effective July 1, 2001, however, Wis. Stat. Rule 809.30(4)(a) directs that prior to the filing of a notice of appeal, withdrawal motions are to be filed in the circuit court, and after the filing of a notice of appeal, in this court. Additionally, we note that all references in this opinion to provisions of Wis. Stat. Rule ch. 809 are to the version effective on and after July 1, 2001.
The right in dispute in this appeal, that of an indigent defendant to have counsel provided at public expense for purposes of a first appeal as of right from a state criminal conviction, appears to be grounded in the due process clause of the Fourteenth Amendment, rather than in the Sixth Amendment, which applies to "criminal prosecutions."
See Douglas v. California,
All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted. As we have noted, however, our references to Wis. Stat. Rule ch. 809 are to the version effective as of July 1, 2001.
Thornton's postconviction/appellate counsel filed a "motion to withdraw as counsel." In this appeal we decide only whether we correctly concluded that Thornton knowingly and voluntarily waived his right to counsel. We do not address, because the issue is not before us, whether Wis. Stat. Rule 809.30(4), or other law, requires that a motion to withdraw be filed any time an attorney appointed by the State Public Defender terminates his or her postconviction/appellate representation of a defendant.
State v. Machner,
State ex rel. Flores v. State,
For example, a defendant might be advised "that there are established rules governing the manner in which a case is ... [appealed and argued on appeal] and that [the defendant] would be bound by them, despite his lack of formal training in the law."
See Pickens v. State,
This court does not engage in factual inquiries, but we may refer questions to the circuit court for the purpose of making factual determinations.
See
Wis. Stat. § 808.075(6) ("appellate court may remand the record to the circuit court for additional proceedings while the appeal is pending"); Wis. Stat. § 752.39;
State v. Knight,
Prior to his withdrawal, Thornton's postconviction counsel requested that we extend the time for filing a postconviction motion or notice of appeal, in part because of counsel's need to investigate Thornton's then recent claim "that he is suffering from a mental illness." We granted the request. Counsel's next submission to us was the motion to withdraw, which recited, among other things, that counsel had informed Thornton of counsel's "final conclusion ... that there were no meritorious issues tо raise on appeal," and that counsel believed "that defendant freely and voluntarily desires to proceed pro-se." We conclude from this that counsel could not substantiate Thornton's mental illness claim.
After we granted the withdrawal motion, Thornton communicated with this court on several occasions regarding his need for extensions of filing deadlines and his request for a fee waiver. In these communications Thornton neither raised any claim of mental illness nor gave any other indications that he was not competent to represent himself in the appeal.
Finally, we note that after the circuit court denied his postconviction motion and he filed his notice of appeal, Thornton moved this court for the appointment of counsel. The only grounds cited in Thornton's motion were the "inadequate law
*177
library" at his institution and his lack of legal training and experience. Absent from the motion was any claim of mental illness or other disability, or any indication that Thornton did not possess "average ability and intelligence."
See Klessig,
In addition to some vague assertions regarding trial counsel's failure to spend sufficient time discussing the plea agreement with him, and his consequent "loss [of] trust" in counsel and "panic," Thornton claims to not have been aware until after his plea that the victim of the forgery had written the prosecutor to acknowledge that she may have signed some of the checks thought to have been forged by Thornton. An attachment to his motion, however, which Thornton also subsequently proffered as evidence at the postconviction hearing, appears to be an excerpt from a letter to Thornton from his trial counsel in which counsel recites that she had discussed with Thornton (1) the State's proof problems on some of the forgery counts, and (2) her opinion that "a trial on the forgexy and vehicle charges had a reasonable chance of resulting in an acquittal." The excerpt also describes Thornton's active involvement in fashioning a plea bargain proposal which would greatly lessen his potential exposure to imprisonment, a proposal which was ultimately accepted by the State and the trial court.
When a court considers whether to permit a defendant to withdraw a guilty or no contest plea prior to sentencing, "[a]n assertion of innocence is important, but not dispositive."
State v. Leitner,