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Criminal Procedure — ineffective assistance

Wisconsin Court of Appeals

Criminal

Criminal Procedure — ineffective assistance

Kelly J. McCredie appeals pro se from an order summarily denying his Wis. Stat. § 974.06 (2009-10) postconviction motion. He asserts that he is entitled to an evidentiary hearing to determine whether he received the ineffective assistance of postconviction and trial counsel based on trial counsel’s failure to (1) object to the submission of a lesser-included offense, (2) discuss with McCredie his decision not to testify in light of the lesser-included offense, (3) challenge the charges as multiplicitous, and (4) investigate the physical disparity between McCredie and his brother. We conclude that McCredie is not entitled to an evidentiary hearing because his allegations, even if proven, do not demonstrate that he received the ineffective assistance of trial counsel. See State v. Bentley, 201 Wis. 2d 303, 309-11, 548 N.W.2d 50 (1996) (where a defendant seeks an evidentiary hearing on an ineffective assistance of counsel claim, the trial court may deny the motion without an evidentiary hearing if the claim is conclusory in nature, or if the record conclusively shows the appellant is not entitled to relief). This opinion will not be published.

2011AP1963 State v. McCredie

Dist II, Manitowoc County, Fox, J., Per Curiam

Attorneys: For Appellant: McCredie, Kelly J., pro se; For Respondent: Balistreri, Thomas J., Madison; Rohrer, Mark R., Manitowoc

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