                                                          2016 WI 46

                  SUPREME COURT           OF   WISCONSIN
CASE NO.:              2013AP2316-CR
COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent-Petitioner,
                            v.
                       Richard J. Sulla,
                                 Defendant-Appellant.

                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                         (Reported at 364 Wis. 2d 405, 866 N.W.2d 404)
                                  (Ct. App. 2015 – Unpublished)

OPINION FILED:         June 14, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         January 20, 2016

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Jefferson
   JUDGE:              David J. Wambach

JUSTICES:
   CONCURRED:          BRADLEY, A. W., J. and ABRAHAMSON, J. concur
                       (Opinion filed).
  DISSENTED:
  NOT PARTICIPATING:


ATTORNEYS:
       For      the    plaintiff-respondent-petitioner,   the   cause   was
argued by Anne C. Murphy, assistant attorney general, with whom
on the briefs was Brad D. Schimel, attorney general.




       For the defendant-appellant there was a brief by Scott A.
Szabrowicz, Greenfield.         Oral argument by Scott A. Szabrowicz.
                                                                                   2016 WI 46
                                                                           NOTICE
                                                           This opinion is subject to further
                                                           editing and modification.   The final
                                                           version will appear in the bound
                                                           volume of the official reports.
No. 2013AP2316-CR
(L.C. No.    2011CF221)

STATE OF WISCONSIN                                     :              IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent-Petitioner,
                                                                                FILED
      v.                                                                   JUN 14, 2016

Richard J. Sulla,                                                             Diane M. Fremgen
                                                                           Clerk of Supreme Court

              Defendant-Appellant.




      REVIEW of a decision of the Court of Appeals.                            Reversed.



      ¶1      MICHAEL     J.    GABLEMAN,       J.      This     is    a       review    of    an

unpublished decision of the court of appeals,1 which reversed the

Jefferson County Circuit Court's2 order denying Richard Sulla's
("Sulla")      postconviction       motion        to    withdraw        his      no     contest

pleas.

      ¶2      This   case      requires    us     to    examine       the      circumstances

under       which    a    circuit         court        may     deny        a     defendant's


      1
       State v. Sulla, No.2013AP2316-CR, unpublished                                  slip    op.
(Wis. Ct. App. May 21, 2015) (per curiam).
      2
       The Honorable David J.                     Wambach         presided          over      the
postconviction motion hearing.
                                                                   No.       2013AP2316-CR



postconviction    motion       for    plea      withdrawal      without      holding     an

evidentiary hearing. Specifically, we consider whether a circuit

court   may,   without     holding         an    evidentiary      hearing,        deny   a

defendant's    motion     to    withdraw        his    plea     when   the      defendant

alleges    that   his     plea       was     not   knowing,       intelligent,          and

voluntary because he did not understand the effect a read-in

charge could have at sentencing.

    ¶3      The   State    brought         four       charges    against        Sulla    in

Jefferson County relating to two burglaries and an arson. Sulla

and the State entered into a plea agreement, under which Sulla

would plead no contest to Counts 1 and 3, while Counts 2 and 4

would be dismissed and read into the record for purposes of

sentencing and restitution.3 Prior to entering his plea, Sulla

read and signed a Plea Questionnaire/Waiver of Rights form, and

the circuit court held a plea hearing.4 At the plea hearing, the

    3
        The State charged Sulla with the following:

          1. Count 1: Burglary, arming oneself with a dangerous
             weapon,   contrary to   Wis.  Stat.  §§ 943.10(2)(b)
             and 939.62(1)(c)

          2. Count 2: Conspiracy to commit arson, contrary to Wis.
             Stat. §§ 943.02(1)(a), 939.31, and 939.62(1)(c)

          3. Count 3: Burglary,     contrary     to                      Wis.       Stat.
             §§ 943.10(1m)(a) and 939.62(1)(c); and

          4. Count 4: Operating a motor vehicle without the
             owner's consent, as a party to a crime, contrary to
             Wis. Stat. §§ 943.23(2), 939.05, and 939.62(1)(b).
    4
       The Honorable Jacqueline R. Erwin presided over the plea
hearing and the sentencing hearing.


                                            2
                                                                         No.    2013AP2316-CR



court      concluded     that       Sulla's    pleas     were     made    in    a    knowing,

intelligent, and voluntary fashion, and it ordered judgments of

guilt be entered accordingly. The court then held a sentencing

hearing and, after extensive discussion, sentenced Sulla to 15

years      imprisonment,            consisting      of      7.5    years       of    initial

confinement and 7.5 years of extended supervision for Count 1,

and 5 years imprisonment, consisting of 2.5 years of initial

confinement and 1.5 years of extended supervision for Count 3.

The court ordered the sentences to run consecutively to one

another and to all other sentences.

      ¶4      Sulla      filed       a     motion     for    postconviction          relief,

seeking to withdraw his no contest pleas on the basis that his

pleas were not made in a knowing, intelligent, and voluntary

fashion. Sulla claimed that his pleas were unknowing because he

"did not understand that for purposes of the read-in charge, he

would effectively be considered to have committed the offense."

To support his motion, Sulla filed an affidavit, which stated,

in pertinent part, "[M]y attorney [] told me that agreeing to
the read-in offense of arson was not admitting guilt and that it

was just something the Court would 'look at' at sentencing. I

did not understand and my Attorney did not explain the effect

that a read-in offense has . . . ." In short, Sulla claimed that

he   was    misinformed        by    his    attorney      and     that   because      he   was

misinformed,        he   did     not       understand       the    effect      the   read-in

charges would have at sentencing.

      ¶5      The   postconviction            court      denied     Sulla's     motion     to
withdraw his plea without first holding an evidentiary hearing.
                                               3
                                                                         No.     2013AP2316-CR



The    court    concluded      that      Sulla       was     not     entitled         to    an

evidentiary hearing on his motion because his affidavit failed

to allege sufficient facts which, if true, would entitle Sulla

to    relief.   In    addition,    the     postconviction           court        found     that

Sulla was not entitled to an evidentiary hearing because the

record conclusively demonstrated that Sulla was not entitled to

relief. The court of appeals reversed, concluding that Sulla's

motion did allege sufficient facts and further concluding that

Sulla was entitled to an evidentiary hearing because the record

did    not   conclusively      demonstrate          that     Sulla       understood         the

effect of the read-in charges at sentencing. The State appealed.

       ¶6     The    issue   before   us       is    whether       the     postconviction

court was required           to hold an evidentiary hearing before it

determined whether Sulla had entered his pleas in a knowing,

intelligent, and voluntary fashion. To address this issue, we

apply the test set forth in Nelson v. State, 54 Wis. 2d 489, 195

N.W.2d 629      (1972),      and   refined          in     State    v.         Bentley,     201

Wis. 2d 303,           548         N.W.2d 50               (1996)               (hereinafter
"Nelson/Bentley"). Nelson/Bentley instructs that "if a motion to

withdraw a guilty plea after judgment and sentence alleges facts

which, if true, would entitle the defendant to relief, the trial

court must hold an evidentiary hearing." State v. Bentley, 201

Wis. 2d 303, 310, 548 N.W.2d 50 (1996) (quoting Nelson v. State,

54 Wis. 2d 489, 497-98, 195 N.W.2d 629 (1972). However, "if the

record      conclusively     demonstrates           that    the    defendant         is     not

entitled to relief, the trial court may in the exercise of its


                                           4
                                                        No.   2013AP2316-CR



legal discretion deny the motion without a hearing." Id. at 310

(quoting Nelson, 54 Wis. 2d at 497-98).

     ¶7   We   conclude   that   the   postconviction    court   was   not

required to hold an evidentiary hearing before it determined

whether Sulla had entered his pleas in a knowing, intelligent,

and voluntary fashion. Here, the postconviction court properly

exercised its discretion when it denied Sulla's postconviction

motion to withdraw his plea without first holding an evidentiary

hearing because it applied the proper legal standard, examined

the relevant facts, and engaged in a rational decision making

process. Moreover, when we apply the Nelson/Bentley test to this

case, we conclude that Sulla is not entitled to an evidentiary

hearing on his postconviction motion to withdraw his plea. The

record in this case, specifically the Plea Questionnaire/Waiver

of Rights form and the transcripts from the plea hearing and the

sentencing hearing, conclusively demonstrates that Sulla is not

entitled to relief because he          was correctly informed of and

understood the effect of the read-in charges at sentencing.5
     5
       Sulla also raises issues related to judicial bias and
ineffective assistance of counsel in his briefing; however,
these arguments were not raised in the petition for review. We
did not order that any issues presented outside of the petition
for review be granted and briefed. Therefore, we do not address
Sulla's additional arguments. See Jankee v. Clark Cty., 2000 WI
64,   ¶7,  235   Wis. 2d 700,  612   N.W.2d 297   ("Generally, a
petitioner cannot raise or argue issues not set forth in the
petition for review unless the court orders otherwise. If an
issue is not raised in the petition for review or in a cross
petition, 'the issue is not before us.'" (citation and footnote
omitted) (quoting State v. Weber, 164 Wis. 2d 788, 791 n.2, 476
N.W.2d 867 (1991) (Abrahamson, J., dissenting))).


                                   5
                                                                     No.       2013AP2316-CR



              I.   FACTUAL BACKGROUND AND PROCEDURAL HISTORY

                        A.    Charging and Plea Bargaining

       ¶8     On July 26, 2011, the State charged Sulla with two

counts of burglary, one count of conspiracy to commit arson, and

one count of party to the crime of operating a motor vehicle

without the owner's consent, all as a repeat offender. Sulla, if

convicted of each count, would have faced a maximum period of

imprisonment       of    95    years   and      6   months.6   Despite           initially

pleading not guilty on all four counts, Sulla later entered into

a plea deal with the State. In exchange for pleading no contest

to Count 1 (armed burglary) and Count 3 (burglary), the State

agreed to dismiss but have read into the record Count 2 (arson)

and Count 4 (operating motor vehicle without consent). Sulla's

plea deal decreased his maximum period of imprisonment to 39

years and 6 months.

       ¶9     Prior to entering his plea, Sulla read and signed a

Plea       Questionnaire/Waiver        of       Rights       form.         A     list    of

"Understandings"         on   the   form   included      a   statement         addressing
read-in charges:


       6
       For Count 1 (armed burglary), Sulla could have been
imprisoned not more than 15 years plus a 6 year repeat offender
enhancer. For Count 2 (arson), Sulla could have been imprisoned
not more than 40 years plus a 6 year repeat offender enhancer.
For Count 3 (burglary), Sulla could have been imprisoned not
more than 12 years and 6 months plus a 6 year repeat offender
enhancer. For Count 4 (operating a vehicle without consent),
Sulla could have been imprisoned not more than 6 years plus a 4
year repeat offender enhancer. Adding all four counts together
totals 95 years and 6 months.


                                            6
                                                                       No.        2013AP2316-CR


       I understand that if any charges are read-in as part
       of a plea agreement they have the following effects:

                Sentencing——although the judge may consider
                 read-in charges when imposing sentence, the
                 maximum penalty will not be increased.

                Restitution——I   may   be    required                       to      pay
                 restitution on any read-in charges.

                Future prosecution——the State may not prosecute
                 me for any read-in charges.
Sulla    signed     the    Plea     Questionnaire/Waiver              of     Rights       form,

acknowledging,       "I    have     reviewed          and    understand       this     entire

document     and    any    attachments.           I   have     reviewed       it     with    my

attorney . . . . I have answered all questions truthfully and

either I or my attorney have checked the boxes. I am asking the

court to accept my plea and find me guilty." Sulla's attorney

also    signed     the     Plea    Questionnaire/Waiver               of     Rights        form,

acknowledging, "I am the attorney for the defendant. I have

discussed this document and any attachments with the defendant.

I believe the defendant understands it and the plea agreement.

The    defendant    is     making      this       plea      freely,   voluntarily,          and
intelligently. I saw the defendant sign and date this document."

                                  B.    Plea Hearing

       ¶10   On    April    10,   2012,       the     circuit     court      held     a     plea

hearing. At the plea hearing, the court specifically discussed

read-in charges——and their effect at sentencing——with Sulla:

       THE COURT: Mr. Sulla, I understand that of the four
       counts made against you, you intend to withdraw your
       not guilty pleas and instead plead no contest to
       crimes in Counts 1 and 3 called armed burglary and
       burglary both as habitual criminals. Is that right?


                                              7
                                                          No.   2013AP2316-CR


      SULLA: Yes, ma'am.

      THE COURT: And then you expect that both sides will
      ask me to dismiss Counts 2 and 4, conspiracy to commit
      arson and operating motor vehicle without owner's
      consent, again both as habitual criminal, but have me
      consider those offenses when I sentence you, also
      true?

      SULLA: Yes, ma'am.
(Emphasis added.) As part of the plea hearing, the circuit court

also confirmed that Sulla had an opportunity to discuss his plea

with his attorney:

      THE COURT: So Mr. Sulla, have I correctly stated the
      representation that the State's attorney has made to
      you regarding the State's recommendations?

      SULLA:     Yes, ma'am.

      THE COURT: Have you had enough time with Mr. De La
      Rosa?[7]

      SULLA:     Yes, ma'am.

      THE COURT: He's told you and you've--you understand
      from   him  that   I   don't   have  to    follow that
      recommendation or your recommendation or anyone's
      recommendations in these cases, don't you?

      SULLA:     Yes, ma'am.
In   addition,    the   court   warned   Sulla   that   regardless   of   the

recommendation made by the State, the court could award the

maximum statutory sentence:

      THE COURT: In fact, on Count 1, I could order
      imprisonment up to 21 years and up to $50,000 in fines
      and on Count 3, I could order imprisonment up to 18
      1/2 years and up to $25,000 in fines, so regardless of

      7
       Attorney Jeffery De La Rosa represented Sulla at his plea
hearing.


                                     8
                                                                 No.        2013AP2316-CR


    the recommendations, my authority is to--for a total
    of 39 1/2 years imprisonment and $75,000 in fines; do
    you understand my sentencing authority?

    SULLA:     Yes, ma'am.
Finally, the court confirmed that Sulla read, understood, and

signed the Plea Questionnaire/Waiver of Rights form:

    THE COURT: I was reading in part from a yellow
    document called plea questionnaire and waiver of
    rights and I see Mr. De La Rosa's signature on it from
    this morning.   I recognize it.  Did you also sign it
    this morning?

    SULLA:     Yes, ma'am.

    THE COURT:     Before           you       did,   did   you    read         and
    understand it?

    SULLA:     Yes, ma'am.

    THE COURT: There is another document that you and Mr.
    De La Rosa filed with it and it is called a felony
    element of criminal offenses. Did you read it before
    you signed this yellow document?

    SULLA:     Yes, ma'am.

    THE COURT:        Did   you    understand        everything        in     both
    papers?

    SULLA:     Yes, ma'am.
After finishing the plea colloquy, the court found that Sulla's

pleas   were   made    in   a     knowing,      intelligent,       and        voluntary

fashion. Specifically, the court stated,

    These pleas are knowing, voluntary, and intelligent.
    They and the dismissed charges are sufficiently
    supported by fact. I accept the pleas, find the
    defendant to be a habitual criminal. Find him guilty
    as he's charged in Counts 1 and 3 and on the request
    of both parties and for the reasons provided by the
    district attorney, dismiss Counts 2 and 4. I'll
    consider them at sentencing. I order that judgment
    enter.
                                          9
                                                                  No.    2013AP2316-CR



(Emphasis added.) The case then proceeded to sentencing.

                             C.    Sentencing Hearing

       ¶11       The circuit court held a sentencing hearing on May 15,

2012. At the sentencing hearing, the court explained the effect

that       the   read-in   arson   charge     would   have   on    its   sentencing

determination for Count 1:

       I want to say two things. One is, you asked me to
       dismiss it and consider it as a read-in. So I'm going
       to. I'm not going to consider that you are uninvolved
       with it.   You gave me a victim--you gave me a plea
       questionnaire that says that you understand that if
       charges are read in as part of the plea agreement they
       have the following effect; at sentencing, the judge
       may consider read-in charges when imposing sentence,
       but the maximum penalty will not be increased and that
       you might be required to pay restitution for read-in
       charges and that the State can't prosecute you
       separately for it in the future.

            The second consideration I have of the arson is
       that, let's say for argument purposes that you were in
       Michigan at the time of the arson, that you were non-
       participatory in the torching altogether. As far as I
       can tell from your statement, the arson followed the
       burglary that you were involved with. And so it
       followed that felony.

(Emphasis added.)
       ¶12       After   discussing   several    other   sentencing        factors,8

such as Sulla's age, his 18 previous convictions, and the nature
       8
       The circuit court methodically applied the sentencing
factors set forth in State v. Gallion, 2004 WI 42, 270
Wis. 2d 535, 678 N.W.2d 197, stating, "As always, the Court
considers three categories, three factors in any sentence. One
is the character of the defendant. Another is the nature and
gravity of the crimes and a third is the need for public
protection. And I'll do that here and I'll do it in about that
series."


                                         10
                                                                     No.     2013AP2316-CR



of his crime, the court sentenced Sulla to a total of 20 years,

which is nearly half the maximum period of imprisonment (39

years      and    6    months).9      On   Count   1,    Sulla    received       15   years

imprisonment, consisting of 7.5 years of initial confinement and

7.5 years of extended supervision. On Count 3, Sulla received 5

years      imprisonment,            consisting     of    2.5      years     of    initial

confinement and 1.5 years of extended supervision. The court

ordered the sentences to run consecutively to one another and to

all other sentences.

                       D.    Postconviction Motion and Hearing

      ¶13        On August 5, 2013, Sulla filed a motion to withdraw

his     plea10        on    the    basis   that    his     plea   was      not   knowing,

intelligent, and voluntary because he did not understand the

effect a read-in charge could have at sentencing.11 To support

his   motion,          Sulla      submitted   an   affidavit,      which     stated,     in

pertinent part,

      [M]y Attorney De La Rosa told me that agreeing to the
      read-in offense of arson was not admitting guilt and
      that it was just something the Court would "look at"

      9
       Before imposing its sentence, the circuit court asked
Sulla if "there was anything [he] would like to say." Sulla took
the opportunity to comment on his criminal history and to
apologize to the victims. At no point did Sulla ask for
clarification regarding his plea agreement or the effect a read-
in charge could have on his sentence.
      10
       Sulla brought his motion                      for     postconviction           relief
pursuant to Wis. Stat. § 809.30.
      11
       Attorney Scott A. Szabrowicz has continued to represent
Sulla throughout Sulla's postconviction proceedings.


                                              11
                                                                      No.    2013AP2316-CR


    at sentencing. I did not understand and my Attorney
    did not explain the effect that a read-in offense has
    because Attorney De La Rosa did not explain it to me.
    In fact, I did not commit the arson and if I had known
    that it was going to be considered as a negative at my
    sentencing I would not have entered the no contest
    plea.
    ¶14     On September 6, 2013, the court held a postconviction

motion     hearing.      Ultimately          the     court,       without    holding      an

evidentiary hearing, denied Sulla's motion to withdraw his plea.

Applying    the   two-part           test   set     forth    in   Nelson/Bentley,         the

postconviction court concluded that Sulla was not entitled to an

evidentiary hearing on his motion for plea withdrawal because

(1) Sulla's motion failed to alleged sufficient facts which, if

true,    would    have    entitled          Sulla    to     relief   and    (2)    even   if

Sulla's     motion       had     alleged        sufficient        facts,     the    record

conclusively demonstrated that Sulla was not entitled to relief

because he was correctly informed of and thus understood the

effect of the read-in charges at sentencing.

    ¶15     Regarding          the     first      prong     of    Nelson/Bentley,         the

postconviction court reasoned,

    Counsel was not deficient in his performance, vis-à-
    vis the need to sufficiently advise/appraise the
    defendant of the import of the arson read-in. Even if
    you consider the affidavit of the defendant, he claims
    that counsel told him he "was not admitting guilt and
    that it [the arson] was just something the court would
    'look   at'   at    sentencing."   Those   are    accurate
    statements of the law. The court would not find him
    guilty of the arson for purposes of exposure to a
    sentence on that offense and "look at" is another way
    to   describe    "consider".   This   court    finds   the
    allegation does not even rise to the level of
    deficiency.



                                               12
                                                    No.     2013AP2316-CR



(Alterations   in   original.)   Regarding   the   second    prong    of

Nelson/Bentley, the postconviction court explained,

         Before the court even undertook a colloquy with
    the defendant, the defendant's counsel went through
    two documents with him . . . . The first is the
    Modified Criminal Case Settlement form . . . . That
    document bears the signature of both the defendant and
    counsel. That exhibit clearly notes that the defendant
    would be responsible for restitution in the two
    amounts listed, which total $462,070.00. This document
    alone completely undercuts the claim that he did not
    know that the court would consider he committed the
    arson; otherwise how do you get to that amount of
    restitution without being held responsible for the
    arson? You can't. . . .

         The court additionally finds that . . . the Plea
    Questionnaire/Waiver of Rights form has a section on
    the back side entitled, "Understandings". The second
    to last bullet in that box gives a legally proper and
    sufficient explanation of how read-in offenses will be
    considered by the sentencing court. Even the defendant
    does not allege that they are deficient in any way and
    the court finds and concludes that they are not (see
    the Wisconsin Judicial Benchbook-Page 43-7, 2013
    version and State v. Frey ¶62-77). Nor does the
    defendant allege that he did not sign the waiver of
    rights form with his attorney . . . . The defendant's
    signature lies beneath a segment of language entitled,
    "Defendant's Statement" which reads in pertinent part
    that he has "reviewed and understand[s] this entire
    document" which obviously would include the section
    and bullet described above. But the record and this
    court's findings in this regard do not stop there.

         At    the    plea   hearing,    the   transcript
    reveals . . . that the defendant did understand the
    court could consider his culpability as to the arson
    in crafting [his] sentence under his pleas to count
    one and three. Plea hearing TR. P.3 l.4-10; p.4 l.6-8
    as well as l.22-25; p.5 l.1-5 as well as l.11-13; p.7
    l.7-9; and p.10 l.5-8. Those references clearly and
    conclusively demonstrate that the court's colloquy
    with the defendant established that he knew that [the


                                 13
                                                                  No.    2013AP2316-CR


       sentencing   court]         would        consider      [the        read-
       ins] . . . .
       ¶16   Throughout its analysis, the court highlighted several

specific facts: (1) Sulla agreed to have the arson charge read

into the record, (2) the read-in charge allowed Sulla to avoid

significant prison exposure from the arson charge, (3) Sulla

signed    the    Plea   Questionnaire/Waiver          of    Rights      form,     which

explicitly      informed   Sulla   that       the   court   could       consider    the

read-in charges for purposes of sentencing and restitution, and

(4) the court at the plea hearing asked Sulla if he understood

that the read-in charges would be dismissed but read into the

record    for    consideration     at    sentencing,        and   Sulla     said    he

understood. Further, the postconviction court noted that under

this     court's    precedent,     the        sentencing     court       could     have

considered the conduct underlying the arson charge even if the

charge had been dismissed or if Sulla had been acquitted of the

charge:

       [T]he sentencing court could, in an exercise of
       discretion[,] consider[] [that] he "committed" the
       arson offense under the rubric of "character of the
       accused" even if the state dismissed the count
       outright or if he had a trial, and the jury acquitted
       him of the count of arson. Either of those scenarios
       would put him in exactly the same position he found
       himself at the original sentencing, in terms of the
       court's view of his behavior.
       ¶17   Relying on all of the information outlined above, the

court concluded that Sulla understood that the read-in charges

would be dismissed but read into the record for purposes of

sentencing and restitution. As a result, the court dismissed



                                         14
                                                              No.     2013AP2316-CR



Sulla's    postconviction      motion    to   withdraw    his       plea    without

holding an evidentiary hearing. Sulla appealed.

                    E.   The Court of Appeals' Decision

    ¶18     The court of appeals reversed and remanded, concluding

that Sulla was entitled to an evidentiary hearing to determine

whether his pleas were knowing, intelligent, and voluntary. The

court of appeals was sympathetic to Sulla's claim that he did

not understand the effect of a read-in charge, remarking, "It is

not inherently implausible that a defendant would misunderstand

the read-in concept. The concept is not intuitively obvious to

non-lawyers." State v. Sulla, No.2013AP2316-CR, unpublished slip

op., ¶12 (Wis. Ct. App. May 21, 2015) (per curiam).

    ¶19     Utilizing Nelson/Bentley, the court of appeals first

concluded    that    Sulla's   affidavit      made   a   sufficient         factual

allegation that he did not understand the concept of a read-in

charge. Id., ¶¶12-15. The court commented,

    Sulla's allegation that his attorney told him "that
    agreeing to the read-in offense of arson was not
    admitting guilt and that it was just something the
    Court would 'look at' at sentencing" is sufficient to
    allege why Sulla may not have understood the read-in
    concept. The alleged statement by counsel contains an
    ambiguity that . . . adds to the potentially confusing
    nature of the read-in concept.
Id., ¶13. According to the court of appeals, counsel's use of

the word "guilt" created ambiguity: "[T]here are two ways a non-

lawyer    might   plausibly    understand     [the   phrase     'not       admitting

guilt']. One way is that Sulla was not admitting to committing
the act of arson, and the other is that Sulla was not pleading


                                        15
                                                         No.       2013AP2316-CR



guilty to an actual legal charge for doing that act." Id., ¶15

(emphasis   in   original).   "[G]iven    the   potential    for     confusion

that is inherent in the read-in concept," the court concluded

that "Sulla has alleged sufficient facts that, if true, would

entitle him to relief." Id.

      ¶20   The court of appeals then went on to consider the

second prong of Nelson/Bentley——whether the record conclusively

demonstrated that Sulla was not entitled to relief. Id., ¶16.

The court began its analysis by pointing out what it believed

was   a   "potential   inconsistency     []   present   in   the     standards

described in Bentley." Id., ¶17. It described the "potential

inconsistency" as follows:

      [C]ase law requires a hearing to be held if the
      defendant alleges facts that, if true, would entitle
      the defendant to relief, but it also allows a hearing
      to be denied if the record conclusively demonstrates
      that the defendant is not entitled to relief. These
      two concepts are potentially in conflict because the
      former seems to require an evidentiary hearing
      unconditionally, but the latter provides an option in
      which it appears that an evidentiary hearing can
      nonetheless be denied, even when the defendant makes
      allegations that would entitle him to relief, if true.
      The relationship of these concepts is not made
      entirely clear in existing case law.
Id., ¶17. To reconcile this purported inconsistency, the court

of appeals invented its own test: "[W]e understand a record to

'conclusively demonstrate' the falsity of a defendant's factual

allegations when, even after hearing the expected testimony in

support of the postconviction motion at an evidentiary hearing,

no reasonable fact-finder could find in the defendant's favor,
in light of the rest of the record." Id., ¶18.

                                   16
                                                              No.     2013AP2316-CR



    ¶21     Applying its new test, the court of appeals concluded

that "while . . .       several aspects about the existing record []

cast doubt on the accuracy of Sulla's allegations, none of them

rise to the level of making it impossible for a reasonable fact-

finder to believe that Sulla failed to properly understand the

read-in concept . . . ." Id., ¶21. As a result, the court of

appeals remanded for an evidentiary hearing on Sulla's motion to

withdraw his plea.

    ¶22     On   June   18,    2015,    the   State   filed   a     petition   for

review, which we granted. We now reverse the court of appeals.

                         II.    STANDARD OF REVIEW

    ¶23     When examining a defendant's postconviction motion for

plea withdrawal, we employ the following standard of review.

"[W]hether a defendant's motion to withdraw a guilty plea 'on

its face alleges facts which would entitle the defendant to

relief' and whether the record conclusively demonstrates that

the defendant is entitled to no relief" are questions of law

that we review de novo. State v. Howell, 2007 WI 75, ¶78, 301
Wis. 2d 350, 734 N.W.2d 48 (footnotes omitted) (citing Bentley,

201 Wis. 2d at 310); see also State v. Allen, 2004 WI 106, ¶9,

274 Wis. 2d 568, 682 N.W.2d 433. However, "if 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."    Allen,     274    Wis. 2d 568,     ¶9    (citing       Bentley,   201
Wis. 2d at 310-11; Nelson, 54 Wis. 2d at 497-98). "We review a
                                        17
                                                                             No.       2013AP2316-CR



circuit court's discretionary decisions under the deferential

erroneous exercise of discretion standard." Id. "A circuit court

properly     exercises        its     discretion        when     it     has        examined     the

relevant facts, applied the proper legal standards, and engaged

in a rational decision-making process." Bentley, 201 Wis. 2d at

318. When reviewing a trial court's exercise of discretion, we

are permitted to search the record for reasons to sustain such a

determination. Klawitter v. Klawitter, 2001 WI App 16, ¶10 n.7,

240 Wis. 2d 685, 623 N.W.2d 169.

                                    III.      DISCUSSION

            A.    General Principles Regarding Plea Withdrawal

      ¶24    A defendant may withdraw his or her plea either before

or   after       sentencing.        State     v.     Cain,      2012    WI     68,       ¶24,    342

Wis. 2d 1, 816 N.W.2d 177. "When a defendant moves to withdraw a

plea before sentencing, 'a circuit court should "freely allow a

defendant        to   withdraw      his      plea . . . for           any     fair       and    just

reason,      unless      the        prosecution         [would]         be         substantially

prejudiced."'" Id. (quoting State v. Jenkins, 2007 WI 96, ¶2,
303 Wis. 2d 157, 736 N.W.2d 24). In contrast, "When a defendant

moves   to       withdraw     the     plea      after      sentencing,         the       defendant

'carries     the      heavy     burden        of     establishing,            by       clear     and

convincing        evidence,    that       the      trial     court     should          permit    the

defendant        to    withdraw        his      plea       to    correct           a     "manifest

injustice."'" Id., ¶25 (quoting State v. Thomas, 2000 WI 13,

¶16, 232 Wis. 2d 714, 605 N.W.2d 836). "One way for a defendant

to   meet    this     burden     is    to    show      that     he     did    not      knowingly,
intelligently, and voluntarily enter the plea." State v. Brown,
                                                18
                                                                            No.     2013AP2316-CR



2006 WI 100, ¶18, 293 Wis. 2d 594, 716 N.W.2d 906;                                     see also

State v. Straszkowski, 2008 WI 65, ¶28, 310 Wis. 2d 259, 750

N.W.2d 835.

       ¶25     Two legal paths are available to a defendant who seeks

to withdraw his plea after sentencing. The first is via a motion

made    pursuant         to    State       v.   Bangert,           131     Wis. 2d 246,       389

N.W.2d 12 (1986). "A defendant invokes Bangert when the plea

colloquy is defective . . . ." Howell, 301 Wis. 2d 350, ¶74. The

second is through a Nelson/Bentley motion for plea withdrawal.

"[A] defendant invokes Nelson/Bentley when the defendant alleges

that        some    factor      extrinsic        to        the     plea     colloquy,        like

ineffective assistance of counsel or coercion, renders a plea

infirm."           Id.   Sulla        brings         his     challenge            pursuant     to

Nelson/Bentley;12         thus,       we   limit      our        discussion       to   the   plea

withdrawal procedure outlined in Nelson/Bentley.

       ¶26     The first prong of the Nelson/Bentley test provides:

"[I]f a motion to withdraw a guilty plea after judgment and

sentence       alleges        facts    which,        if     true,        would    entitle    the
defendant to relief, the trial court must hold an evidentiary

hearing." Bentley, 201 Wis. 2d at 309 (alteration in original)

(quoting Nelson, 54 Wis. 2d at 497). To meet this first prong, a

       12
       Sulla   does   not  challenge  the  court   of  appeals'
classification of his motion as a motion for plea withdrawal
under Nelson v. State, 54 Wis. 2d 489, 195 N.W.2d 629 (1972),
modified by, State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50
(1996). Moreover, Sulla's brief to this court cites exclusively
to Nelson/Bentley; it does not cite State v. Bangert, 131
Wis. 2d 246, 389 N.W.2d 12 (1986).


                                                19
                                                                           No.     2013AP2316-CR



defendant      must     allege         "sufficient       material        facts"    that   would

allow a reviewing court "to meaningfully assess a defendant's

claim."       Allen,       274     Wis. 2d 568,         ¶23;     see    also     Bentley,     201

Wis. 2d at 314 ("[A] defendant must do more than merely allege

that he would have pled differently; such an allegation must be

supported       by    objective          factual      assertions."        (quoting      Key    v.

United        States,        806       F.2d      133,     139      (7th     Cir.       1986))).

Specifically, a defendant should "allege the five 'w's' and one

'h'; that is, who, what, where, when, why, and how." Allen, 274

Wis. 2d 568, ¶23.

    ¶27        The second prong of Nelson/Bentley provides: "[I]f the

defendant fails to allege sufficient facts in his motion to

raise     a     question          of     fact,     or     presents        only     conclusory

allegations, or if the record conclusively demonstrates that the

defendant is not entitled to relief, the trial court may in the

exercise       of    its     legal       discretion      deny     the    motion     without    a

hearing."      Bentley,          201     Wis. 2d at      309-10        (quoting    Nelson,     54

Wis. 2d at 497-98).
    ¶28        In     this       case,    the     court    of     appeals        struggled    to

properly apply Nelson/Bentley. Perhaps this is because the court

of appeals neglected to examine any recent case law from this

court.    Indeed,       the       only    law    cited    in     the    court     of   appeals'

opinion is Nelson (1972), Bentley (1996), and Bangert (1986).

Absent from the court of appeals' opinion is any reference to

our recent explanations of the Nelson/Bentley standard, which

include       State     v.    Allen,       2004    WI     106,    274     Wis. 2d 568,        682
N.W.2d 433, State v. Howell, 2007 WI 75, 301 Wis. 2d 350, 734
                                                 20
                                                                 No.   2013AP2316-CR



N.W.2d 48, State v. Straszkowski, 2008 WI 65, 310 Wis. 2d 259,

750 N.W.2d 835, and State v. Frey, 2012 WI 99, 343 Wis. 2d 358,

817 N.W.2d 436.

    ¶29        Had the court of appeals been so inclined, it could

have read and applied these cases, and a costly, time-consuming

appeal to this court could have been avoided. Be that as it may,

the court of appeals concluded that Nelson/Bentley's two prongs

potentially conflict because "the former seems to require an

evidentiary hearing unconditionally, but the latter provides an

option    in    which   it   appears   that    an   evidentiary        hearing   can

nonetheless be denied, even if the defendant makes allegations

that would entitle him to relief, if true." Sulla, unpublished

slip op., ¶17. A review of our existing case law confirms that

we clarified any "potential inconsistency" years ago when we

explained,

    Bentley might be interpreted to make an evidentiary
    hearing   mandatory   whenever  the   motion  contains
    sufficient, nonconclusory facts, even if the record as
    a whole would demonstrate that the defendant's plea
    was constitutionally sound. Such an interpretation of
    Nelson and Bentley, however, is not correct. The
    correct interpretation of Nelson/Bentley is that an
    evidentiary hearing is not mandatory if the record as
    a whole conclusively demonstrates that defendant is
    not entitled to relief, even if the motion alleges
    sufficient nonconclusory facts.
Howell,    301    Wis. 2d 350,    ¶77      n.51;    see   also     id.,   ¶150-153

(Prosser, J., dissenting) ("Two years ago in [another case], I

tried to explain the internal inconsistency I perceived in the

Bentley    decision. . . . To        its     credit,   the   majority      opinion
corrects         this    festering         problem. . . . The           majority's

                                        21
                                                                          No.        2013AP2316-CR



clarification of the Bentley opinion restores to the circuit

court the ability to form its independent judgment [on a Bentley

plea withdrawal motion] after a review of the [entire] record

and    pleadings."         (fourth     and    fifth       alterations           in     original)

(quotation marks and citation omitted)).

       ¶30     To be clear, a circuit court has the discretion to

deny    a     defendant's       motion——even         a    properly        pled       motion——to

withdraw his plea without holding an evidentiary hearing if the

record      conclusively        demonstrates         that      the   defendant           is   not

entitled to relief. With this framework in mind, we move on to

consider whether the postconviction court, here, was required to

hold     an    evidentiary       hearing       on        Sulla's     motion          before    it

determined whether Sulla had entered his pleas in a knowing,

intelligent, and voluntary fashion. To answer this question we

must discuss (1) whether Sulla's motion to withdraw his plea

alleged facts which, if true, would entitle him to relief; (2)

whether the record conclusively demonstrates that Sulla is not

entitled to relief; and (3) whether the postconviction court
erroneously         exercised    its       discretion       when     it    denied        Sulla's

postconviction motion to withdraw his plea without holding an

evidentiary hearing.

              B.   Read-in Charges and Their Role at Sentencing

       ¶31     Before      turning     to    the     three     considerations             listed

above, we first take a moment to discuss generally sentencing

and the role read-in charges play at sentencing.

       ¶32     "Wisconsin       has    a     strong       public      policy          that    the
sentencing         court   be   provided      with       all   relevant         information."
                                             22
                                                                      No.   2013AP2316-CR



State v. Frey, 2012 WI 99, ¶45, 343 Wis. 2d 358, 817 N.W.2d 436

(quoting State v. Guzman, 166 Wis. 2d 577, 592, 480 N.W.2d 446

(1992)).      Accordingly,     a     "sentencing       court     or     jury    must    be

permitted      to   consider    any     and    all    relevant    information          that

reasonably might bear on the proper sentence for the particular

defendant, given the crime committed." Id. (quoting Wasman v.

United States, 468 U.S. 559, 563 (1984)). Notably, we have held

that "'a sentencing court may consider uncharged and unproven

offenses'" regardless of "whether or not the defendant consents

to having the charge read in. Indeed, the court may consider not

only 'uncharged and unproven offenses' but also 'facts related

to offenses for which the defendant has been acquitted.'" Id.,

¶47 (quoting State v. Leitner, 2002 WI 77, ¶45, 253 Wis. 2d 449,

646 N.W.2d 341).

       ¶33    A read-in charge is any crime "that is uncharged or

that    is    dismissed   as    part      of    a    plea   agreement,         that    the

defendant agrees to be considered by the court at the time of

sentencing       and   that    the      court       considers    at     the    time     of
sentencing the defendant for the crime for which the defendant

was convicted."        Wis.    Stat.    § 973.20(1g)(b).13 Similar to Wis.

Stat.       § 973.20(1g)(b),       we   have    defined     read-in         charges      as

"charges [that] are expected to be considered in sentencing,

with the understanding that read-in charges could increase the

sentence up to the maximum that the defendant could receive for


       13
            Chapter 973 of the Wisconsin Statutes governs sentencing.


                                          23
                                                                        No.     2013AP2316-CR



the conviction in exchange for the promise not to prosecute

those additional offenses." Frey, 343 Wis. 2d 358, ¶68 (citation

omitted).14

       ¶34       In Straszkowski, we examined "the history of read-in

charges in this state" and set forth the proper procedure trial

counsel      and     circuit       courts      should    undertake          when    advising

defendants about read-in charges. 310 Wis. 2d 259, ¶59. There,

the    defendant         claimed       that    his   plea    was      not     "knowing    and

intelligent because he was unaware that a charge dismissed but

read    in       under    a     plea   agreement      [was]        deemed     admitted    for

purposes of sentencing the defendant on the charge to which the

defendant pled guilty." Id., ¶2. After analyzing our precedent,

we     concluded         that    "Wisconsin's        read-in       procedure       does   not

require      a    defendant       to   admit    guilt   of     a    read-in     charge    for

purposes of sentencing and does not require a circuit court to




       14
       In State v. Frey, 2012 WI 99, 343 Wis. 2d 358, 817
N.W.2d 436, we commented on the benefits both the State and a
defendant receive from the read-in charge procedure. 343
Wis. 2d 358, ¶¶69-74. On the one hand, the State "preserves
precious prosecutorial resources by not prosecuting other
charges," while having the defendant "expose[] himself to the
likelihood of a higher sentence within the sentencing range and
the additional possibility of restitution for the offenses that
are 'read-in.'" Id., ¶¶70, 73. On the other hand, the defendant
cleans "his slate of several uncharged crimes with the safety of
only receiving at most the maximum sentence on the crimes of
which he is convicted and receive[s] immunity from future
prosecution of any read-in offense." Id., ¶71 (quotation marks
and emphasis omitted) (quoting Embry v. State, 46 Wis. 2d 151,
158, 174 N.W.2d 521).


                                               24
                                                             No.   2013AP2316-CR



deem the defendant to admit as a matter of law to the read-in

crime for purposes of sentencing." Id., ¶92.

       ¶35    Consequently, we instructed trial counsel and circuit

courts to take the following approach when advising defendants

about read-in charges:

       It is a better practice for prosecuting and defense
       counsel and circuit courts to omit any reference to a
       defendant admitting a read-in crime, except when the
       defendant [chooses to] admit guilt, and simply to
       recognize that a defendant's agreement to read in a
       charge affects sentencing in the following manner: a
       circuit court may consider the read-in charge when
       imposing sentence but the maximum penalty of the
       charged offense will not be increased; a circuit court
       may require a defendant to pay restitution on the
       read-in charges; and a read-in has a preclusive effect
       in   that  the   State   is   prohibited from   future
       prosecution of the read-in charge.
Id., ¶93 (footnotes omitted). Put simply, counsel and courts

should refrain from advising defendants that a read-in charge

necessitates admitting guilt. Id. Instead, counsel and courts

should advise defendants that (1) the read-in charge will be

considered by the sentencing court, but the maximum penalty will
not    be    increased;   (2)   the   defendant   may   be   required   to   pay

restitution on the read-in charge; and (3) the defendant may not

be prosecuted for the read-in charge in the future. Id. With

these general principles in mind, we now proceed to address

Sulla's claim.

  C.    Whether Sulla's Motion to Withdraw His Plea Alleged Facts
             Which, if True, Would Entitle Him to Relief
       ¶36    Under the first prong of Nelson/Bentley, we examine
whether Sulla's motion alleged sufficient facts that, if true,


                                        25
                                                                  No.    2013AP2316-CR



would    entitle     Sulla   to   relief.       Bentley,    201      Wis. 2d at      309

(quoting Nelson, 54 Wis. 2d at 497). As noted previously, for a

motion to be sufficient, it must "allege the five 'w's' and one

'h'; that is, who, what, where, when, why, and how." Allen, 274

Wis. 2d 568, ¶23. These "five w's' and one 'h'" make it so that

a    reviewing   court   has      enough   sufficient       facts       that    it   can

"meaningfully assess a defendant's claim." Id.

       ¶37    Sulla's affidavit stated, in pertinent part,

       [M]y attorney De La Rosa told me that agreeing to the
       read-in offense of arson was not admitting guilt and
       that it was just something the Court would 'look at'
       at sentencing. I did not understand and my Attorney
       did not explain the effect that a read-in offense has
       because Attorney De La Rosa did not explain it to me.
At    its    core,   Sulla's   motion      to    withdraw      his    plea     and   his

accompanying affidavit allege that, in spite of Attorney De La

Rosa    specifically     informing     Sulla      that   the    sentencing       court

would "look at" (or consider) the read-in charge for the purpose

of sentencing, Sulla did not understand that the circuit court

would consider the read-in charges for purposes of imposing a

sentence.

       ¶38    The problem with Sulla's claim is that Attorney De La

Rosa's alleged statement "that agreeing to the read-in offense

of arson was not admitting guilt and that it was just something

the Court would 'look at' at sentencing" is a correct statement

of the law under Straszkowski and Frey. As we noted in both

Straszkowski and Frey, "when the State and a defendant agree

that charges will be read in, those charges are expected to be
considered in sentencing." Frey, 343 Wis. 2d 358, ¶68; see also

                                        26
                                                                          No.   2013AP2316-CR



Straszkowski,           310    Wis. 2d 259,        ¶93    ("[A]     circuit      court    may

consider     the       read-in      charge    when       imposing    sentence      but    the

maximum penalty of the charged offense will not be increased.").

      ¶39    Moreover,         as   noted     previously      in     our    discussion     of

Straszkowski,           "no    admission      of    guilt    from     a     defendant     for

sentencing purposes             is required (or should be deemed) for a

read-in charge to be considered for sentencing purposes and to

be   dismissed."         310    Wis. 2d 259,        ¶5    (emphasis        added).    Stated

simply, Attorney De La Rosa's alleged statements to Sulla (1)

"that agreeing to the read-in offense of arson was not admitting

guilt," and (2) that the read-in offense was something the court

would "look at" at sentencing are correct statements of the law

under our precedent.

      ¶40    Even       assuming      Sulla    is    entitled       to     an   evidentiary

hearing because his motion alleged sufficient facts which, if

true, would entitle Sulla to relief, we could still consider

whether the record conclusively demonstrates that Sulla is not

entitled to relief because he in fact understood the effect the
read-in charges could have at sentencing. Here, we will proceed

to consider the remainder of the record to determine whether

Sulla   in       fact    understood     that       the    read-in     charge      would    be

considered        by     the     circuit      court       when      fashioning       Sulla's

sentence.

            D.    Whether the Record Conclusively Demonstrates
                    That Sulla is Not Entitled to Relief
      ¶41    Under the second prong of Nelson/Bentley, we examine
whether "the record conclusively demonstrates that the defendant

                                              27
                                                                   No.       2013AP2316-CR



is   not     entitled      to   relief."    Bentley,    201    Wis. 2d at          309-10

(quoting Nelson, 54 Wis. 2d at 497-98). If it so demonstrates,

then    the       "trial   court    may    in   the    exercise     of       its   legal

discretion deny the motion without a hearing." Id.

       ¶42    In Allen, we considered what it meant for a record to

conclusively demonstrate that a defendant was not entitled to

the relief sought. 274 Wis. 2d 568, ¶30. There, we explained

that the record conclusively refuted the defendant's claim that

his trial counsel failed to contact potential witnesses because

it   contained       specific     statements    by    the    defendant's        attorney

indicating that the attorney had investigated and ruled out each

witness suggested by the defendant. Id.

       ¶43    As in Allen, in this case, the record conclusively

refutes Sulla's claim that he was misinformed of and therefore

did not understand the effect a read-in charge could have at

sentencing. The record is replete with indications that Sulla

was properly informed and understood that the sentencing court

could      consider     the     read-in    charges    when    it   determined         his
sentence.

       ¶44    First, the Plea Questionnaire/Waiver of Rights form——

that Sulla read and signed——clearly explained the effect of a

read-in charge at sentencing:

       [I]f any charges are read-in as part                        of    a     plea
       agreement they have the following effects:

                 Sentencing——although the judge may consider
                  read-in charges when imposing sentence, the
                  maximum penalty will not be increased.



                                           28
                                                           No.        2013AP2316-CR



             Restitution——I   may   be    required              to      pay
              restitution on any read-in charges.

             Future prosecution——the State may not prosecute
              me for any read-in charges.[15]
    ¶45   Second,    at     the   plea    hearing,   the    circuit         court

specifically    discussed    read-in     charges——and   their         effect    at

sentencing——with Sulla:

    THE COURT: Mr. Sulla, I understand that of the four
    counts made against you, you intend to withdraw your
    not guilty pleas and instead plead no contest to
    crimes in Counts 1 and 3 called armed burglary and
    burglary both as habitual criminals. Is that right?

    SULLA: Yes, ma'am.

    THE COURT: And then you expect that both sides will
    ask me to dismiss Counts 2 and 4, conspiracy to commit
    arson and operating motor vehicle without owner's
    consent, again both as habitual criminal, but have me
    consider those offenses when I sentence you, also
    true?

    SULLA: Yes, ma'am.

    . . . .

    THE COURT: These pleas are knowing, voluntary, and
    intelligent. They and the dismissed charges are
    sufficiently supported by fact. I accept the pleas,
    find the defendant to be a habitual criminal. Find him
    guilty as he's charged in Counts 1 and 3 and on the
    request of both parties and for the reasons provided
    by the district attorney, dismiss Counts 2 and 4. I'll
    consider them at sentencing.
(Emphasis added.)


    15
       We note that the three points listed in the Plea
Questionnaire/Waiver of Rights form match the three points we
listed in State v. Straszkowski, 2008 WI 65, ¶93, 310
Wis. 2d 259, 750 N.W.2d 825.


                                    29
                                                       No.    2013AP2316-CR



    ¶46    Third, at the sentencing hearing, the circuit court

explained precisely what effect that the read-in arson charge

would have on its sentencing determination for Count 1:

    I want to say two things. One is, you asked me to
    dismiss it and consider it as a read-in. So I'm going
    to. I'm not going to consider that you are uninvolved
    with it.   You gave me a victim--you gave me a plea
    questionnaire that says that you understand that if
    charges are read in as part of the plea agreement they
    have the following effect;    at sentencing, the judge
    may consider read-in charges when imposing sentence,
    but the maximum penalty will not be increased and that
    you might be required to pay restitution for read-in
    charges and that the State can't prosecute you
    separately for it in the future.

(Emphasis added.)
    ¶47    Fourth,    Sulla   agreed    to   pay   over      $460,000   in

restitution to the victims. As was noted by the postconviction

court, this large sum of money can only be computed by factoring

in the destruction of the victim's home due to arson (one of the

read-in charges).

    ¶48    Finally, at the time of sentencing, Sulla had amassed

a rather extensive criminal record. Included in his criminal
record were 17 other charges that had been dismissed and read

into the record. The fact that Sulla has past experience with

read-in charges only further refutes his claim that he did not

understand the effect a read-in charge could have at sentencing.

In short, Sulla is not entitled to an evidentiary hearing on his

motion   for   plea   withdrawal   because   the   record    conclusively

demonstrates that Sulla is not entitled to relief. Sulla was




                                   30
                                                                  No.    2013AP2316-CR



properly    informed       of   and    understood    the    effect      the    read-in

charges would have at sentencing.

 E.  Whether the Postconviction Court Erroneously Exercised Its
   Discretion When it Denied Sulla's Postconviction Motion to
    Withdraw His Plea Without Holding an Evidentiary Hearing
      ¶49    We     turn   to    our    final    consideration:         whether      the

postconviction court erroneously exercised its discretion when

it denied Sulla's postconviction motion to withdraw his plea

without holding an evidentiary hearing. As discussed previously,
"A circuit court properly exercises its discretion when it has

examined the relevant facts, applied the proper legal standards,

and engaged in a rational decision-making process." Bentley, 201

Wis. 2d at 318.

      ¶50    Here, the circuit court both orally and in writing set

forth its reasons for denying Sulla's motion to withdraw his

plea without holding an evidentiary hearing. The postconviction

court     began      its     analysis       by   properly       articulating        the

Nelson/Bentley framework. Next, the postconviction court made

extensive    and     substantiated      factual     findings.     Based       on   these

findings, the postconviction court determined that Sulla was not
entitled to an evidentiary hearing on his motion because his

affidavit did not allege sufficient facts which, if true, would

entitle     Sulla    to    relief.     In    reaching    this     conclusion,       the

postconviction       court      properly    recognized     that    the    statements

Sulla takes issue with in his motion for plea withdrawal are in

fact "accurate statements of the law."




                                            31
                                                                             No.    2013AP2316-CR



    ¶51        Though the court could have ended its analysis there,

it proceeded to consider whether Sulla was not entitled to an

evidentiary          hearing        on     his        motion     because           the     record

conclusively demonstrated that Sulla was not entitled to relief.

In making that determination, the postconviction court combed

through    the       entire    record,         highlighting       the    read-in         language

used in the Plea Questionnaire/Waiver of Rights form and the

language used by the circuit court at the plea hearing and the

sentencing hearing. Moreover, the postconviction court, citing

our decision in Frey, properly zeroed in on the fact that the

sentencing court could have considered the arson charge even if

Sulla had refused to have the charge read in as part of his plea

agreement. See Frey, 343 Wis. 2d 358, ¶47. Relying on the entire

record, and our case law, the postconviction court reasoned that

Sulla was not entitled to an evidentiary hearing on his motion

because the record conclusively demonstrated that Sulla was not

entitled       to    relief,    as       Sulla       was     properly    informed         of    and

understood          the    effect        the    read-in       charges        would       have    at
sentencing.

    ¶52        Stated      otherwise,          the    postconviction          court      properly

exercised its discretion when it denied Sulla's postconviction

motion    to     withdraw      his       plea    without       holding        an   evidentiary

hearing because it applied the proper legal standard, examined

the relevant facts, and engaged in a rational decision-making

process.       The        postconviction             court     had      an     abundance         of

information on which it could base its determination; thus, it


                                                32
                                                                   No.     2013AP2316-CR



was well within its discretion when it dismissed Sulla's motion

to withdraw his plea without holding an evidentiary hearing.

                                IV.    CONCLUSION

       ¶53    To   summarize,    we    conclude     that     the      postconviction

court was not required to hold an evidentiary hearing before it

determined whether Sulla had entered his pleas in a knowing,

intelligent,       and   voluntary     fashion.    Here,     the      postconviction

court properly exercised its discretion when it denied Sulla's

postconviction motion to withdraw his plea without first holding

an   evidentiary      hearing   because       it   applied      the      proper    legal

standard, examined the relevant facts, and engaged in a rational

decision       making     process.      Moreover,        when      we      apply     the

Nelson/Bentley test to this case, we conclude that Sulla is not

entitled to an evidentiary hearing on his postconviction motion

to withdraw his plea. The record in this case, specifically the

Plea   Questionnaire/Waiver       of    Rights     form    and     the     transcripts

from the plea hearing and the sentencing hearing, conclusively

demonstrates that Sulla is not entitled to relief because he was
correctly informed of and understood the effect of the read-in

charges at sentencing.

       By    the   Court.—The   decision      of   the    court       of   appeals    is

reversed.




                                         33
                                                                        No.    2013AP2316-CR.awb



    ¶54      ANN WALSH BRADLEY, J. (concurring).                           I agree with the

majority that the circuit court did not erroneously exercise its

discretion when it denied the defendant's postconviction motion

for plea withdrawal without an evidentiary hearing. Majority op.

at ¶7.    The circuit court applied the proper legal standards and

engaged in a rational decision-making process.                            Id.

    ¶55      I        write     separately,          however,      to      address     read-in

offenses.        The court of appeals observed that "the potential for

confusion    []        is    inherent    in    the       read-in    concept."         It    also

described the procedure as "not intuitively obvious," and as

containing       "a     certain     inconsistency."                State      v.   Sulla,    No.

2013AP2316-CR, unpublished slip op., ¶¶12, 15 (Wis. Ct. App. May

21, 2015) (per curiam).             I agree.

    ¶56      The       confusion     is       only       exacerbated       when    defendants

consent to have a charge read-in, but continue to proclaim their

innocence        of     that     charge.            In    those     situations,        greater

attention need be employed by the court and counsel to ensure a

constitutionally valid plea.
    ¶57      Accordingly, I recommend a better practice.                             Given the

potential for confusion and the uncertainties detailed below, I

urge circuit courts and counsel to make additional efforts to

guarantee    that           defendants    understand        all     the       consequences    of

read-in     charges,           ensuring        that       the      plea       is    knowingly,

intelligently, and voluntarily made.

                                                I

    ¶58      A brief history of the read-in procedure is helpful in
explaining why it poses a challenge today.                                This court first

                                                1
                                                               No.    2013AP2316-CR.awb



used the term "read-in" in Austin v. State, 49 Wis. 2d 727, 183

N.W.2d 56 (1971).1       In that case, the court examined the validity

of    plea   bargains   involving       read-in      charges,       focusing    on   the

subsequent immunity granted to defendants.                     It first explained

the    read-in    procedure,     noting       that    the    "admitted       uncharged

offenses" expose a defendant to a longer sentence:

       Under our read-in procedure, the defendant does not
       plead to any charges and therefore is not sentenced on
       any of the read-in charges but such admitted uncharged
       offenses are considered in sentencing him on the
       charged offense.    Thus under the read-in procedure,
       the defendant does not run the risk of consecutive
       sentences or even concurrent sentences. His only risk
       is a longer sentence for the crime charged but this
       sentence cannot exceed the maximum.
Id. at 732.

       ¶59    The court then observed that the read-in procedure was

an outgrowth of English common law which permitted consideration

of uncharged offenses at the request of the accused (referred to

as    the    practice   of    "taking    into     account").          Id.       English

practice was to refrain from subsequently prosecuting offenses

that had been taken into account.                 Id.       Relying on notions of

fairness,      the   Austin     court     determined         that     this     practice

       1
       Although Austin was the first case from this court to use
the term "read in," a few earlier cases described the procedure.
See, e.g., Embry v. State, 46 Wis. 2d 151, 158, 174 N.W.2d 521
(1970) ("Upon agreement between the state and the accused, the
judge may take these [dismissed] offenses into consideration and
the prosecution agrees not to prosecute."); State v. Smith, 45
Wis. 2d 39, 42, 172 N.W.2d 18 (1969) ("In the instant case the
defendant voluntarily agreed to allow the judge to consider
unproven offenses so that, should the state later attempt to
prosecute him, he could successfully assert the defense of
double jeopardy.").

                                          2
                                                                 No.    2013AP2316-CR.awb



constituted good public policy and upheld the read-in procedure.

Id. at 736.

      ¶60   Since       Austin,   the    idea       that   read-in       charges    were

"admitted" was included in multiple opinions.                      See, e.g., State

v. Lackershire, 2007 WI 74, ¶27 n.7, 301 Wis. 2d 418, 734 N.W.2d

23 ("When charges are read in during sentencing, the defendant

admits to having committed the underlying crimes, but does not

plead guilty to the charges, and therefore is not sentenced for

those charges.");         State v. Martel, 2003 WI 70, ¶21, 262 Wis. 2d

483, 664 N.W.2d 69 ("offenses that are dismissed and read in are

admitted    by    the    defendant      for   purposes      of    consideration       at

sentencing on the crime or crimes for which the defendant is

convicted"); State v. Floyd, 2000 WI 14, ¶25, 232 Wis. 2d 767,

606 N.W.2d 155 ("Read-ins constitute admissions by the defendant

to those charges."); In Interest of R.W.S., 162 Wis. 2d 862, 866

n.1, 471 N.W.2d 16 (1991) ("[The defendant] is not sentenced on

these read-in charges, but these admitted, uncharged offenses

are   considered        in   sentencing       him     or   her     on     the   charged
offense.").

      ¶61   However, as this court has acknowledged, Austin did

not   state      that    a   defendant's        admission        was     required    for

Wisconsin's read-in procedure.                State v. Straszkowski, 2008 WI

65, ¶68, 310 Wis. 2d 259, 750 N.W.2d 835.                    Further, some cases

"describe the defendant's admission of a read-in charge not as

an actual admission of guilt but rather as an admission as a

matter of law that the defendant makes simply by agreeing to
read in a dismissed charge."                  Id., ¶¶69-73 (citing State v.

                                          3
                                                                     No.    2013AP2316-CR.awb



Cleaves, 181 Wis. 2d 73, 510 N.W.2d 143 (Ct. App. 1993); State

v. Szarkowitz, 157 Wis. 2d 740, 753, 460 N.W.2d 819 (Ct. App.

1990)).        Other cases described the read-in procedure without

making reference to the defendant's actual or deemed admission

of guilt.       Martinkoski v. State, 51 Wis. 2d 237, 186 N.W.2d 302

(1971); Embry v. State, 46 Wis. 2d 151, 174 N.W.2d 521 (1970).

    ¶62        In 1995, the legislature incorporated a reference to

read-in procedures into the statute governing restitution, Wis.

Stat. § 973.20.             Specifically, it drafted subsection (1g) to

insert    a    definition      of    "read-in       crime"     into        the   restitution

statute    and       add   provisions       making    it     clear    that       restitution

could    be    ordered      for     those    crimes.         The     preliminary       draft

assumed       that    a    read-in    crime       required    an     admission       by   the

defendant:

    "Read-in crime" means any crime that is uncharged,
    that the defendant admits to having committed and that
    the court considers at the time of sentencing the
    defendant for the crime for which the defendant was
    convicted.
1995 A.B. 467, § 3, LRB-0353/1.

    ¶63        However, as detailed in Strazkowski, the Department of

Justice (DOJ) objected to this definition, asserting that it was

inconsistent with the law on read-ins.                     310 Wis. 2d 259, ¶¶82-83

(citing Correspondence/Memorandum: Department of Justice, Aug.

11, 1995, in Bill Drafting File 1995 Wis. Act 141).                              It proposed

an alternative definition that would not require an admission by




                                              4
                                                                    No.    2013AP2316-CR.awb



the defendant.2          The Legislature ultimately adopted the DOJ's

proposed language.        See   Wis. Stat. § 973.20(1g)(b).

       ¶64    After    reviewing      the   case       law    and    this       legislative

history, Straszkowski directly addressed whether a defendant is

deemed to have admitted or is required to admit guilt when a

plea includes a read-in charge.                 Observing that "this court has

not necessarily been consistent in describing read-in offenses,"

and    that    the    restitution     statute,         Wis.   Stat.        §    973.20(1g),

"makes no reference to any sort of admission, whether actual or

deemed," it determined that no admission of guilt was required

or presumed for read-in purposes.                  310 Wis. 2d 259, ¶¶85, 88,

92.

       ¶65    Straszkowski      advised         that     "prosecuting               attorneys,

defense counsel, and circuit courts should hereafter avoid (as

they did in the instant case) the terminology 'admit' or 'deemed

admitted' in referring to or explaining a defendant's agreement

to    read    in   charges."       Id.,     ¶94.        Further,          it   specifically

withdrew      language    in    the    case      law     "that       may       be    read   as
intimating that when a charge is read in a defendant must admit

       2
           The Department of Justice proposed the following language:

       "Read-in" means any crime that is uncharged or which
       is dismissed as part of a plea agreement, that the
       defendant agrees to be considered by the court at
       sentencing and that the court considers at the time of
       sentencing the defendant for the crime for which the
       defendant was convicted.

Correspondence/Memorandum: Department of Justice, Aug. 11, 1995,
at 2, in Bill Drafting File 1995 Wis. Act 141 (emphasis in
original).


                                            5
                                                                 No.    2013AP2316-CR.awb



or    is    deemed    to    admit     the    read-in      charge       for     sentencing

purposes."      Id., ¶95.

      ¶66     The    only    substantive         court    discussion         of    read-in

procedures since Straszkowski is contained in State v. Frey,

2012 WI 99, 343 Wis. 2d 358, 817 N.W.2d 436.                      In that case, the

court addressed whether a circuit court could consider dismissed

charges in imposing sentences when they were not read-in.                              Id.

Its    analysis      repeated       Straszkowski's        discussion         of    read-in

procedures and explained how they differed from charges that are

dismissed.      Id., ¶¶63-73, 77-80.

                                            II

      ¶67     Although      Straszkowski        clarified part of the read-in

procedure, it remains a thorny concept.                       The circuit court in

this case was correct when it stated that counsel's explanation

of a read-in charge——that it was not an admission of guilt, but

something that the court would look at during sentencing——was an

"accurate statement[] of law."                  Further, it correctly described

the    Plea    Questionnaire/Waiver              of   Rights     form     as      "legally
proper."3     However, even as such understandings prevail, there is

a lack of clarity when it comes to the application of read-in

procedures, especially in the context of a defendant's assertion

of innocence.

      ¶68     Confusion from the bar and the bench regarding read-in

procedures     persists,      as    is   reflected       in    unpublished        opinions

      3
       The Plea Questionnaire/Waiver of Rights form advises
defendants that "the judge may consider read-in charges when
imposing sentence. . . ."


                                            6
                                                         No.   2013AP2316-CR.awb



from the court of appeals.4        Doubtlessly some of this confusion

stems from the fact that Straszkowski withdrew language from our

precedent that some courts had been following for decades.5                 And

as I review plea and sentencing transcripts, it appears that

courts and counsel continue to rely on now withdrawn language

from past precedent.

    ¶69   Given the red flags raised by the court of appeals'

admonitions     that   the   read-in       procedure    is   not   intuitively

obvious   and    contains    the   potential      for    inconsistency      and

inherent confusion, sentencing courts and practitioners may need



    4
       See, e.g., State v. Triplett, No. 2014AP2825-CR (Wis. Ct.
App. Apr. 14, 2016) (decision on publication pending) (counsel
allegedly told defendant that "the read-in charges could not
[be] considered by the judge at sentencing because he was not
admitting to the read-in offenses"); State v. Buckles, No.
2014AP2717-CR, unpublished slip op., ¶9 (Wis. Ct. App. Nov. 10,
2015) (attorney advised defendant that "the read-in offenses
could be used by the State for restitution purposes only and not
as "aggravating" factors during sentencing"); State v. Clayton-
Jones, No. 2010AP2239-CR, unpublished slip op., ¶32 (Wis. Ct.
App. Dec. 15, 2011) ("what neither [the defendant] nor our own
non-exhaustive review of the case law makes clear is what must
minimally occur before alleged conduct is treated as a 'read-in'
for purposes of the Wisconsin rule prohibiting a future
prosecution.").
    5
       See, e.g., State v. Cleaves, 181 Wis. 2d 73, 79, 510
N.W.2d 143 (Ct. App. 1993) (observing that the defendant's
"'admission' to the charges came when he allowed the dismissed
crimes to be 'read in.'"); State v. Mattes, 175 Wis. 2d 572,
581, 499 N.W.2d 711 (Ct. App. 1993) (describing read-ins as
"admitted uncharged offense[s]"); State v. Szarkowitz, 157 Wis.
2d 740, 753, 460 N.W.2d 819 (Ct. App. 1990) (relying on Austin
for the conclusion that "In Wisconsin, when a defendant agrees
to crimes being read in at the time of sentencing, he makes an
admission that he committed those crimes.").


                                       7
                                                                            No.    2013AP2316-CR.awb



to take special care with read-in charges, especially in the

context of protestations of innocence.

       ¶70       Previously           a     unanimous        court      of        appeals     voiced

concerns         about      the       need      to     ensure     a     defendant           properly

understands the consequences of a read-in charge.                                    Cleaves, 181

Wis.       2d    at   80    n.1.           In   his    concurrence,          Judge     Nettesheim

recommended that circuit courts engage in a personal colloquy to

establish that the defendant understands all of the consequences

of a read-in charge that may apply.                           Id. at 81 (Nettesheim, J.

concurring)           (emphasis            in   original).              I         resurrect     that

recommendation.

       ¶71       Further,         I        acknowledge       that       uncertainties,           not

previously addressed by this court, continue to linger.                                     We have

advised that "the circuit court may consider the read-in charge

when imposing a sentence."                      Straszkowski, 310 Wis. 2d 259, ¶93

(emphasis added).               Similarly, the majority declares that "the

read-in         charge     will       be    considered       by   the    sentencing          court."

Majority op., ¶35 (emphasis added).                           Yet we do not explain how
read-ins        should     be     considered          when    defendants          maintain     their

innocence.

       ¶72       The absence of guidance in this area is particularly

striking considering the wealth of information that has been

provided in the somewhat analogous situation of an Alford plea.6

       6
       The term "Alford plea" refers to the practice where "the
defendant pleads guilty while either maintaining his innocence
or not admitting having committed the crime." State v. Garcia,
192 Wis. 2d 845, 856, 532 N.W.2d 111 (1995). It is named after
a United States Supreme Court case which determined that the
                                                    (continued)
                               8
                                                                   No.   2013AP2316-CR.awb



In   both      situations,     defendants         protest     their      innocence,     but

nevertheless          can   acquiesce   to        the    possibility      of    serving   a

prison sentence for the offense.

       ¶73      Given the rights that a defendant relinquishes when

entering an Alford plea, special care is taken to ensure that

such       a   plea    is   knowing,    intelligent,         and   voluntary.7           For

instance, the Wisconsin Jury Instructions recommend that courts

address "special questions to defendants to assure that they

understand that if the plea is accepted, an unequivocal criminal

judgment will be entered——a judgment that will allow imposition

of the same penalties that could follow regular guilty plea."

Wis. JI-Criminal SM-32A at 12 (1995).

       ¶74      It advises the court to "ask defense counsel to make a

statement on the record to show that the nature and consequences

of the Alford plea were thoroughly discussed with the defendant

and what the defendant's understanding of that discussion was."

Id. at 12. It also provides a script for courts to use when

accepting        Alford     pleas.      Id.       at     13-14.     These       safeguards
ameliorate       the    uncomfortable     fit       of    accepting      a     guilty   plea

while the defendant protests innocence.                       State v. Garcia, 192

Wis. 2d 845, 858, 532 N.W.2d 111 (1995).



practice was constitutional, North Carolina v. Alford, 400 U.S.
25 (1970).
       7
       The rights waived by entering an Alford plea include "the
privilege against self-incrimination, the right to a trial by
jury, and the right to confront one's accusers."        State v.
Hampton, 2004 WI 107, ¶22, 274 Wis. 2d 379, 683 N.W.2d 14.


                                              9
                                                            No.   2013AP2316-CR.awb



    ¶75      To further protect defendants entering Alford pleas,

we require strong evidence of guilt before a court can accept

such a plea.      Id., at 857.            This court has provided detailed

guidance     clarifying     that    standard,    explaining       that   it   falls

between "beyond reasonable doubt" and the proof necessary to

meet the factual basis requirement behind a guilty plea:

    The requirement of a higher level of proof in Alford
    pleas is necessitated by the fact that the evidence
    has to be strong enough to overcome a defendant's
    "protestations" of innocence.   Although strong proof
    of guilt is less than proof beyond a reasonable doubt,
    State v. Spears, 147 Wis. 2d 429, 435, 433 N.W.2d 595
    (Ct. App. 1988), it is clearly greater than what is
    needed to meet the factual basis requirement under a
    guilty plea.
State   v.   Smith,   202    Wis.    2d   21,   27,   549   N.W.2d    232     (1996)

(internal citation omitted).8             No similar guidance is available

for courts struggling with how to consider a read-in charge when

the defendant maintains innocence.



    8
       State v. Spears, 147 Wis. 2d 429, 435, 433 N.W.2d 595 (Ct.
App. 1988), similarly described the concept of "strong proof of
guilt":

    First, it is not the equivalent of proof beyond a
    reasonable doubt.    Indeed, the court suggested that
    the trial court's conclusion in that case that there
    was a factual basis for the plea "was equivalent to a
    finding that the proof of guilt was strong." Second,
    the Johnson court framed the inquiry as whether the
    record "indicates that a sufficient factual basis was
    established at the plea proceeding to substantially
    negate [the] defendant's claim of innocence."

(citing State v. Johnson, 105 Wis. 2d 657, 664, 314 N.W.2d
897 (Ct. App. 1981)).


                                          10
                                                                          No.    2013AP2316-CR.awb



       ¶76       With       our    current       precedent,       courts           and    defense

attorneys            can    give      advice    that     is     "proper"          and    "legally

accurate," even though it fails to address the ambiguities in

the read-in procedure.                  When defendants maintain their innocence

of read-in charges, it remains uncertain how those charges will

be considered.              How much weight should a sentencing court accord

to those read-in charges?                      Are there circumstances where they

are not entitled to any weight?                        Should this court adopt the

strong proof requirement set forth in Smith, 202 Wis. 2d at 27,

and Garcia, 192 Wis. 2d at 857-58?

       ¶77       I     am     mindful      of    the      legal      landscape           allowing

sentencing            courts       to    consider        all    relevant           information,

including dismissed, uncharged, and unproven offenses.                                       Frey,

343 Wis. 2d 358, ¶¶45-47.                  Nevertheless, it is not always clear

how to reconcile the concept of being able to lengthen a prison

sentence for an offense where a defendant maintains innocence

with     the         underpinnings       of     our    system     of       justice.          Those

underpinnings               include     the     presumption          of         innocence,      the
privilege        against          self-incrimination,          the     right       to    confront

one's accuser, and the right to present a defense.                                       State v.

Hampton, 2004 WI 107, ¶22, 274 Wis. 2d 379, 683 N.W.2d 14.

Absent clarification on how sentencing courts should consider

read-in charges where defendants maintain their innocence, this

tension remains unaddressed.

                                                III

       ¶78       An antidote to the confusions and uncertainties that
attend       a        read-in      offense       which     is     accompanied            with    a

                                                 11
                                                           No.   2013AP2316-CR.awb



protestation of innocence, lies in giving the defendant more

information.        I   urge   circuit      courts   and    counsel     to   make

additional efforts to guarantee that defendants understand all

the consequences of read-in charges, ensuring that the plea is

knowingly, intelligently, and voluntarily made.                  Accordingly, I

respectfully concur.

    ¶79   I    am   authorized    to     state   that   Justice     SHIRLEY    S.

ABRAHAMSON joins this concurrence.




                                       12
    No.   2013AP2316-CR.awb




1
