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COURT OF APPEALS
DECISION
DATED AND RELEASED
                                                                                       NOTICE
April 29, 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.   96-0521-CR
STATE OF WISCONSIN                                                                     IN COURT OF APPEALS
                                                                                       DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
LEONARD MCDOWELL,
DEFENDANT-APPELLANT.
APPEAL  from  a  judgment  and  orders  of  the  circuit  court  for
Milwaukee County:   JEFFREY A. WAGNER, Judge.   Affirmed.
Before Fine, Schudson and Curley, JJ.
PER CURIAM.    Leonard McDowell appeals from a judgment of
conviction for first-degree intentional homicide while armed.    He also appeals
from  two  orders  denying  his  motions  for  postconviction  relief.    He  raises
essentially two issues for review:                                                     (1) whether the trial court erred in denying his
postconviction  motion  premised on  an ineffective  assistance  of  counsel claim




NO. 96-0521-CR
without holding an evidentiary hearing; and (2) whether the trial court erroneously
exercised its discretion when it denied his postconviction motion for a hearing to
contest the findings of doctors on his competency to assist his counsel during his
postconviction proceedings.   We reject his arguments on these issues and affirm.
I. BACKGROUND.
McDowell was charged with first-degree intentional homicide while
armed arising out of the shooting of a local high school vice-principal.   McDowell
pleaded not guilty and not guilty by reason of mental disease or defect.    He
received a bifurcated jury trial.   The jury found him guilty in the first phase of the
trial,  and  then  found  him  responsible  in  the  second  phase.    The  trial  court
sentenced McDowell to life imprisonment.
McDowell  filed  postconviction  motions  alleging,  among  other
things, that he received ineffective assistance of trial counsel because of his trial
counsel’s failure to continue to challenge his competency to stand trial for the
homicide.    The  trial  court  denied  the  motion  without  an  evidentiary hearing,
concluding  that  McDowell’s  motion  contained  only  conclusory  allegations
concerning his counsel’s representation and that it had not satisfied the prejudice
prong in the Strickland v. Washington, 466 U.S. 668 (1984), test for ineffective
assistance  of  counsel  claims.    McDowell  then  filed  a  motion  with  this  court
seeking  an  order  requiring  the  trial  court  to  make  a  competency  evaluation
pursuant to State v. Debra A. E., 188 Wis.2d 111, 523 N.W.2d 727 (1994).   We
granted this motion and ordered the trial court to make a competency evaluation.
See  State  v.  McDowell,  No. XX-5949-CR,  unpublished  order  (Wis.  Ct.  App.
Oct. 6,  1995).   The trial court appointed three doctors to evaluate McDowell’s
competency to assist his counsel in the postconviction matters.   The three court-
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NO. 96-0521-CR
appointed  doctors  found  that  McDowell  was  competent  to  proceed.    Another
doctor who evaluated McDowell, however, concluded that he was not competent.
The  trial  court  then  declined  McDowell’s  request  to  hold  a
competency hearing and, based on the evaluations of the doctors, concluded that
McDowell was competent to proceed in his postconviction proceedings.   The trial
court denied McDowell’s postconviction motion and McDowell commenced this
appeal.   Further facts relevant to McDowell’s arguments are discussed with each
issue.
II.  ANALYSIS.
A.  Ineffective Assistance of Counsel Claim.
McDowell argues that he received ineffective assistance of counsel
and that the trial court erroneously exercised its discretion when it rejected his
claim without holding an evidentiary hearing.   We disagree.
McDowell argues that his counsel was ineffective for failing  “to
make a record of her concerns about his competency contemporaneous with and
during the actual trial.”   Although he acknowledges that the trial court previously
raised  the  issue  of  his  competency  before  trial,  and  ruled  twice  that  he  was
competent, he argues that his counsel’s failure to continue to express her concerns
about his competency and challenge the findings of competency denied him his
right to effective assistance of counsel.
The standard for reviewing this issue was recently stated in State v.
Bentley, 201 Wis.2d 303, 548 N.W.2d 50 (1996):
If the motion on its face alleges facts which would entitle
the defendant to relief, the circuit court has no discretion
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NO. 96-0521-CR
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.
Id. at 310-11, 548 N.W.2d at 53 (citations omitted).   Further, “‘if the defendant
fails to allege sufficient facts in his motion to raise a question of fact, or presents
only conclusory allegations, or if the record conclusively demonstrates that the
defendant is not entitled to relief, the trial court may in the exercise of its legal
discretion deny the motion without a hearing.’”   Id. at 309-10, 548 N.W.2d at 53
(citation omitted).
For a defendant to succeed in an ineffective assistance of counsel
claim, the two-pronged test set forth in Strickland must be satisfied.   A defendant
“must  show  that  counsel’s  performance  was  both  deficient  and  prejudicial.”
Bentley, 201 Wis.2d at 312, 548 N.W.2d at 54.   Further, if a defendant fails to
show the prejudice prong, this court need not address the deficient performance
prong.  See State v. Sanchez, 201 Wis.2d 219, 236, 538 N.W.2d 69, 76 (1996).
“In order to show prejudice, ‘[t]he defendant must show that 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.  (citation
omitted).
The trial court determined that McDowell had not made a sufficient
showing to require an evidentiary hearing.   The court concluded that McDowell’s
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NO. 96-0521-CR
assertions in his postconviction motion and attached affidavit were conclusory
allegations that did not meet the necessary showing of prejudice under Strickland.
McDowell’s  trial  counsel  filed  an  affidavit  with  McDowell’s
postconviction motion, making the following allegations:
“I raised my concerns that the defendant was incompetent
before the trial court in the pretrial stages of the case.   A
number of hearings were held where a number of doctors
testified  that  they  believed  that  the  defendant  was  not
competent.”
“The trial court rejected the contentions of those doctors
who found that my client was not competent to proceed.
The trial court adopted the findings of doctors who opined
that my client was competent to proceed.”
“Throughout  the  entire  proceedings,  including  both  the
guilt phase and the NGI phase of the trial, I believed that
my client was not competent to proceed, despite the ruling
of the trial court and findings of doctors to the contrary.   It
is my opinion that he was unable to consult with counsel
effectively and rationally, assist in the preparation of his
defense, and understand the proceedings against him.”
“Subsequent  to  the  court’s  pretrial  ruling  finding  the
defendant competent, I did not raise the issue during the
trial because I felt that to do so would be futile because the
court had already ruled on the issue.”
The State argues that even with these allegations by McDowell’s
trial  counsel,  McDowell’s  postconviction  moving  papers  were  insufficient  to
require an evidentiary hearing because they “did not set forth facts which if true,
would entitle the defendant to relief.”   We agree with the State.
Nothing in McDowell’s motion or affidavit shows that his counsel’s
alleged  deficiencies  created  a  reasonable  probability  that  the  result  of  his
bifurcated trial would have been different.    The trial court had ruled twice on
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NO. 96-0521-CR
McDowell’s competency and had sought the advice of  mental health experts.
Further, nothing in trial counsel’s affidavit points to any additional evidence other
than her own conclusory allegations that McDowell was not competent to proceed.
Moreover,  her  allegations  in  the  affidavit  do  not  claim  that  her  opinion  on
McDowell’s  competency  was  premised  on  any  significant  or  dispositive
information that had not been available to the doctors who evaluated him.    In
short, the trial court could deny McDowell’s ineffective assistance of counsel
claim without a hearing because it was clear from the materials presented in the
postconviction motion that he was not entitled to the relief he sought—that is, he
was not entitled to a new trial.
B.  Postconviction competency hearing.
McDowell next argues that the trial court erred in denying him a
hearing on his postconviction competency hearing.    We conclude that the trial
court properly exercised its discretion in rejecting McDowell’s call for such a
hearing.
After sentencing, if the State or defense counsel “has a good faith
doubt about a defendant’s competency to seek postconviction relief,” that party
should move for a ruling on competency.   Debra A. E., 188 Wis.2d at 131, 523
N.W.2d at  734.                                                                           “If the court determines that a reason to doubt a defendant’s
competency exists, it shall, as an exercise of its discretion, determine the method
for evaluating a defendant’s competency, considering the facts before it and the
goals of a competency ruling.”   Id. at 131-32, 523 N.W.2d at 734.
“A court may rely on the affidavits of counsel, a stipulation or the
court’s observance of the defendant, or may order an examination of the defendant
by  a  person  with  specialized  knowledge.    A  circuit  court  may  also,  in  its
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NO. 96-0521-CR
discretion, hold a hearing before determining a defendant’s competency.”   Id. at
132, 523 N.W.2d at 734.
We will only reverse a trial court’s discretionary ruling if the trial
court erroneously exercises its discretion.   See State v. Evans, 187 Wis.2d 66, 77,
522  N.W.2d  554,  557  (Ct. App.  1994).                                              “A trial court properly exercises its
discretion if its determination is made according to accepted legal standards and if
it is in accordance with the facts on record.”   Id.
Here, the trial court sought the evaluation of three court-appointed
doctors.   All three concluded that McDowell was competent.   The trial court could
properly base its competency determination on the basis of these evaluations.   The
court did not have to hold an evidentiary hearing.  Debra A. E., 188 Wis.2d at 132,
523 N.W.2d at 734.   Further, contrary to McDowell’s contentions, the mandates of
§ 971.14, STATS., do not apply when a defendant’s competency is questioned after
sentencing.   Id. at                                                                   128-29 n.14, 523 N.W.2d at 733 n.14.   In sum, the trial court
properly exercised its discretion when it concluded that McDowell was competent
to assist in his postconviction proceedings.
Based  upon  the  foregoing  reasons,  we  affirm  the  judgment  of
conviction and the orders denying McDowell’s postconviction motions.
By the Court.—Judgment and orders affirmed.
This opinion will not be published.  See RULE 809.23(1)(b)5, STATS.
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