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COURT OF APPEALS
DECISION
                                                                                            DATED AND RELEASED
                                                                                                                                                   NOTICE
                                                                                            November 6, 1997
                                                                                            A  party  may  file  with  the  Supreme  Court  a      This opinion is subject to further editing. If
                                                                                            petition  to  review  an  adverse  decision  by  the   published, the official version will appear in
                                                                                            Court of Appeals.   See § 808.10 and RULE 809.62,      the bound volume of the Official Reports.
STATS.
No.                                                                                         96-0825-CR
STATE OF WISCONSIN                                                                          IN COURT OF APPEALS
                                                                                            DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
ERIC L. HANSEN,
DEFENDANT-APPELLANT.
APPEAL  from a judgment and an order  of  the circuit court for
Jackson County:   ROBERT W. RADCLIFFE, Judge.   Affirmed.
Before Eich, C.J., Dykman, P.J., and Deininger, J.
PER CURIAM.    Eric L. Hansen appeals a judgment of conviction
for  armed  burglaries  and  a  related  offense,  and  the  denial  of  his  motion  for
postconviction relief.   The issue is whether Hansen received ineffective assistance
of counsel due to counsel’s failure to move to suppress Hansen’s confession.   We
conclude that Hansen failed to demonstrate:                                                 (1) the legal merit of a suppression




NO. 96-0825-CR
motion; and thus,  (2) the resulting prejudice for failing to pursue suppression.
Therefore, we affirm.
Hansen and a friend were apprehended for a multitude of armed
burglaries, thefts and related offenses.   When Hansen was arrested, unbeknownst
to him, his father drove to the jail but was denied permission to see him or to leave
him a note.   While in custody, Hansen confessed.   Hansen admitted that he had
been informed of and understood that he had a right to counsel.   Hansen did not
ask to see his parents, and he did not know that his father had attempted to see
him.   Hansen admitted that he confessed to these crimes because:                                     (1) his cohort
had already confessed; and (2) he “wanted it over as quick as possible so I told
them everything.”1
By postconviction motion, Hansen moved to withdraw his guilty
pleas because his counsel was allegedly ineffective for failing to move to suppress
his confession.   After a Machner hearing, the trial court denied his postconviction
motion.   See State v. Machner, 92 Wis.2d 797, 804, 285 N.W.2d 905, 908-09 (Ct.
App. 1979).  Hansen appeals.
To establish an ineffective assistance claim, a defendant must show
that: (1) counsel’s performance was deficient; and (2) that deficient performance
prejudiced the defense.   See Strickland v. Washington, 466 U.S. 668, 687 (1984).
Hansen must be able to demonstrate, among other things, that had counsel moved
1  Pursuant to a plea agreement, Hansen pled guilty to two counts of armed burglary,
contrary to § 943.10(2)(a), STATS., and to taking and operating a motor vehicle without the owner’s
consent, contrary to § 943.23(2), STATS.   The trial court imposed ten and five-year consecutive
sentences on one of the burglary counts and the operating without consent count, and withheld
sentence and imposed a fifteen-year consecutive term of probation on the remaining burglary count.
2




NO. 96-0825-CR
to suppress his confession, it was reasonably probable that the trial court would
have done so.   See id. at 694.   After the Machner hearing, the trial court concluded
precisely the opposite—that there was not “a sufficient basis ... to now suppress
those statements ... [or to have done so] if that had been raised by counsel ... prior
to the plea.”   We agree.
At the Machner hearing, trial counsel testified that he had discussed
the confession with Hansen, and that Hansen never claimed that he was coerced
into talking to the police.   Trial counsel said that he did not move to suppress
Hansen’s confession because he did not believe that such a motion, in the context
of these facts, had merit.   Hansen testified that he sought postconviction relief
because:                                                                                      (1) he was angry that he was not allowed to use the telephone;2 and
(2) he sought a reduced sentence.
Hansen’s father testified that he thought about calling a lawyer, and
went to the jail to ask his son if he wanted a lawyer, but “they wouldn’t let me ask
him.”   When Hansen’s father was denied admittance to the jail, he did not follow
through and obtain a lawyer for his son.   In fact, Hansen’s father testified that,
when he finally was allowed to see his son, he refused assistance from his father
because “[he] got [him]self into this ... [and he]’ll get [him]self out of it.”
We review the denial of an ineffective assistance claim as a mixed
question of fact and law.   See Strickland, 466 U.S. at 698.   We will not reverse the
trial court’s factual findings unless they are clearly erroneous, but, we review the
two-pronged determination of trial counsel’s performance as a question of law.
2  Hansen did not claim that he wanted to use the telephone to contact a lawyer, nor did he
invoke his right to counsel.
3




NO. 96-0825-CR
See State v. Johnson,  153 Wis.2d  121,  127-28,  449 N.W.2d  845,  848  (1990).
Because both deficient performance and resulting prejudice must be shown, we
need  not  analyze  whether  trial  counsel’s  performance  was  deficient,  if  the
defendant has not met his affirmative burden of proving the resulting prejudice.
See id. at 128-29, 449 N.W.2d at 848.
We  agree  with  the  trial  court  that  Hansen  offers  nothing  to
substantiate his ineffective assistance claim.   First, when Hansen confessed he was
unaware that his father had been denied admittance to see him.3   Second, Hansen
did not ask his father to obtain counsel for him, in fact Hansen told his father that
“he could handle it all right [himself].”   Third, the constitutional rights to counsel
and to remain silent are personal to the defendant.    See State v. Hanson,  136
Wis.2d 195, 213, 401 N.W.2d 771, 778 (1987).   These rights cannot be invoked by
defendant’s family, friends, or counsel; they are personal rights and cannot be
exercised by anyone other than the defendant.   See id.
We conclude that Hansen has failed to demonstrate that his trial
counsel’s failure to move for suppression of his confession was prejudicial.   Even
if it is true that his father would have obtained counsel for Hansen had his father
not been denied admittance to the jail, this contention is legally insufficient under
Hanson.   Consequently, Hansen has not shown that it was reasonably probable
that the trial court would have suppressed his confession.
3 "Facts about which the defendant has no knowledge can hardly exert any degree of
coercion on him."  State v. Hanson, 136 Wis.2d 195, 215, 401 N.W.2d 771, 779 (1987).
4




NO. 96-0825-CR
By the Court.—Judgment and order affirmed.
This opinion will not be published.  See RULE 809.23(1)(b)5, STATS.
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