                                                              2013 WI 61

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:               2011AP450-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent,
                             v.
                        Julius C. Burton,
                                  Defendant-Appellant-Petitioner.

                              REVIEW OF COURT OF APPEALS DECISION
                          Reported at 340 Wis. 2d 497, 812 N.W.2d 539
                                 (Ct. App. 2012 – Unpublished)

OPINION FILED:          July 10, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          January 11, 2013

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Milwaukee
   JUDGE:               Patricia McMahon/Kevin E. Martens

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
       For the defendant-appellant-petitioner, there were briefs
by Esther Cohen Lee and Hall, Burce and Olson, S.C., Milwaukee,
and oral argument by Esther Cohen Lee.


       For the plaintiff-respondent, the cause was argued by Sally
L. Wellman, assistant attorney general, with whom on the brief
was J.B. Van Hollen, attorney general.
                                                                                  2013 WI 61
                                                                          NOTICE
                                                          This opinion is subject to further
                                                          editing and modification.   The final
                                                          version will appear in the bound
                                                          volume of the official reports.
No.   2011AP450-CR
(L.C. No.   2009CF2823)

STATE OF WISCONSIN                                    :              IN SUPREME COURT

State of Wisconsin,

            Plaintiff-Respondent,
                                                                               FILED
      v.
                                                                          JUL 10, 2013
Julius C. Burton,
                                                                             Diane M. Fremgen
            Defendant-Appellant-Petitioner.                               Clerk of Supreme Court




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



      ¶1    DAVID    T.     PROSSER,         J.      This     is     a     review      of     an
unpublished      decision    of    the       court    of     appeals,1         affirming       a

judgment    of   conviction       and   an    order of         the       Milwaukee      County
Circuit Court denying Julius C. Burton's (Burton) postconviction

motion to withdraw his guilty pleas.                         The case involves the
merits of this postconviction motion.2
      1
       State v. Burton, No. 2011AP450-CR, unpublished slip op.
(Wis. Ct. App. Feb. 14, 2012).
      2
       The Honorable Patricia D. McMahon accepted Burton's pleas
and imposed sentence. The Honorable Kevin E. Martens denied the
motion for postconviction relief.
                                                                      No.      2011AP450-CR



         ¶2     Burton pled guilty to two counts of attempted first-

degree intentional homicide.               Initially, he had entered pleas of

not guilty and then not guilty by reason of mental disease or

defect (NGI),3 but later he withdrew his not guilty pleas as part

of   a       plea   agreement.          After       he   was    sentenced     to   lengthy

consecutive         periods    of   initial          confinement,     however,     Burton

moved to withdraw his guilty pleas.

     ¶3         For purposes of this review, Burton's postconviction

motion stated two grounds for plea withdrawal.                              First, Burton

alleged        that    his    two   trial           counsel    were   ineffective        for

permitting him to withdraw his NGI pleas inasmuch as there was

no evidence in the record that counsel had informed him of the

possibility of a bifurcated plea with the right to a jury trial

focused solely on the issue of his mental responsibility.

     ¶4         Second, Burton alleged that the circuit court erred in

not advising him of the bifurcated plea and trial option during

the plea colloquy, so that Burton's resulting pleas were not

knowing, intelligent, and voluntary.
     ¶5         The first ground         alleging        ineffective        assistance    of

counsel is usually categorized as a Nelson/Bentley motion.4                              The

second        ground   alleging     a    defective       plea    colloquy     is   usually

described as a Bangert motion.5                      The circuit court denied both
         3
       The terms "not guilty by reason of mental disease or
defect," "NGI," and "insanity defense" are used interchangeably
in this opinion.
         4
       Nelson v. State, 54 Wis. 2d 489, 195 N.W.2d 629 (1972);
State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996).
         5
             State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986).
                                                2
                                                                     No.       2011AP450-CR



grounds      of     Burton's       single     motion       without       conducting       an

evidentiary hearing, and the court of appeals affirmed.                             We now

affirm the court of appeals.

      ¶6     We      conclude,      first,       that     Burton's         Nelson/Bentley

motion was insufficient.             The motion asserted that Burton's two

trial      counsel       were    ineffective     in      not    pursuing      an   NGI     or

"insanity" defense.              The motion claimed that Burton's explicit

withdrawal of that defense as part of a plea agreement must have

been based upon a failure by trial counsel to inform Burton that

he had the option of pleading guilty to the crimes but also not

guilty by reason of mental disease or defect.                              Significantly,

Burton's motion never alleged that his trial counsel failed to

inform Burton of this option.                Instead, it merely pointed to the

absence of evidence in the record that indicated that counsel

had explained this option to Burton.                           The absence of record

evidence in this situation is not enough.                           A defendant must

affirmatively        plead       facts   that,      if    true,     would      constitute

deficient performance of counsel.                   Moreover, even if deficient

performance        had    been    properly    pled,      Burton's       motion     did    not
affirmatively assert that if trial counsel had informed him of

the option of a trial focused solely upon mental responsibility,
he would have chosen that option and why he would have chosen

it.
      ¶7     The sufficiency of a Nelson/Bentley motion is critical

because      the     defendant        has     the       burden     of      proof     in     a

Nelson/Bentley           hearing.        A    Nelson/Bentley            hearing     is     an

evidentiary hearing in which a defendant is permitted to prove a
                                             3
                                                                            No.         2011AP450-CR



claim       that     his     attorney      was      constitutionally                ineffective,

producing a manifest injustice.                    It is not a fishing expedition

to try to discover error.

       ¶8     We conclude, second, that Burton's claim of a Bangert

violation also was insufficient.                     Burton failed to state that,

due to a defect in the plea colloquy, he did not enter his pleas

knowingly, intelligently, and voluntarily.                                Because Burton did

not allege his lack of personal understanding about some aspect

of the plea process, no evidentiary hearing was necessary.                                        In

any event, we do not find any defect in the plea colloquy.                                       The

circuit      court     properly       inquired          as     to        whether     Burton      was

entering       his     guilty        pleas       knowingly,              intelligently,          and

voluntarily.          The     circuit      court's          inquiry       not     only    followed

standard procedure, but also asked whether Burton was knowingly,

intelligently,         and    voluntarily          withdrawing            his     NGI    plea    and

giving up the right to present an insanity defense.

       ¶9     We     reject     Burton's         claim       of      a     Bangert       violation
because      defendants        do    not     have       a    fundamental           right    to    an

insanity plea, and it is not essential to conduct an extensive

colloquy about NGI procedure before a defendant withdraws his

plea    of    not    guilty     by    reason       of       mental       disease     or    defect.

Looking forward, we do think it is better practice for circuit

courts to conduct a personal colloquy on the bifurcated NGI plea

and trial option to confirm the defendant's understanding of the

law and to head off later claims of a Bangert violation or

ineffective assistance of counsel.

                               I. FACTUAL BACKGROUND
                                               4
                                                                    No.         2011AP450-CR



      ¶10    The underlying facts of this case are undisputed.                           On

June 9, 2009, Milwaukee Police Officers Graham Kunisch (Officer

Kunisch) and Bryan Norberg (Officer Norberg) were on routine

patrol in the area of 3rd Street and West National Avenue on the

southeast side of Milwaukee.               As the officers drove their marked

police van6 eastbound on National Avenue, they spotted 18-year-

old Burton riding his bicycle on the sidewalk, in violation of a

Milwaukee city ordinance.              They did not suspect that Burton was

carrying a concealed weapon.

      ¶11    Because   of        the     ordinance       violation,       the     officers

decided to stop Burton and conduct a field interview.                              Officer

Norberg called out to Burton to stop, but after making brief eye

contact     with   them,    he    turned       away   and    continued      riding      his

bicycle.     Officer Norberg exited the vehicle, followed Burton,

and   continually      asked       him    to     stop,      while    Officer       Kunisch

followed in the police van.

      ¶12    Officer Norberg caught up to Burton after he turned

onto South     2nd Street.             Officer    Norberg     grabbed      Burton      from
behind to gain control of him.                  Officer Kunisch got out of the

police van to help, as Burton was resisting.                        While Kunisch was
trying to gain control of Burton to perform a pat-down search,

Burton pulled out a pistol and shot Officer Norberg in the face
from a distance of about six inches.                      The bullet went through

Officer Norberg's lip, under his left nostril, through bone and

      6
       Both officers testified that in addition to driving a
marked police van, they were attired in their Milwaukee Police
uniforms with badges.

                                            5
                                                                 No.      2011AP450-CR



teeth, and exited out his face.                     A second and third bullet

wounded his shoulder and grazed his right knee.

     ¶13     Burton    also       shot    Officer     Kunisch      several     times.

Officer Kunisch suffered gunshot wounds to his left hand, right

shoulder, and the back of his neck.                  More serious, Burton shot

Officer Kunisch in his face, destroying his left eye and causing

severe damage to the left side of his skull.

     ¶14    Burton fled the scene and was later arrested after a

local homeowner reported that someone might be hiding in his

basement.      The homeowner left his residence when he heard the

commotion from the shooting, and Burton likely entered an open

basement door while the homeowner was absent.                         Police ordered

Burton out of the basement, found a pistol magazine with bullets

on his person, and discovered a semi-automatic pistol in the

basement.      After the police took Burton into custody, and after

Burton   was    advised      of    his    Miranda    rights,     he    confessed   to

shooting Officers Norberg and Kunisch.                     A videotape from the

scene of the shooting corroborated Burton's account.

                             II. PROCEDURAL HISTORY

     ¶15     Burton was charged with two counts of attempted first-

degree     intentional       homicide     by   use    of   a    dangerous    weapon,

contrary       to     Wis.        Stat.    §§ 939.32,          939.63(1)(b),       and

940.01(1)(a).7        At the initial appearance, upon the request of

Burton's counsel, the court ordered that Burton's competency be


     7
       All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.

                                           6
                                                                            No.       2011AP450-CR



evaluated.          Dr.     Kenneth        Smail     prepared          an    initial      report

recommending        further        evaluation.           The     subsequent        evaluation,

conducted by Dr. Tracy Luchetta at the Winnebago Mental Health

Institute, determined that Burton was competent to stand trial.

Neither Burton's newly retained trial counsel, Attorneys Julius

Kim     (Kim)   and       Jonathan        LaVoy     (LaVoy),          nor    Burton      himself

objected to the evaluation's conclusion.8

        ¶16   Following        a       preliminary       hearing       at     which     Officers

Norberg and Kunisch testified, the State filed an Information

charging      the   same       counts      stated       in    the     Complaint.         Defense

counsel       entered      a    plea       of     not        guilty    to     both      charges.

Approximately one month later, defense counsel added pleas of

not guilty by reason of mental disease or defect.

        ¶17   Dr.    Smail,        a    psychologist,          again    was       appointed    to

examine Burton.         Dr. Smail's report9 did not support Burton's NGI

plea.




        8
       The competency evaluator, Dr. Tracy Luchetta of the
Winnebago Mental Health Institute, noted that Burton "presents a
complicated   combination   of  current   and   past   behavioral,
perceptual, cognitive, and mood disturbances."       Nevertheless,
Dr. Luchetta found Burton competent to stand trial.             In
particular,    Dr.   Luchetta   determined    that    Burton   was
"exaggerating the subjective severity of his symptoms. . . .
Mr. Burton's apparent perceptual disturbances do not interfere
with his accurate perception of reality."
        9
       As part of his report, Dr. Smail personally interviewed
Burton, reviewed Burton's health and mental health records, his
competency evaluation, his academic reports, and various other
materials related to Burton's case.

                                                7
                                                                 No.      2011AP450-CR



      ¶18    Dr. Smail reported that Burton had a history of mental

health problems starting at age seven, when Burton was treated

for hearing voices.        Dr. Smail noted that Burton was treated as

recently as April 2009 at the Milwaukee County Mental Health

Complex.      This treatment was less than two months before the

attempted homicides.10        At various times over the years Burton

had   been     diagnosed     with        Attention       Deficient/Hyperactivity

Disorder,     Oppositional        Defiant      Disorder,      "mood       disorder,"

Bipolar Disorder, and Personality Disorder.                      After his arrest

for the attempted homicides, Burton's medical records at the

Milwaukee jail     indicate       that    he   had   a   diagnostic      history   of

schizophrenia and Attention Deficit/Hyperactivity Disorder.

      ¶19    Ultimately,    Dr.     Smail      concluded    that       while   Burton

suffered          from            "emotional               and           behavioral

disturbances, . . . there is not much objective evidence in his

record to substantiate a diagnosis that may reflect psychosis."

With regard to the attempted homicides, Dr. Smail concluded:



     Dr. Smail noted in his report that as part of his interview
with Burton he explained the purpose of his mental health
assessment of Burton.   In particular, Dr. Smail "described the
issue of exculpatory mental disease" and "described a bifurcated
trial process." After further discussion about the evaluation,
Dr. Smail noted that Burton "did appear to understand the nature
and purpose of the assessment."
      10
       On April 25, 2009, Burton was taken to the Mental Health
Complex by his family, but he insisted upon being discharged the
following day.   He was told to take certain medication and to
meet with a therapist at Acacia Clinic.        He met with the
therapist on May 11 and on June 4, 2009, five days before the
shootings.

                                          8
                                                                       No.         2011AP450-CR


       I do not believe that there is any evidence to
       reasonably sustain a diagnosis that would reflect a
       psychosis of any sort for Mr. Burton when he had the
       altercation with the police officers. . . .

            It   is  also   my  opinion   that  the evidence
       ultimately fails to indicate that Mr. Burton, at the
       time of the offense, was substantially unable to
       appreciate the wrongfulness of his conduct or conform
       his conduct to the requirements of the law.
       ¶20   Burton's      two    counsel         retained    Dr.     Dianne       Lytton   to

evaluate Burton as a defense expert and to determine whether the

evidence supported his NGI plea.                    Dr. Lytton disagreed with the

conclusions reached by Dr. Smail and concluded that, "at the

time    of   the   alleged       criminal     events,        Mr.     Burton    experienced

symptoms of psychotic disorder. . . .                      [I]n my opinion, he is

most    appropriately       diagnosed         with    schizoaffective              disorder."

Dr. Lytton noted Burton's long history of mental illness and his

family's history of mental illness.                       Dr. Lytton also disagreed

with the opinions of Drs. Luchetta and Smail that Burton was

malingering, or intentionally faking his symptoms.

       ¶21   The State offered a plea agreement to Burton in which

he would plead guilty to the two counts of attempted first-

degree intentional homicide while armed with a dangerous weapon.

In     exchange,     the        State    would        make      a     global         sentence

recommendation       of    50    years    in       confinement        and     no     specific

recommendation on extended supervision.                      The State would be free

to argue aggravating and mitigating circumstances, Burton would

be free to argue mitigating circumstances at sentencing, and the

victims      would    be        free     to        make      their     own     sentencing

recommendations.

                                              9
                                                          No.    2011AP450-CR



      ¶22    Burton accepted the State's plea offer.             On January

14, 2010, he signed a plea questionnaire/waiver of rights form

acknowledging the charges to which he was pleading guilty, the

constitutional rights he was waiving, and his understanding of

the maximum penalties that the court could impose.              Burton also

signed an addendum to the plea questionnaire/waiver of rights

form, which stated, "I understand that by pleading I am giving

up   defenses   such   as    alibi,    intoxication,   self-defense,   [and]

insanity."      (Emphasis added.)        One week later, on January 21,

2010, the circuit court held a plea hearing.

      ¶23    At the plea hearing, the court conducted a thorough

plea colloquy with Burton.            Burton was sworn in and Milwaukee

County Circuit Judge Patricia McMahon informed him that at any

time he could stop the colloquy and talk to his attorneys.                 The

judge confirmed that Burton understood the two charges to which

he was pleading guilty and the maximum penalty on each charge,

including    the   maximum    period    of   initial   confinement   and   the

maximum period of extended supervision.           The judge also informed

Burton that the court was not bound by the plea agreement and

could impose up to the maximum penalty.

      ¶24   The court confirmed that Burton had time to meet with

his attorneys and discuss his case with them, that he was making

the decision to plead guilty "freely and voluntarily," and that

he had signed and understood the plea questionnaire/waiver of

rights form and the addendum to the form.              The court noted the

constitutional rights Burton was waiving by agreeing to plead

guilty.
                                       10
                                                       No.      2011AP450-CR



     ¶25   The   court   then   conducted   a   personal     colloquy   with

Burton regarding his decision to withdraw his NGI plea:

     THE COURT: You are also giving up the right to raise
     certain defenses such as alibi or intoxication or
     self-defense or insanity. Correct?

     MR. BURTON: Yes.

     THE COURT: You talked with your attorney about
     entering, in fact I believe you did enter a plea of
     not guilty by reason of mental disease or defect.
     Correct?

     MR. BURTON: Yes.

     THE COURT: You are withdrawing that plea at this time.
     Correct?

     MR. BURTON: Yes.
     ¶26   The court also engaged Burton and his defense counsel

in an extensive discussion as to Burton's understanding of the

charges to which he was pleading guilty and the consequences of

those pleas:

    THE COURT: And counsel, are you satisfied that your
    client understands the nature of the charges, the
    effects of his plea and is making his plea freely and
    voluntarily?

    MR. LaVOY: Yes. The Sheriff's Department provided both
    myself and Mr. Kim quite a bit of access to Mr.
    Burton. We have met with him a number of times about
    defenses, the trial issues, N.G.I. issues, motions. I
    believe that he's making this decision of his own free
    will.

         We have explained to Mr. Burton [that] we
    retained experts and the experts are prepared to
    testify, if necessary. But he's informed us he wishes
    to accept responsibility by entering the pleas, so I
    believe that he is doing this of his own free will.



                                   11
                                                      No.   2011AP450-CR


     THE COURT: Mr. Burton, did your attorney describe what
     your    conversation,   general    summary   of   your
     conversation . . . with your attorney?

     MR. BURTON: Yes.

     THE COURT: So, you talked about this with your
     attorneys for the time they represented you since the
     very beginning of this case. Correct?

     MR. BURTON: Yes.

     THE COURT: And they came and talked with you and
     talked about your various options in this case.
     Correct?

     MR. BURTON: Yes.
     ¶27   The   prosecutor,   Assistant   District     Attorney   Mark

Williams, also spoke on the record to note that the defense had

an expert ready to testify that Burton was not guilty by reason

of mental disease or defect, but that Burton was waiving the

right to present that defense:

    MR.    WILLIAMS:   Judge,    there    is   a    doctor
    that . . . would render [the] opinion that Mr. Burton
    was not guilty by reason of mental disease or defect.
    I'm assuming that Mr. Burton read that report, knows
    that report is available and that he has two competent
    lawyers that would present that if the matter [went]
    to trial.

         There also is at least one doctor that finds Mr.
    Burton . . . did understand what he was doing at the
    time and would contradict that opinion.       But Mr.
    Burton is aware that there is an opinion from a doctor
    that he . . . was not guilty by mental disease or
    defects at the time and he is waiving that right to
    present that defense.

    THE COURT: Counsel, have you had that discussion with
    your client?

    MR. LaVOY: Yes. The doctor that the State's referring
    to is Dr. Lytton. That is the doctor we retained. I

                                 12
                                                         No.         2011AP450-CR


     had reviewed that report word for word with Mr.
     Burton.   He is aware of her opinion and he is aware
     that she would be prepared to testify, if necessary at
     trial.   But he indicated to me that he wishes to
     again, accept responsibility and [forgo] that issue.

          He's also aware of the other opinions that have
     been presented by the other doctors referenced by the
     State. So, it is my opinion that his position is that
     he wishes to resolve the case with a plea today.

     THE COURT: So, the not guilty by reason of mental
     disease or defect plea would be withdrawn at this time
     too?

     MR. LaVOY: That is correct.

     THE COURT: Mr. Burton, you heard what the State said
     and your counsel said. Do you disagree with anything
     that they have said so far?

     MR. BURTON: No.

     THE COURT: And they have had, your attorneys [have]
     had that conversation with you. Correct?

     MR. BURTON: Yes.

     THE COURT: And you have gone through, there is a lot
     of information here.    So, they have spent a lot of
     time with you, haven't they?

     MR. BURTON: Yes.

     THE COURT: And you specifically talked about your
     right to raise that particular defense of mental
     disease or defect. Correct?

     MR. BURTON: Yes.
     ¶28   The   circuit    court   used    the   criminal   complaint,      the

preliminary   hearing,     and   security   videotape   of     the    attempted

homicides as the factual basis for Burton's guilty pleas.                  Given

the factual basis, and its finding that Burton was entering his

pleas "freely," "intelligent[ly]," and "voluntarily," the court


                                     13
                                                                           No.      2011AP450-CR



accepted Burton's             guilty    pleas        and   found     him    guilty      of    both

counts.

        ¶29    At sentencing, the State explained that it thought the

plea bargain was fair, that it would spare the officers and

their families the burdens of going through a trial, and that it

would protect the public by ensuring that Burton would spend

much    of    the     rest     of   his    life       in    confinement.            The      State

acknowledged Burton's history of mental illness, but maintained

that Burton knew that the shootings were wrong.

        ¶30    Defense counsel pointed to Burton's long history of

mental    illness.            Nevertheless,          defense       counsel       reminded     the

court    that       Burton     chose    to      forgo      the     insanity       defense     and

decided to accept responsibility for the attempted homicides.

Counsel contended that by forgoing the defense and accepting

responsibility,         Burton       should      be        credited       for     sparing      the

officers and their families the burdens of a trial and perhaps

receive       a     sentence     that     would        allow       him     to     get   out    of

confinement at some point in his life.
       ¶31     In    imposing       sentence,        Judge     McMahon       considered       the

extreme seriousness of Burton's offenses, the devastating impact
of the shootings on the officers and their families, and the

risks that Burton posed to the community.                                Judge McMahon also
took     into       account     Burton's        history       of     mental       illness     and

credited      him     for     sparing     the    officers          and    their    families     a
trial.        Ultimately, the court sentenced Burton to 40 years of

initial confinement and ten years of extended supervision on

each count, to be served consecutively.
                                                14
                                                        No.       2011AP450-CR



     ¶32   On January 12, 2011, Burton's postconviction counsel,

Attorney   Esther Cohen Lee       (Attorney   Lee),   filed   a   motion   to

withdraw Burton's guilty pleas and vacate his convictions.11

     ¶33   Burton's postconviction motion asserted three claims,

only two of which are relevant in this review.12              First, Burton

alleged that trial counsel was ineffective "since it was obvious

from . . . the record of this matter, . . . that counsel failed

to pursue" an NGI defense and instead counseled Burton to enter

pleas of guilty.      Burton's motion also claimed that "there is

nothing in the record to indicate that defense counsel had ever

advised    [Burton]    of   the    possibility    of    entering . . . a

bifurcated plea."     The motion also claimed that:

     [I]f the defendant had been made to understand that
     the jury could certainly have accepted Dr. Lytton's
     expert opinions in this matter and, therefore, that
     the jury could have found him not guilty by reason of
     mental disease or defect, and if he had been advised
     that he could have had the jury consider that
     affirmative defense even if he had pled guilty to
     having committed the crimes charged, there is a
     reasonable probability that he would have not pled
     guilty to the crimes.      For that reason, defense


     11
       The circuit court did not accept Attorney Lee's initial
motion to withdraw Burton's guilty pleas and convictions dated
December 28, 2011, because it was in excess of 20 pages,
contrary to Rule 4.17(B) of the Local Rules of the First
Judicial District. The circuit court granted a one-time partial
exception to the rule, allowing Burton to file a 25-page motion.
     12
       Burton's postconviction motion also claimed that trial
counsel was ineffective for failing to advise him that the
circuit court was unlikely to follow the State's sentencing
recommendation. That claim was not before the court of appeals
and is not before this court.

                                    15
                                                                         No.      2011AP450-CR


       counsel's   deficient                 performance         prejudiced         the
       defendant . . . .
       ¶34     Second, Burton contended that the circuit court failed

to advise him at the plea hearing that "he had the right to a

bifurcated jury trial . . . and that he could choose to plead

guilty to the crimes and still have a jury trial" on the issue

of    mental      responsibility.            Burton       claimed      that     because    the

circuit court failed to inform him of this right to bifurcation,

his pleas were not "voluntarily, knowingly, and intelligently

made," resulting in manifest injustice.

       ¶35     Milwaukee County Circuit Judge Kevin E. Martens denied

Burton's postconviction motion without a hearing.                              Judge Martens

noted that there was a "very extensive record made during the

plea    hearing      about      the     defendant's           desire    to     withdraw     his

original [NGI] plea."             Noting the relevant portions of the plea

hearing      transcript,        Judge     Martens         concluded      that     there     was

"nothing       which     demonstrates         that       [Burton]       was     forced     into

entering       guilty       pleas . . . or            that       his      original        [NGI]

plea . . . was abandoned without reason."                          Judge Martens added
that   Judge      McMahon      "had     no    duty       to   advise     [Burton]    of     the

possibility of a bifurcated trial on his original plea when he
was    entering        guilty     pleas       to     both      charges. . . .            [Judge

McMahon] fulfilled her duties during the guilty plea colloquy."
       ¶36     The     court    of    appeals        affirmed,         holding     that     the

circuit      court     properly       denied       Burton's      postconviction          motion
without      an    evidentiary        hearing       on    either       claim.      State     v.

Burton, No. 2011AP450-CR, unpublished slip op., ¶1 (Wis. Ct.


                                               16
                                                              No.      2011AP450-CR



App. Feb. 14, 2012).          The court of appeals rejected Burton's

claim of ineffective assistance of counsel as inadequately pled

because the motion failed to allege both deficient performance

and prejudice.        Id., ¶¶12–14.         As to the claim of a Bangert

violation, the court of appeals agreed with the circuit court

that Burton failed to allege a deficiency in the plea colloquy

or   that    his   pleas    were,   in     fact,     not    entered    knowingly,

intelligently, and voluntarily.          Id., ¶¶17–18.

      ¶37    Burton   petitioned     this    court    for    review,    which    we

granted on September 27, 2012.

                           III. STANDARD OF REVIEW

      ¶38    In this case, Burton presents two issues for review.

The first issue is whether Burton's postconviction motion is

sufficient on its face to entitle him to an evidentiary hearing

on   his claim of      ineffective    assistance       of   trial     counsel   and

whether the circuit court erred in denying Burton an evidentiary

hearing.13     Whether a motion alleges sufficient facts that, if

true, would entitle a defendant to relief is a question of law

that this court reviews de novo.             State v. Allen, 2004 WI 106,

¶9, 274 Wis. 2d 568, 682 N.W.2d 433 (citing State v. Bentley,

201 Wis. 2d 303, 309–10, 548 N.W.2d 50 (1996)).                       The circuit

court must hold an evidentiary hearing if the defendant's motion

raises such facts.         Id.   (citing Bentley, 201 Wis. 2d at 310;


      13
       This opinion uses the term "trial counsel" to refer to
Attorneys Julius Kim and Jonathan LaVoy, even though Burton's
case never went to trial.      Attorneys Kim and LaVoy did not
represent Burton at his initial appearance.

                                      17
                                                                            No.          2011AP450-CR



Nelson v. State, 54 Wis. 2d 489, 497, 195 N.W.2d 629 (1972)).

"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."           Id.       (citations

omitted).

     ¶39     The second         issue       is    whether         Burton's        postconviction

motion     is     sufficient         on     its       face       to    entitle       him     to     an

evidentiary hearing on his claim of a Bangert violation, and
whether the circuit court erred in denying Burton a hearing.

Whether a defendant has properly alleged "deficiencies in the

plea colloquy that establish a violation of Wis. Stat. § 971.08

or other mandatory duties at a plea hearing is a question of law

we review de novo."               State v. Brown, 2006 WI 100, ¶21, 293

Wis. 2d 594,           716   N.W.2d 906           (citing         State     v.     Brandt,        226

Wis. 2d 610, 618, 594 N.W.2d 759 (1999)).                              Whether a defendant

has sufficiently alleged that "he did not know or understand

information that should have been provided at the plea hearing"

also is a question of law that we review de novo.                                    Id. (citing

Bentley, 201 Wis. 2d at 310).

                                       IV. ANALYSIS

     ¶40     In      this    case,        Burton's         motion      alleges       a    claim     of

ineffective          assistance      of    counsel,            which   is    subject        to    the

Nelson/Bentley           standard         for     an       evidentiary         hearing.             In

addition,       Burton       alleges       a    Bangert          violation        because      of    a

purported deficiency in the plea colloquy and implies that he
                                                 18
                                                                      No.         2011AP450-CR



did    not     enter        his     pleas        knowingly,        intelligently,           and

voluntarily.           "A    defendant           may     invoke     both     Bangert       and

Nelson/Bentley in a single postconviction motion to withdraw a

plea of guilty or no contest."                        State v. Howell, 2007 WI 75,

¶73,    301     Wis. 2d 350,             734     N.W.2d 48        (citing     Brown,        293

Wis. 2d 594, ¶42).

       ¶41    Although a defendant may invoke both types of claims

in a single postconviction motion, the pleading standards for

the two claims are different.                   Id.    We will examine the pleading
standards for each type of claim and apply them to Burton's

motion.        We   begin          our    analysis,        however,        with     a     brief

explanation of the NGI plea.

                 A. Entry of and Trial Upon an NGI Plea

       ¶42    Wisconsin Stat. § 971.15 provides criminal defendants

with an affirmative defense of not guilty by reason of mental

disease or defect.                This is known in common parlance as the

"insanity" defense.           It requires that a defendant establish to a

reasonable      certainty,          by     the        greater     weight     of     credible

evidence, that the defendant, as a result of mental disease or

defect, "lacked substantial capacity either to appreciate the

wrongfulness of his . . . conduct or conform his . . . conduct

to the requirements of law."                   Wis. Stat. § 971.15(1), (3).

       ¶43    A defendant may enter a plea of not guilty by reason

of mental disease or defect in conjunction with a plea of not

guilty.       Wis. Stat. § 971.06(1)(d).                   If the NGI plea is not

joined with a plea of not guilty, the plea admits that but for

lack    of    mental    capacity           the       defendant     committed        all    the
                                                19
                                                                 No.        2011AP450-CR



essential elements of the offenses charged.                         Id.     Then——when

there is a substantive basis for finding the crimes charged——the

court will find the defendant guilty of the elements of the

crimes, and the NGI plea will be left for trial.                          See State v.

Langenbach,    2001    WI    App       222,    ¶19,        247   Wis. 2d 933,        634

N.W.2d 916    ("[A]   defendant    can        only    be    found    not    guilty    by

reason of mental disease or defect if he or she first admits to

the criminal conduct or is found guilty.").

      ¶44   Conversely,     if   the     defendant         pleads    not    guilty    in

conjunction with an NGI plea, Wis. Stat. § 971.165(1) provides

for   the   bifurcation     of   the    guilt        and   mental      responsibility

phases of trial:

           (1) If a defendant couples a plea of not guilty
      with a plea of not guilty by reason of mental disease
      or defect:

                 (a) There shall be a separation of the
            issues with a sequential order of proof in a
            continuous trial.   The plea of not guilty shall
            be determined first and the plea of not guilty by
            reason of mental disease or defect shall be
            determined second.

                 (b) If the plea of not guilty is tried to a
            jury, the jury shall be informed of the 2 pleas
            and that a verdict will be taken upon the plea of
            not guilty before the introduction of evidence on
            the plea of not guilty by reason of mental
            disease or defect. No verdict on the first plea
            may be valid or received unless agreed to by all
            jurors.

                 (c) If both pleas are tried to a jury, that
            jury shall be the same . . . .

Wis. Stat. § 971.165(1) (emphasis added).



                                         20
                                                            No.     2011AP450-CR



       ¶45    The bifurcated trial for determining guilt and mental

responsibility was first enunciated by this court in State ex

rel.    La    Follette   v.   Raskin,   34   Wis. 2d 607,     150   N.W.2d 318

(1967).       In Raskin, the court addressed whether the insanity

defense statute at that time14 allowed for bifurcation.                Raskin,

34 Wis. 2d at 614.        The Raskin court held that a defendant was

entitled to a sequential order of proof at trial——guilt first

and    then    the   issue    of   criminal    responsibility——"to       avoid

confusion and prejudice to the jury from inculpatory statements

which were not given or intended to be used on the issue of

guilt."15      Id. at 614, 623; see also State v. Murdock, 2000 WI
App 170, ¶23, 238 Wis. 2d 301, 617 N.W.2d 175.

       14
       Wisconsin Stat. § 957.11(1) (1967–68), the then-insanity
defense statute, read as follows:

            (1) No plea that the defendant indicted or
       informed against was insane or feeble-minded at the
       time of the commission of the alleged crime shall be
       received unless it is interposed at the time of
       arraignment and entry of a plea of not guilty unless
       the court for cause shown otherwise orders. When such
       plea is interposed the special issue thereby made
       shall be tried with the plea of not guilty; and if the
       jury finds that the defendant was insane or feeble-
       minded or that there is reasonable doubt of his sanity
       or mental responsibility at the time of the commission
       of the alleged crime, they shall find the defendant
       not guilty because insane or feeble-minded.
       15
        This court reiterated the policy of avoiding confusion
and prejudice in State v. Leach, 124 Wis. 2d 648, 370 N.W.2d 240
(1985):

            The issue of not guilty by reason of mental
       disease or defect is tried separately from the
       question of whether the defendant committed the acts
       which constitute a criminal offense.   The principal
                                        21
                                                            No.    2011AP450-CR



     ¶46     Wisconsin    Stat.    § 971.175    (1969)16   codified    Raskin's

bifurcated trial process.           See § 63, ch. 255, Laws of 1969.           In

1987 the legislature replaced section 971.175 with Wis. Stat.

§ 971.165,     which      maintained     "the    basic     bifurcated       trial

procedure     with     its    sequential    order    of    proof      as    first

established in Raskin."            Murdock, 238 Wis. 2d 301, ¶23.             See

also 1987 Wis. Act 86.

     B. Burton's Claim of Ineffective Assistance of Counsel

     ¶47    The   Sixth      and   Fourteenth   Amendments    to   the     United

States Constitution guarantee a criminal defendant the right to

the effective assistance of counsel.             State v. Balliette, 2011
WI 79, ¶21, 336 Wis. 2d 358, 805 N.W.2d 334 (citing Strickland

v. Washington, 466 U.S. 668, 686 (1984)).                A defendant's claim


     purpose of bifurcation is to withhold from the jury,
     while it debates the question of guilt or innocence,
     evidence which is not legally relevant to that
     question.     This permits the defendant to fully
     litigate the issue of mental responsibility without
     compromising his ability to contest the issue of
     guilt.    Bifurcation protects both the defendant and
     the state from having to confront evidence which if
     introduced in the guilt phase, could confuse the jury
     or appeal to its prejudice or sympathy.

Id. at 662 (citations omitted).
     16
          Wisconsin Stat. § 971.175 (1969) read in part:

          When a defendant couples a plea of not guilty
     with a plea of not guilty by reason of mental disease
     or defect, there shall be a separation of the issues
     with a sequential order of proof before the same jury
     in a continuous trial. The guilt issue shall be heard
     first and then the issue of the defendant's mental
     responsibility.

                                       22
                                                                   No.      2011AP450-CR



of ineffective assistance has two components.                       Strickland, 466

U.S.    at   687.     First,      a   "defendant     must    show    that      counsel's

performance was deficient."              Id.    Second, a defendant must show

that    counsel's     deficient        performance    prejudiced         the    defense.

Id.

       ¶48   A defendant does not show the element of deficient

performance        "simply   by       demonstrating       that    his    counsel     was

imperfect or less than ideal."              Balliette, 336 Wis. 2d 358, ¶22.

Rather, "the proper standard for attorney performance is that of

reasonably     effective       assistance"      by    a     "reasonably        competent

attorney."         Strickland, 466 U.S. at 687.                  "The benchmark for

judging any claim of ineffectiveness must be whether counsel's

conduct so undermined the proper functioning of the adversarial

process that the trial cannot be relied on as having produced a

just result."        Id. at 686.         When a court considers this issue,

"counsel      is    strongly      presumed      to    have       rendered       adequate

assistance" to the defendant, id. at 690; thus, "the law affords

counsel the benefit of the doubt."                 Balliette, 336 Wis. 2d 358,

¶27.

       ¶49   As a general rule, a defendant who shows deficient

performance of counsel cannot presume prejudice.                          Strickland,

466 U.S. at 692–93.17             Instead, a defendant must affirmatively
       17
       There are some exceptions to the rule.       "Actual or
constructive denial of the assistance of counsel altogether is
legally presumed to result in prejudice."        Strickland v.
Washington, 466 U.S. 668, 692 (1984).      In addition, actual
conflict of interest will result in a "similar, though more
limited, presumption of prejudice."    Id.  See also Cuyler v.
Sullivan, 446 U.S. 335, 348, 350 (1980).

                                           23
                                                                             No.      2011AP450-CR



prove prejudice by "show[ing] that particular errors of counsel

were unreasonable" and that those errors "had an adverse effect

on the defense."                  Id. at 693.           Therefore, the proper test for

prejudice in the context of ineffective assistance of counsel is

whether         "there       is    a   reasonable         probability         that,       but     for

counsel's unprofessional errors, the result of the proceeding

would         have    been    different.           A     reasonable         probability         is    a

probability sufficient to undermine confidence in the outcome."

Id. at 694; Balliette, 336 Wis. 2d 358, ¶24.
         ¶50     To     establish           prejudice          in    the      context        of       a

postconviction             motion      to   withdraw       a    guilty       plea    based      upon

ineffective           assistance       of    counsel,       the     defendant       must    allege

that "but for the counsel's errors, he would not have pleaded

guilty and would have insisted on going to trial."                                  Bentley, 201

Wis. 2d at           312     (quoting       Hill    v.    Lockhart,         474    U.S.    52,       59

(1985)).

         ¶51     Ineffective assistance of trial counsel may be raised

in   a        postconviction        motion     under       Wis.     Stat.     § 974.02.           The

evidentiary hearing evaluating counsel's effectiveness is widely

referred         to    as     a    Machner     hearing.             State    v.     Machner,         92

Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).18
         18
       In State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct.
App. 1979), the court of appeals explored the hearing that
results "where a counsel's conduct at trial is questioned." Id.
at 804.     The term "Machner hearing" appears to have been
extended to include all hearings challenging the effectiveness
of trial counsel or preconviction counsel.      A Nelson/Bentley
hearing is one subset of a Machner hearing. A Bangert hearing,
which involves an alleged deficiency on the part of a judge, is
not a subset of a Machner hearing.

                                                   24
                                                                            No.         2011AP450-CR



        ¶52    Generally, a motion must "[s]tate with particularity

the grounds for the motion and the order or relief sought."

Wis.     Stat.        § 971.30(2)(c).                    This      court      has        developed

particularized standards for Nelson/Bentley motions to secure an

evidentiary       hearing         on   a    claim       of     ineffective        assistance     of

trial counsel.

        ¶53    In Nelson, the court rejected the defendant's argument

that an evidentiary hearing must be held whenever a defendant

moves    to    withdraw       a    plea      of     guilty,       unless     the    defendant's

motion    is     patently         frivolous.                 Nelson,   54   Wis. 2d at         495.
Instead, the Nelson court held:

       [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.     However, [1] if the
       defendant fails to allege sufficient facts in his
       motion to raise a question of fact, or [2] presents
       only conclusionary allegations, or [3] 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.    It is incumbent upon the trial
       court to form its independent judgment after a review
       of the record and pleadings and to support its
       decision by written opinion.
Id. at 497–98 (footnote omitted).

        ¶54    In Bentley, a defendant sought to withdraw his guilty
pleas     on    the    basis       of       ineffective          assistance        of     counsel.

Bentley, 201 Wis. 2d at 307.                   Bentley noted that a defendant may
withdraw a guilty plea after sentencing "only upon a showing of

'manifest injustice' by clear and convincing evidence."                                     Id. at

311     (citing       State       v.       Rock,        92     Wis. 2d 554,        558–59,      285


                                                   25
                                                         No.    2011AP450-CR



N.W.2d 739 (1979)).       The "manifest injustice" requirement is met

if a defendant is denied the effective assistance of counsel.

Id. (citations omitted).       The Bentley court relied on Nelson for

the criteria in determining whether a hearing is required on a

motion   to    withdraw   a   guilty   plea,   but   restated   the   Nelson

holding as a two-part test:

     If the motion on its face alleges facts which would
     entitle the defendant to relief, the circuit court has
     no discretion and must hold an evidentiary hearing.
     Whether a motion alleges facts which, if true, would
     entitle a defendant to relief is a question of law
     that we review de novo.

         However, if the motion fails to allege sufficient
    facts, the circuit court has the discretion to deny a
    postconviction motion without a hearing based on any
    one of the three factors enumerated in Nelson.    When
    reviewing a circuit court's discretionary act, this
    court uses the deferential erroneous exercise of
    discretion standard.
Id. at 310–11 (citations omitted.)
     ¶55      The Bentley court continued:

          This   court   has  long   held   that   the  facts
     supporting plea withdrawal must be alleged in the
     petition and the defendant cannot rely on conclusory
     allegations,    hoping  to    supplement    them  at   a
     hearing . . . .

    The nature and specificity of the required supporting
    facts will necessarily differ from case to case.
    However, a defendant should provide facts that allow
    the reviewing court to meaningfully assess his or her
    claim.

Id. at 313–14 (citations omitted).
     ¶56      Howell clarified the Bentley restatement of the Nelson

test.    "The correct interpretation of Nelson/Bentley is that an


                                       26
                                                                            No.      2011AP450-CR



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.

      ¶57      State v. Hampton, 2004 WI 107, 274 Wis. 2d 379, 683

N.W.2d 14, and Allen fleshed out the requirement for sufficient

facts     that      would      allow       a    court     to    meaningfully          assess     a

defendant's claim in a postconviction motion.

      ¶58      In    Hampton,         we       discussed       the     difference       between
Bangert claims of a defective plea colloquy and Nelson/Bentley

claims    of     ineffective          assistance        of     counsel.           Hampton,     274

Wis. 2d 379,         ¶¶50–65.          While       Bangert-type            claims    require     a

defendant to point to a specific deficiency in the plea colloquy

and   assert        an    unknowing,        unintelligent,           and    involuntary      plea

because     of      that      deficiency,          Nelson/Bentley-type              claims     are

different in that they assert a legal conclusion.                                 Id., ¶¶57–58.

"[Nelson/Bentley-type] legal conclusions cry out for supporting

facts, and these supporting facts must be alleged to satisfy the

defendant's         burden      for    an      evidentiary       hearing."           Id.,    ¶58.

Hampton continued:

      [T]he   Bentley   court  explained  that   normally   a
      defendant is entitled to withdraw a guilty plea after
      sentencing only upon a showing of "manifest injustice
      by clear and convincing evidence." When, for example,
      the basis for this injustice is an allegation that
      defendant involuntarily entered a plea because of the
      ineffective assistance of counsel, his claim raises
      questions   about   both  deficient   performance   and
      prejudice.    To establish deficient performance, a
      defendant must necessarily provide the factual basis
      for the court to make a legal determination. To show

                                                 27
                                                                No.       2011AP450-CR


     prejudice, a defendant must do more than merely allege
     that he would have pleaded differently but for the
     alleged deficient performance. He must support that
     allegation with "objective factual assertions."
Id., ¶60 (citations omitted).

     ¶59    Hampton     added    that     "[i]n        Bentley–type     cases,    the

defendant has the burden of making a prima facie case for an

evidentiary       hearing . . . .         The     defendant      must    prove    the

linkage between his plea and the purported defect."                       Id., ¶63.

Ultimately, "[t]he defendant's proof must add up to manifest

injustice."       Id.
     ¶60    The Allen court noted that "the sufficiency standard

for postconviction motions requires more from a defendant" than

for pretrial motions where a defendant has the "opportunity to

develop     the    factual     record."      Allen,       274   Wis. 2d 568,      ¶11

(citations omitted).         Thus, the Allen court offered a practical

blueprint         for   specificity          in        postconviction       motions,

recommending that:

    postconviction motions sufficient to meet the Bentley
    standard allege the five 'w's' and one 'h'; that is,
    who, what, where, when, why, and how.   A motion that
    alleges, within the four corners of the document
    itself, . . . material factual objectivity . . . will
    necessarily include sufficient material facts for
    reviewing courts to meaningfully assess a defendant's
    claim.
Id., ¶23 (footnote omitted).
      C. Nelson/Bentley Standard Applied to Burton's Motion

     ¶61    Against this background, we turn to the allegations of

ineffective       assistance    of   counsel      in    Burton's      postconviction

motion.


                                        28
                                                                             No.      2011AP450-CR



      ¶62   Burton's        motion      alleged          that       his   trial     counsel     was

ineffective under both prongs of the Strickland test.                                       Burton

alleged that trial counsel's performance was deficient "since it

was   obvious     from . . . the             record       of    this      matter, . . . that

counsel failed to pursue" an NGI defense and instead counseled

Burton to enter pleas of guilty.                         Burton's motion also claimed

that "there is nothing in the record to indicate that defense

counsel     had    ever         advised      [Burton]           of    the     possibility        of

entering . . . a           bifurcated        plea."            Burton's         motion     alleged

prejudice    to    the      defendant        in     that       if    he   had      known   of   the

possibility       of   a    bifurcated        trial        on       mental      responsibility,

"there is a reasonable probability that he would not have pled

guilty to the crimes."

      ¶63   We     conclude        that      Burton's          motion       was     insufficient

because it did not adequately plead deficient performance by

Burton's trial counsel.                Burton's motion pointed to the record

and suggested that because the record did not show that counsel

informed    Burton         of    the   possibility             of     a   bifurcated        trial,

Burton's     counsel        must       not        have     informed          Burton        of   the
possibility of a bifurcated trial.                       This is a shaky inference at

best, inasmuch as virtually all meetings between attorneys and
clients are not "on the record."                    Burton's motion did not allege

that his counsel never informed him that he had the option to
plead guilty to the crimes and have a jury determine his mental

responsibility.            We     suspect         that     Burton's         attorney       crafted

Burton's motion the way she did to push his arguments as far as

the facts allowed.
                                               29
                                                                       No.       2011AP450-CR



      ¶64    But it is not enough for the postconviction motion to

allege that the record does not show that Burton was told about

his   options.        To    obtain         an     evidentiary        hearing         based    on

ineffective assistance of counsel, Burton was required to assert

that his counsel in fact failed to tell him this information.

He was also required to assert that this failure to inform him

of his prerogatives was so serious an error that it fell below

the standard of reasonable performance by reasonable counsel,

such that counsel was not functioning as counsel, as guaranteed

by the Sixth Amendment.              Strickland, 466 U.S. at 687.                     Burton's

motion failed to make this elementary allegation of deficient

performance.       Burton's motion is conclusory and lacks sufficient

material facts to establish a failure to inform.                                The motion

presents a hypothesis, not an offer of proof.

      ¶65    The   record       in   this       case    does    not     reveal        all    the

information that trial counsel provided to Burton in regard to

his   plea   option,      nor    should         it.    As     the    State     observed,       a

criminal record does not contain all the information that trial

counsel provides to a defendant.                  At a plea hearing, a record is

made to establish that a defendant enters his plea knowingly,

intelligently,      and    voluntarily.               Trial    counsel        must     provide

enough information to a defendant that any plea is made with a

constitutionally-required               degree          of          understanding            and

willingness.       However, the record is not likely to contain a

detailed     recitation         of   all        information     that         trial     counsel

provided to the defendant throughout counsel's representation.


                                            30
                                                                      No.      2011AP450-CR



      ¶66    Here,      the     plea     hearing       transcript           reveals        that

Burton's counsel          communicated with him about "N.G.I. issues,"

retained experts who were ready to testify should Burton go to

trial on an NGI plea, talked to Burton about "[his] various

options     in   this    case,"    and    "specifically          talked      about     [his]

right to     raise      that    particular        defense   of    mental      disease       or

defect."     These statements in the record permit inferences about

the information provided to Burton that are very different from

the inferences that Burton's motion urges the court to draw.

      ¶67    A complete record was made of Burton's decision to

forgo an NGI defense and enter a plea of guilty.                            Burton cannot

now allege a purported gap in the record as justification to

turn a requested evidentiary hearing into a fishing expedition.

Either Burton's two counsel told him about the possibility of a

bifurcated trial on mental responsibility or they did not.                                  If

trial counsel did not tell him, Burton should have alleged this

failure on the basis of his personal knowledge.                         In the absence

of such an allegation, there is an insufficient factual basis

for    investigating          deficient      performance         of    counsel        in    an
evidentiary hearing.19

      ¶68    Even if we were to conclude that Burton's allegation
of    deficient      performance       was        sufficient,     Burton       was     still

required to allege sufficient facts to show that the deficient


      19
       Moreover, Burton's motion did not allege that he did not
know that he could have a bifurcated trial on mental
responsibility, another claim necessary to sufficiently allege
deficient performance of counsel.

                                             31
                                                                            No.     2011AP450-CR



performance prejudiced his defense.                           Burton's motion fails in

this regard, too, because it does not assert how the option of

bifurcation on mental responsibility would have caused him to

decline the plea bargain and proceed to trial.

       ¶69        Burton's motion alleged that had he known about the

option       of    bifurcation       on    mental       responsibility,           "there       is   a

reasonable probability that he would not have pled guilty to the

crimes."           This    is     speculation,        not     assertion.           The       State's

proffered sentencing recommendation was not especially generous

but the charges were so serious that the State could have argued

for much more time.               Had Burton not accepted the plea agreement,

he would likely have pled guilty to the charged crimes——with no

sentence recommendation——and taken his chances with a jury on

the issue of mental responsibility.

       ¶70        Burton's motion asserted that he could have presented

the    report        of     his     retained       expert,         Dr.   Lytton,         and       her

assessment of his mental health at the mental responsibility

phase of a bifurcated trial.                     Essentially, Burton contended that

had he known of the option to a bifurcated trial on mental
responsibility,            he     could    have    presented         this     mental         illness

evidence      to     the    jury     and    the    lack       of    opportunity         to    do    so
constituted prejudice to his defense.                              On the other hand, the

State would have presented contrary evidence from Dr. Smail and
Dr. Luchetta, the competency evaluator.                            The jury would have had

to    find    Dr. Lytton's          opinion       more      persuasive       than       the other

experts.           Burton       would     have    had    to    convince       a    jury       "to   a

reasonable         certainty        by    the    greater       weight    of       the    credible
                                                 32
                                                               No.      2011AP450-CR



evidence" that, at the time he admittedly attempted to kill two

police officers, his conduct was the result of mental disease or

defect.    Wis. Stat. § 971.15(3).

     ¶71     We conclude that Burton failed to allege sufficient

material facts to support a claim of ineffective assistance of

counsel, and the circuit court did not err in denying Burton's

motion without an evidentiary hearing.

                D. Burton's Claim of a Bangert Violation

     ¶72     Burton's     motion    also       alleged   a   Bangert    violation.

Burton alleges that he had a right to plead guilty to the crimes

and to have a jury determine whether he suffered from mental

disease    or   defect.      Burton       contends   that    the     circuit   court

failed to advise him of this right during the plea colloquy, and

consequently     his    pleas      were    not    knowing,    intelligent,       and

voluntary.      Burton contends, in essence, that the plea colloquy

outlined in Brown20 must be substantially modified whenever a

defendant contemplates withdrawal of an NGI plea.

     20
       To ensure a knowing, intelligent, and voluntary plea, a
court must, at a plea hearing and on the record, address the
defendant personally and:

     (1) Determine the extent of the defendant's education and
general comprehension so as to assess the defendant's capacity
to understand the issues at the hearing;

     (2) Ascertain whether any promises, agreements, or threats
were made in connection with the defendant's anticipated plea,
his appearance at the hearing, or any decision to forgo an
attorney;

     (3) Alert the defendant to the possibility that an
attorney may discover defenses or mitigating circumstances that
would not be apparent to a layman such as the defendant;

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       ¶73    The   duties    of   the   court    established     in     Wis.   Stat.

§ 971.08 and in Bangert and its progeny are designed to ensure

that   a     defendant's     guilty   or    no   contest   plea     is   knowingly,

intelligently, and voluntarily entered.                 Brown, 293 Wis. 2d 594,

¶23; Hampton, 274 Wis. 2d 379, ¶21.                 "When a defendant pleads

guilty or no contest, he or she waives several constitutional

rights, including the privilege against self-incrimination, the


     (4) Ensure the defendant understands                     that if he is
indigent and cannot afford an attorney, an                    attorney will be
provided at no expense to him;

      (5) Establish the defendant's understanding of the nature
of the crime with which he is charged and the range of
punishments to which he is subjecting himself by entering a
plea;

     (6) Ascertain personally whether a factual basis exists to
support the plea;

     (7) Inform the defendant of the constitutional rights he
waives by entering a plea and verify that the defendant
understands he is giving up these rights;

     (8) Establish personally that the defendant understands
that the court is not bound by the terms of any plea agreement,
including recommendations from the district attorney, in every
case where there has been a plea agreement;

     (9) Notify the defendant of the direct consequences of his
plea; and

     (10) Advise the defendant that "If you are not a citizen of
the United States of America, you are advised that a plea of
guilty or no contest for the offense [or offenses] with which
you are charged may result in deportation, the exclusion from
admission to this country or the denial of naturalization, under
federal law," as provided in Wis. Stat. § 971.08(1)(c).

State v. Brown, 2006 WI 100,                     ¶35,   293   Wis. 2d 594,       716
N.W.2d 906 (footnotes omitted).

                                           34
                                                                                      No.         2011AP450-CR



right    to        a    trial          by    jury,        and     the     right     to     confront       one's

accusers."              Hampton,             274    Wis. 2d 379,              ¶22   (citing       Boykin    v.

Alabama,       395          U.S.       238,       243     (1969)).            Waiving       constitutional

rights must be knowing, intelligent, and voluntary acts "done

with    sufficient                   awareness       of      the        relevant     circumstances         and

likely consequences."                        Brady v. United States, 397 U.S. 742, 748

(1970) (footnote omitted).                           Thus, before a court accepts a plea

of   guilty            or       no    contest,          it     must      "[a]ddress         the    defendant

personally and determine that the plea is made voluntarily with

understanding of                     the nature           of      the    charge      and    the    potential

punishment if convicted."                          Wis. Stat. § 971.08(1)(a).

       ¶74     If           a    circuit          court      fails       to     fulfill     one    of    these

duties        at       the        plea       hearing,             and     the    defendant        "did     not

understand an aspect of the plea because of the omission," the

defendant may                   move to       withdraw            his    plea,      alleging      a   Bangert
violation.             Brown, 293 Wis. 2d 594, ¶36.

        ¶75    The procedure for filing a Bangert motion has been

explained as follows:

       The defendant must file a postconviction motion under
       Wis. Stat. § 809.30 or other appropriate statute. The
       motion must (1) make a prima facie showing of a
       violation of Wis. Stat. § 971.08(1) or other court-
       mandated duties by pointing to passages or gaps in the
       plea hearing transcript; and (2) allege that the
       defendant did not know or understand the information
       that should have been provided at the plea hearing.
Id., ¶39 (citing Bangert, 131 Wis. 2d at 274) (emphasis added).

        ¶76    In           Brown,          the    defendant's            motion      stated       that    the

record failed to demonstrate that he actually understood the


                                                             35
                                                                        No.        2011AP450-CR



elements of the crimes to which he pled guilty.                               Brown's motion

did not make a direct allegation.                Id., ¶61.          Consequently, this

court was concerned with the lack of a direct allegation that

the defendant did not know or understand some aspect of his

plea.    Id., ¶62.         We explained:

    [I]f the defendant is unwilling or unable to assert a
    lack of understanding about some aspect of the plea
    process,   there   is   no   point   in   holding   a
    hearing. . . .   In the absence of a claim by the
    defendant that he lacked understanding with regard to
    the plea, any shortcoming in the plea colloquy is
    harmless.
Id., ¶63.

        ¶77   The Brown court cautioned that in the ordinary case,

defense counsel should plead with particularity a defendant's

lack of understanding.           Id., ¶67.

        ¶78   Only    if     "the    motion      establishes             a     prima       facie

violation of Wis. Stat. § 971.08 or other court-mandated duties

and makes      the    requisite     allegations"           must    the       court      hold an

evidentiary        Bangert    hearing.        Id.,    ¶40.         Thus,          the   initial

burden     rests     with     the   defendant        to    show     a     defective          plea

colloquy      and    allege     that     he     did       not     know       or    understand

information        that    should   have      been    provided          during       the     plea

colloquy.     Hampton, 274 Wis. 2d 379, ¶46.

        ¶79   In    this    case,   Burton's      motion        was      insufficient          to

require an evidentiary hearing.                 Burton's motion did not allege

that at the time his pleas were entered, he did not know or

understand that he had the option of a bifurcated trial on the

issue    of   mental       responsibility       after      pleading          guilty     to   the


                                           36
                                                                 No.      2011AP450-CR



crimes.        Rather, Burton asserted in his motion that there was

nothing in the record that indicated he was ever made aware of

his    "right"    to    a    bifurcated    trial   on   mental     responsibility;

thus,    his    plea    was   not   knowing,    intelligent,       and    voluntary.

Burton failed to plead with particularity that he entered his

plea unknowingly, unintelligently, and involuntarily because he

did not understand his procedural rights.

       ¶80     More important, Burton's motion failed to identify a

real    deficiency      in    the   plea    colloquy.     Neither        Wis.     Stat.

§ 971.08,       nor    the    procedures     mandated    by   Bangert       and    its

progeny, require a court to inform a defendant during a plea

colloquy that he may plead guilty to a crime and still have a

jury trial on the issue of mental responsibility.                        Because the

trial court was not required to inform Burton of this option,

there was no deficiency in the plea colloquy.

        ¶81    The issue of whether a circuit court must engage the

defendant in a personal colloquy on the option of a bifurcated

trial on mental responsibility was carefully analyzed in State

v. Francis, 2005 WI App 161, 285 Wis. 2d 451, 701 N.W.2d 632.

In Francis, a defendant initially pled not guilty to several

criminal charges and concurrently entered an NGI plea.                      Id., ¶6.

After a mental health examination concluded that the defendant's

psychopathology would not support an NGI plea, the State offered

the defendant a plea bargain that she accepted.                        Id., ¶¶8–11.

Pursuant to the plea agreement, the defendant withdrew her not

guilty and NGI pleas and then pled guilty and no contest to

several charges.            Id., ¶11.      In her postconviction motion, the
                                           37
                                                               No.     2011AP450-CR



defendant alleged, inter alia, that "the circuit court erred

when it accepted her pleas of guilty and no contest without

ascertaining     via      a    personal    colloquy    that    [the    defendant]

intended to abandon her earlier NGI plea."                      Id., ¶12.      The

circuit court denied the motion in all respects.                 Id., ¶13.

      ¶82    On review, the court of appeals concluded that circuit

courts     "engage   in       personal    colloquies   in     order   to   protect

defendants      against          violations      of      their        fundamental

constitutional rights."           Id., ¶1.     Because neither the federal
constitution nor the Wisconsin Constitution confers a right to

an insanity defense, a court has no obligation to personally

address a defendant in regard to the withdrawal of an NGI plea.21

Id.
      21
       The United States Supreme Court has never held that a
defendant has a constitutional right to present an affirmative
insanity defense.    See, e.g., Medina v. California, 505 U.S.
437, 449 (1992) (citing Powell v. Texas, 392 U.S. 514, 536-37
(1968) ("[W]e have not said that the Constitution requires the
States to recognize the insanity defense."); see also 22 C.J.S.
Criminal   Law   § 501   (2013)  ("There   is   no  independent
constitutional right to plead insanity as a defense to criminal
charges.") (footnote omitted).

     Several state courts also have concluded there is no
federal constitutional right to an insanity defense. See, e.g.,
State v. Bethel, 66 P.3d 840, 851 (Kan. 2003), cert. denied 540
U.S. 1006 (2003); State v. Herrera, 895 P.2d 359, 366 (Utah
1995); State v. Searcy, 798 P.2d 914, 919 (Idaho 1990) (noting
that neither the federal constitution nor the state constitution
contains any language setting forth any right to an insanity
plea); State v. Korell, 690 P.2d 992, 999 (Mont. 1984) ("The
United States Supreme Court has never held that there is a
constitutional right to plead an insanity defense."). See also
Parkin v. State, 238 So. 2d 817, 822 (Fla. 1970).         Idaho,
Kansas, Montana, and Utah have virtually abolished the insanity
defense. State v. Delling, 267 P.3d 709, 711 n.1 (Idaho 2011).

                                          38
                                                                    No.         2011AP450-CR



      ¶83    The Francis court did, however, offer this suggestion:

           While we hold that a personal colloquy is not
      required to withdraw an NGI plea, we believe it is
      nonetheless advisable for trial courts to engage in
      personal colloquy for at least two reasons: First, it
      helps satisfy the court that the defendant is aware
      and alert as to what is going on. Second, the record
      is protected from later ineffective assistance of
      counsel claims where a convicted defendant might
      assert   that   counsel  never   discussed  the   NGI
      withdrawal.
Id., ¶27 n.5.

      ¶84    We agree.        We believe it is the better practice for

courts to engage the defendant in a personal colloquy on his or

her withdrawal of an NGI plea.                   It is also advisable for both

defense counsel and the State to help the court make a record of

the    defendant's         NGI     plea     withdrawal        and         his       knowing,

intelligent, and voluntary plea of guilty or no contest.22

      ¶85    In   this     case,   the    court,     defense    counsel,             and    the

prosecutor     were    very      diligent    and    professional           at       the    plea

hearing.       All    of   them    worked    together    to    ensure           a   complete

      22
           One criminal practice manual suggests:

           The withdrawal of an NGI plea should be clearly
      noted on the record.    The court should question the
      defendant to ensure that the defendant agrees with the
      decision to withdraw the insanity defense and that the
      decision was based upon the advice of counsel.       A
      careful record of the plea's withdrawal will eliminate
      or   minimize   later   time-consuming   hearings   on
      ineffective assistance of counsel or the assertion
      that the plea was withdrawn without the defendant's
      permission.

Christine M. Wiseman & Michael Tobin, 9 Wis. Practice: Criminal
Practice and Procedure § 17:33, at 534–35 (2d ed. 2008).

                                            39
                                                              No.        2011AP450-CR



record of Burton's knowing, intelligent, and voluntary entry of

a guilty plea and withdrawal of an NGI plea.                  The court engaged

in a personal colloquy with Burton on whether he was making his

plea   voluntarily,      whether   he    understood    that       he    was   waiving

certain fundamental rights, and whether he was freely giving up

his right to pursue an NGI defense.                  Defense counsel went on

record to establish that an expert had been retained who would

support      an    NGI    plea,    but        that   Burton       was     accepting

responsibility and pleading guilty.              The prosecutor also wanted

the record to reflect that, despite having retained an expert on

mental health and two competent defense attorneys, Burton was

choosing to forgo an NGI defense and accept responsibility, a

fact that Burton confirmed on the record.

       ¶86   Although the plea colloquy was sound, we take this

opportunity to emphasize the important issue of mental illness

in our state correctional system.               As of June 2008, 31 percent

of all inmates incarcerated in adult correctional facilities in

Wisconsin were identified as mentally ill.                 Inmate Mental Health

Care, Report 09-4, at 25, Legislative Audit Bureau, Madison,

Wis.    During the period from June 2006 to June 2008, the number

of mentally ill inmates increased from 6,084 to 6,957, or 14.3

percent.     Id. at 24.     While some mentally ill inmates are housed

in specialized facilities, many are housed with other inmates.

Id. at 33.        Trained staff who provide therapy to mentally ill

inmates and the resources for helping them are limited; hence,

troubled     individuals    may    not    always     get    the     mental     health

treatment they need.         See id. at 37–38.             While this sobering
                                         40
                                                                       No.       2011AP450-CR



information          does    not    change    our    analysis     or     conclusion,       it

underscores the better practice of courts engaging in personal

colloquies with defendants about the withdrawal of NGI pleas.23

      ¶87      Because Burton did not specifically plead to his lack

of knowledge or understanding at the plea colloquy, and because

there was no deficiency in the plea colloquy, we conclude that

the   circuit        court     properly      rejected      Burton's      Bangert     motion

without an evidentiary hearing.

                                       V. CONCLUSION

        ¶88     We     conclude,      first,       that    Burton's          Nelson/Bentley
motion was insufficient.               The motion asserted that Burton's two

trial        counsel    were       ineffective      in    not   pursuing        an   NGI   or

"insanity" defense.                The motion claimed that Burton's explicit

withdrawal of that defense as part of a plea agreement must have

been based upon a failure by trial counsel to inform Burton that

he had the option of pleading guilty to the crimes but also not

guilty by reason of mental disease or defect.                                Significantly,

Burton's motion never alleged that his trial counsel failed to

inform Burton of this option.                 Instead, it merely pointed to the

        23
       See generally Report of the Chief Justice's Task Force on
Criminal Justice and Mental Health (Sept. 2010).       The Task
Force's mission was "to develop models of research-based, cost-
effective intervention processes that can be implemented to
improve responses of the criminal justice system to persons with
mental illness." Id. at 1. The Task Force's report highlights
current initiatives across the state that both "improve public
safety and the plight of persons with mental illnesses who come
into contact with the criminal justice system." Id. at 5. The
report also inventories gaps in the criminal justice and mental
health systems, and suggests programs and procedures to
institute statewide. Id.

                                              41
                                                                   No.      2011AP450-CR



absence of evidence in the record that indicated that counsel

had explained this option to Burton.                      The absence of record

evidence in this situation is not enough.                          A defendant must

affirmatively       plead       facts   that,      if   true,      would    constitute

deficient performance of counsel.                  Moreover, even if deficient

performance       had    been    properly    pled,      Burton's      motion     did    not

affirmatively assert that if trial counsel had informed him of

the option of a trial focused solely upon mental responsibility,

he would have chosen that option and why he would have chosen

it.

      ¶89   The sufficiency of a Nelson/Bentley motion is critical

because     the     defendant        has     the     burden     of       proof     in     a

Nelson/Bentley          hearing.        A    Nelson/Bentley          hearing      is     an

evidentiary hearing in which a defendant is permitted to prove a

claim that his attorney was constitutionally ineffective; it is

not a fishing expedition to try to discover error.

      ¶90   We conclude, second, that Burton's claim of a Bangert

violation also was insufficient.                 Burton failed to state that,

due to a defect in the plea colloquy, he did not enter his pleas

knowingly, intelligently, and voluntarily.                      Because Burton did

not allege his lack of personal understanding about some aspect

of the plea process, no evidentiary hearing was necessary.                               In

any event, we do not find any defect in the plea colloquy.                              The

circuit     court       properly    inquired       as   to    whether      Burton       was

entering     his        guilty     pleas     knowingly,       intelligently,            and

voluntarily.        The     circuit     court's     inquiry     not      only    followed

standard procedure, but also asked whether Burton was knowingly,
                                            42
                                                                      No.         2011AP450-CR



intelligently,      and     voluntarily       withdrawing            his    NGI    plea    and

giving up the right to present an insanity defense.

       ¶91   We    reject    Burton's      claim        of      a    Bangert       violation

because      defendants     do    not   have       a    fundamental         right     to    an

insanity plea, and it is not essential to conduct an extensive

colloquy about NGI procedure before a defendant withdraws his

plea   of    not   guilty    by   reason      of       mental       disease    or    defect.

Looking forward, we do think it is better practice for circuit

courts to conduct a personal colloquy on the bifurcated NGI plea

and trial option to confirm the defendant's understanding of the

law and to head off later claims of a Bangert violation or
ineffective assistance of counsel.



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

affirmed.




                                         43
    No.   2011AP450-CR




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