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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED
This  opinion  is  subject  to  further  editing.  If
published, the official version will appear in the
bound volume of the Official Reports.
December 22, 1999
                                                                                                                                                     A  party  may  file  with  the  Supreme  Court  a
                                                                                                                                                     petition  to  review  an  adverse  decision  by  the
                                                                                     Marilyn L. Graves
                                                                                                                                                     Court of Appeals.   See § 808.10 and RULE 809.62,
                                                                                     Clerk, Court of Appeals
                                                                                                                                                     STATS.
                                                                                     of Wisconsin
No.                                                                                  98-3612
                                                                                     STATE OF WISCONSIN
                                                                                                                                                     IN COURT OF APPEALS
                                                                                                                                                     DISTRICT II
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
THOMAS J. O.,
DEFENDANT-APPELLANT.
APPEAL from an order of the circuit court for Kenosha County:
MICHAEL FISHER, Judge.  Affirmed.
Before Brown, P.J., Nettesheim and Snyder, JJ.
¶1                                                                                   PER CURIAM.    Thomas J. O. appeals from an order denying his
motion for postconviction relief.   Thomas pled no contest to third-degree sexual
assault and false imprisonment for sexually assaulting his wife.   He now seeks to
withdraw his plea alleging that the plea was involuntary and that he received




No. 98-3612
ineffective assistance of counsel.    Because we conclude that the plea was not
coerced and counsel was not ineffective, we affirm.
¶2                                                                                        In  1993, Thomas was charged with two counts of second-degree
sexual assault.   The charges were brought as a result of a statement his wife, M.O.,
made to the police the day after the second incident took place.
¶3                                                                                        At the preliminary hearing, the first witness the State called was
M.O.     Her  testimony  on  the  first  day  of  the  preliminary  hearing  differed
substantially from the statement she had given to the police.   When it became clear
that her testimony was substantially different from the previous testimony, the
State attempted to treat her as a hostile witness.   The court stated that if the State
was going to impeach her with her prior testimony, she needed to be advised of
her right to an attorney.   The court stated to her:
What I am going to do is advise you of some things based
upon what you have heard so far today.   It’s possible, if the
District  Attorney  believes  that  you  have  given  false
information either on the witness stand or when you gave
information to the police about what might have occurred
on these previous incidences, if you lied on the witness
stand, that’s called perjury; and it is a felony for which you
could be placed in prison.   If you lied to the police, that’s
called obstructing or could be called obstructing; and the
District  Attorney  could  charge  you  for  giving  false
information to the police.
I think, based upon the sensitive nature of the charges
alleged against Mr. [O.] and the position that you are in,
that you have a right to have counsel assist you in this
matter, especially given the fact that the District Attorney is
making a request that I allow him to treat you as a hostile
witness.
¶4                                                                                        Two more days of testimony were taken.   On the second day of the
hearing, M.O. again changed her story.   Eventually, after advice from her own
counsel, she refused to answer the district attorney’s questions on the grounds that
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No. 98-3612
it might incriminate her.   She then, however, answered questions from the defense
attorney.   After she finished testifying, her counsel asked the court to be allowed
to withdraw because he was faced with an “ethical dilemma.”   The court refused.
¶5                                                                                             By  the  third  day  of  the  hearing,  M.O.,  represented  by  another
attorney, refused to testify at all.    Testimony was taken from other witnesses.
Thomas was bound over for trial.   After this, Thomas and the State conducted plea
negotiations.   As a result of these negotiations, Thomas pled no contest to one
count of third-degree sexual assault and to false imprisonment.   As a result of
these negotiations, his potential sentence  exposure  was reduced  from forty to
seven years.   In addition, the State agreed to recommend probation and agreed not
to prosecute M.O.   Thomas was sentenced to a total of five years, which sentence
was stayed and Thomas was placed on probation for four years.
¶6                                                                                             Thomas now seeks to withdraw his plea on the grounds that it was
coerced and that he received ineffective assistance of counsel because his attorney
counseled him to accept the plea agreement.   He alleges that the plea was coerced
because  the  State  had  threatened  to  prosecute  his  wife  for  perjury  and/or
obstruction of justice if he did not accept the plea.   The trial court denied his
motion for postconviction relief, finding that during the plea colloquy Thomas had
stated that he was not being coerced.
¶7                                                                                             Thomas has not provided this court with a copy of the transcript of
his plea hearing.   In the absence of the transcript, we must assume that the missing
material supports the trial court’s ruling.                                                    “Appellate review is limited to the
record before the appellate court, and we will assume in the absence of a transcript
that  every  fact  essential  to  sustain  the  trial  judge’s  exercise  of  discretion  is
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No. 98-3612
supported by the record.”    Dunhame v. Dunhame,  154 Wis.2d  258,  269,  453
N.W.2d 149, 153 (Ct. App. 1989).
¶8                                                                                       Further, the record does not support Thomas’s claim that his plea
was coerced.   Thomas states that the State threatened M.O. with prosecution.   As
discussed above, however, the record establishes that it was the court which first
suggested to M.O. that she might be faced with a charge of perjury or obstruction
of justice given the variations in the different versions of her descriptions of the
incidents.
¶9                                                                                       Moreover, the threat, if there was one, was not unfounded.   M.O.’s
testimony at the hearing differed from day to day and from the story she had
initially given to the police.   Whether her recantation was true or false, by giving
such widely differing versions of the events, she could have been charged with
either obstructing justice or perjury.   Based on this record, we cannot conclude
that Thomas’s plea was coerced.
¶10    Thomas also contends that he has newly discovered evidence in the
form of evidence of M.O.’s prior false allegation against a boyfriend.   Thomas,
however, never argued to the trial court that the alleged prior allegation constituted
newly discovered evidence.   Because he did not raise the argument before the trial
court, he cannot now argue it on appeal.   See Wirth v. Ehly, 93 Wis.2d 433, 443-
44, 287 N.W.2d 140, 145 (1980) (no issue or claimed error of the trial court may
be reviewed on appeal unless it was raised first before the trial court).
¶11    Thomas  next  contends  that  his  trial  counsel  was  ineffective  for
failing to investigate the prior false allegations and for allowing him to accept the
plea negotiations in light of the threats he alleges were made to prosecute M.O.
To establish an ineffective assistance of counsel claim, a defendant must show
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No. 98-3612
both that counsel’s performance was deficient and that he or she was prejudiced
by the deficient performance.   See   Strickland v. Washington, 466 U.S. 668, 687
(1984).   A reviewing court may dispose of a claim of ineffective assistance of
counsel  on  either  ground.    Consequently,  if  counsel’s  performance  was  not
deficient, the claim fails and this court need not examine the prejudice prong.   See
State v. Moats, 156 Wis.2d 74, 101, 457 N.W.2d 299, 311 (1990).
¶12    First, Thomas has failed to establish that he, in fact, has evidence of
a prior false accusation.   There is simply nothing in the record which supports this
statement.1   In the absence of any evidence to support his assertion that there was
something to investigate, we cannot conclude that counsel was ineffective for
failing to investigate.
¶13    Thomas also contends that his counsel was ineffective for allowing
him to accept the plea when the plea was coerced.   However, as discussed above,
based on the record before us, we conclude that the plea was not coerced.   Because
there  was  no  defect  in  the  plea  proceeding,  counsel  was  not  ineffective  for
allowing Thomas to accept the plea.
¶14    Finally, Thomas asks us to exercise our discretion to reverse his
conviction in the interest of justice.   This we decline to do.   The order denying
Thomas’s motion for postconviction relief is affirmed.
1  Thomas has included in his brief a letter which he asserts supports his contention.   We
will not consider it, however, because it was not part of the record before the trial court.   See
State v. Aderhold, 91 Wis.2d 306, 314, 284 N.W.2d 108, 112 (Ct. App. 1979).
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No. 98-3612
By the Court.—Order affirmed.
This opinion will not be published.  See RULE 809.23(1)(b)5, STATS.
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