The Probationer, the Computer Equipment and the Search

This post examines a recent opinion from the Court of Appeals of Wisconsin: State v. Keller, 2017 WL 536058 (2016). The court begins by explaining how the case arose and what issues were involved in the appeal:

Keller was on probation in July 2013 for an arson conviction. Given Keller's earlier conviction for possession of child pornography, one of his rules of probation was that `[y]ou shall not purchase, possess, nor use a computer, software, hardware, nor modem without prior agent approval.’ The rules also precluded Keller from committing an illegal act. On July 25, 2013, Keller's probation agent made a scheduled visit to Keller's Farmington, Wisconsin, home and observed a locked room off the kitchen. Keller told the agent the room was his wife's office where she kept her computer equipment. Keller opened the locked door, and the agent observed computer equipment. At an August 8, 2013 office visit, Keller advised the agent that his Farmington home was going to be listed for sale and that his wife and children were already living in Kewaskum. Keller could not live with his family in Kewaskum due to his sex offender status.

On August 13, 2013, Keller missed a scheduled appointment with his agent. On August 20, 2013, Keller's wife told the agent that she had all of her computer equipment in Kewaskum. The agent made an unscheduled visit to Keller's Farmington home the same day and observed two modems with blinking lights, computers, a tower, a laptop, and a large screen on a wall. Keller told the agent that he did not think the computers worked but that he did use the laptop the previous day. Computer equipment was also discovered in the basement. The agent seized the computers and Keller was placed in custody for violating his rules of probation, namely having a computer without approval.

The agent took the seized computer equipment to her office and secured it. Neither the agent, nor anyone in her office, had the requisite knowledge to search Keller's computer equipment. The agent contacted DCI for assistance and arrangements were made for a DCI forensic analyst to assist the agent in examining the contents of the computer equipment.

The agent took the computer equipment to the DCI analyst on September 5, 2013, and instructed the analyst that she would be present throughout the search and that she would order the search stopped if any illegal image was observed. When the analyst discovered an image that appeared to be child pornography, the agent ordered the analyst to cease the search and returned to her office with all of Keller's computer equipment.

The agent referred the matter to the Washington County Sheriff's Department who obtained a search warrant for Keller's computer equipment, which led to the discovery of images of child pornography. Keller moved to suppress all evidence obtained, arguing the search by the DCI analyst was illegal. The circuit court found the search to be a police search and suppressed all evidence obtained from Keller's computer equipment. The circuit court was not concerned with the seizure of Keller's computer equipment as the court found the computer equipment was clearly contraband, but the court was troubled by the use of the DCI analyst and the lack of direction to the analyst as to the scope of the search. The court also commented that the agent made no attempt to search the computers on her own. The state appeals.

State v. Keller, supra.

The Court of Appeals prefaced its analysis of the legal issues in this case with an explanation of the “standard of review” it would apply to what happened here:

 `Whether a search is a police or a probation search is a question of constitutional fact which “requires a conclusion based on an analysis of all the facts surrounding the search”’ State v. Devries, 2012 WI App 119, ¶3, 344 Wis. 2d 726, 824 N.W.2d 913 (quoting State v. Hajicek, 2001 WI 3, ¶23, 240 Wis. 2d 349, 620 N.W.2d 781). A circuit court's findings of historical fact are examined under the clearly erroneous standard while the court's finding of constitutionality is reviewed de novo. Hajicek, 240 Wis. 2d 349, ¶15. A probation search is reasonable if a probation officer has `reasonable grounds’ to believe that a probationer has contraband. Id., ¶3. A search done by a police officer at the request and behalf of a probation agent is not per se a police search. Devries, 344 Wis. 2d 726, ¶7.

State v. Keller, supra.

The court then began its analysis, explaining that the

issue in this case runs parallel to those in State v. Purtell, 2014 WI 101, 358 Wis. 2d 212, 851 N.W.2d 417, and Devries. In Purtell, the issue was whether the warrantless search of the contents of a computer lawfully seized by a probation agent violated the Fourth Amendment. Purtell, 358 Wis. 2d 212, ¶33. In Devries, the issue was whether the involvement of police in a probationary search violates the Fourth Amendment. Devries, 344 Wis. 2d 726, ¶¶4-5. The facts before us involve both concepts: a law enforcement analyst assisting a probation agent in the warrantless search of the contents of a computer lawfully seized by a probation agent.

State v. Keller, supra (emphasis in the original).

The Court of Appeals went on to explain that

[t]here is no dispute that Keller's computers were contraband and were lawfully seized without a warrant. The court stated that while the agent had valid suspicions that child pornography was on Keller's computer, the agent was on a `fishing expedition’:

`I am not aware of any case anywhere in the entire United States where this fact scenario has occurred where an agent has basically made no attempt to search the computer herself, and has said, let's call up the criminal investigative unit and have their people do a forensic examination of a computer specifically looking for child porn, when that specific type of analysis is not directly relevant to the issue of whether the computer is being used or not. That's the rule violation: did he use it or didn't he. Of course he admitted he used it.’

We disagree with the circuit court's premise that the only relevant issue was whether Keller `used’ a computer. Given the nature of probation, a probation agent has a duty to determine whether a probationer is complying with the terms of his probation. See State v. Griffin, 131 Wis. 2d 41, 55, 388 N.W.2d 535 (1986). Probation, by its very nature, `places limitations on the liberty and privacy rights of probationers,’ and these limitations provide an exception to the warrant requirement for searches of a probationer's home and property by a probation agent. Id. at 45-46. What is an unreasonable search for a probationer differs from what is unreasonable for a law-abiding citizen. Purtell, 358 Wis. 2d 212, ¶22. If a probation agent has `reasonable grounds’ to believe that a probationer has contraband, the agent may conduct a warrantless search. Id., ¶26. Contraband is any item whose possession is forbidden by law. Id., ¶51.

In Purtell, Purtell pled guilty to two felony counts of mistreating animals in 2006 and was placed on probation. Id., ¶¶4-5. Given that police had discovered sexually inappropriate images on Purtell's computer during their investigation, Purtell had a probation rule that he `not purchase, possess, nor use a computer, software, hardware, nor a modem without prior agent approval.’ Id., ¶¶4, 6. Purtell's probation agent was informed in April 2007 that Purtell had possession of computers. Id., ¶¶11-12. The agent performed a warrantless search of Purtell's home, resulting in the seizure of computer equipment. Id.

State v. Keller, supra.

The opinion goes on to explain that the

agent brought Purtell's computer back to her office and searched it without a warrant. Id., ¶14. The agent observed images of underage females engaged in sexual activity. Id. The agent notified law enforcement who obtained search warrants that resulted in eight criminal charges of possession of child pornography. Id. Purtell moved to suppress the evidence seized from his computers, arguing that while there were `reasonable grounds’ to seize his computer as it was “contraband,” the agent's warrantless search of the contents of his computer constituted an independent governmental search that violated his Fourth Amendment privacy interests. Id., ¶¶15, 27.

Our supreme court concluded that the search of the contents of Purtell's computer was permissible as the agent had reasonable grounds to believe the computers contained contraband. Id., ¶20. The court concluded that `it is difficult to imagine a scenario where a probation agent would lack reasonable grounds to search an item the probationer is explicitly prohibited from possessing.’ Id., ¶28. A critical fact was that the computer itself was contraband. `[W]hen a condition of probation prohibits the possession of a certain item, and the subject of the search knowingly breaks that condition, in most situations a probation agent would presumably have reasonable grounds to search the contents of the item.’ Id., ¶30. The court found that Purtell's agent was justified in ascertaining the `extent’ of Purtell's probation violation by ascertaining whether Purtell had not only possessed the computer, but also used the computer, and if so, the degree of his use. Id., ¶32

State v. Keller, supra.

The Court of Appeals went on to explain that

Purtell tells us that as long as there are `reasonable grounds’ to believe a probationer has contraband, a probation agent will almost always have the right to search the contraband itself without a warrant. The special need for ensuring that probationers are rehabilitated and that the public is protected creates an exception to the warrant or probable cause requirement for reasonable searches. Hajicek, 240 Wis. 2d 349, ¶36. While ordinary citizens have a legitimate expectation of privacy in the contents of their electronic devices, that expectation is `undercut’ when the electronic device is contraband. Purtell, 358 Wis. 2d 212, ¶28; see also United States v. Skinner, 690 F.3d 772, 785 (U.S. Court of Appeals for the 6th Circuit 2012) (noting that `courts have declined to recognize a “legitimate” expectation of privacy in contraband and other items the possession of which are themselves illegal, such as drugs and stolen property’).

When a condition of probation prohibits the possession of an item, and the probationer knowingly breaks that condition, `in most situations’ a probation agent would `presumably’ have “reasonable grounds” to search the contents of the item. Purtell, 358 Wis. 2d 212, ¶30. Moreover, given Keller's possession and admitted use of a computer at the house in violation of the probationary rules, his prior conviction for possession of child pornography provided reasonable grounds to search the contents for further illegal use of the computer in violation of the rules.

State v. Keller, supra.

The court goes on to explain that in

Devries, we addressed whether a probation agent who requested police assistance in performing a search transformed the probationary search into an illegal police search. Devries, 344 Wis. 2d 726, ¶4. The facts of Devries are straightforward. Devries met with her probation agent who detected an odor of intoxicants emanating from Devries. Id., ¶2. The agent requested a law enforcement officer to administer a preliminary breath test (PBT) to Devries. Id. A police officer performed a PBT, which revealed a blood alcohol concentration (BAC) of .128. Id. The agent placed Devries in custody and told the police officer that Devries had driven to her office. Id. The officer performed further investigation which resulted in Devries' arrest for sixth offense operating a motor vehicle while intoxicated. Id. Devries brought a motion to suppress on the grounds that a police search occurred and therefore the PBT and all evidence flowing from it should be suppressed. Id., ¶1. The circuit court denied the motion. Id.

State v. Keller, supra.

The court then explained that

[w]e affirmed as Devries' probation agent initiated the search and the police officer's only purpose for his initial involvement was to assist the agent in conducting the probation investigation. Id., ¶5. We found, based upon the historical facts in the record, that the PBT was administered for no independent police purpose but instead was a limited search executed at the request and on behalf of the probation agent for probation purposes. Id., ¶7.

State v. Keller, supra.

The Court of Appeals then articulated its holding in this case, i.e., its decision:

Applying Purtell and Devries to our facts leads us to conclude that the search of Keller's computer was a probationary search. As noted in Purtell, an agent has the authority to examine not only whether a probationer has contraband but also has the right to determine the “extent” of the violation. Purtell, 358 Wis. 2d 212, ¶32. Keller's probation agent lawfully seized contraband from Keller but did not have the ability to examine the contents of the contraband. The agent requested the assistance of an analyst at DCI, independent from any law enforcement investigation, so as to examine the contents of Keller's computer. Just as the agent in Devries did not have the ability to administer the test to determine Devries' BAC, the agent here did not have the ability to forensically examine the extent of Keller's use of the computer. Based upon the rationale set forth in Purtell and Devries, we respectfully disagree with the circuit court's conclusion that the search was a police search.

Conclusion

Given the historical facts, we conclude that a warrant was not required for the probation agent to search the contents of Keller's computer utilizing the assistance of an analyst from DCI. The order suppressing the evidence is reversed.

State v. Keller, supra.

Stalking, the State Trooper and Ineffectiveness of Counsel

This post examines a recent opinion from the Court of Appeals of Wisconsin:  State v. Grover, 2017 WL 663207 (2017).  The court begins the opinion by explaining that

Vickie M. Grover was convicted of stalking S.W., a Wisconsin State Patrol trooper. On appeal, Grover challenges the sufficiency of the evidence and the effectiveness of trial counsel. She also asks this court to order a new trial in the interest of justice. 

State v. Grover, supra.

It goes on to explain that

S.W. first met Grover when she approached him at a gas station and asked him a question about her damaged windshield. S.W. worked the overnight shift, and he generally began his shift by getting gasoline for his squad car at a Sun Prairie gas station. Grover drove a white Nissan Cube, a `distinct’ vehicle. S.W. testified that after that initial encounter, he started noticing Grover's car frequently, with Grover following him to whatever gas station he happened to visit. Grover would engage him in `one-sided’ conversation `[a]lmost every night.’

S.W. testified that he became `concerned’ about seeing Grover so often and he `started changing [his] patterns’ regarding where he got gas and the route he would take to the interstate. S.W. began noticing Grover's car driving past the DeForest State Patrol headquarters. Grover would pass him on the interstate and wave. These encounters took place between the start of S.W.'s shift until 3:00 to 4:00 a.m. S.W. testified that, on several occasions, Grover followed his squad into Columbia County. At some point, S.W. ran Grover's license plate and learned her name.

State v. Grover, supra.

The opinion goes on to explain that

S.W. often parked his squad in front of his Sun Prairie house when not working. He testified that one night, in January 2011, he went out to the squad at the start of his shift when Grover drove up and stopped in front of his driveway. S.W. described the incident as follows:

`After a second or two I was kind of like sitting there in shock a little bit, like this can't be happening. She exited the vehicle. I still was in my vehicle. I opened the driver's side door and she walked to the driver's side door of my vehicle.’

State v. Grover, supra.

The opinion then provides more details of this encounter:

When asked how he felt, S.W. testified:

`I felt violated. I had a rush of emotions going through me. I had my wife inside who was pregnant, about to have a baby. I'd never had this happen before so I was—I was a little concerned to say the least.’

. . . .

. . . `I guess I felt threatened. I had no idea what her intentions were.’

S.W. testified that he was `pretty sure’ he spoke first, asking Grover, `what the hell she was doing’ at his house. S.W. was `upset’ and `probably more authoritative’ than in prior encounters. Grover told S.W. that she wanted to give him some gifts—a University of Wisconsin Rose Bowl hat and some pens and paper from her employer. Grover was dressed in Wisconsin clothes and colors, looking like she had just come from a football game. S.W. told Grover he could not accept the items, that he was married, and that this was `inappropriate.’

State v. Grover, supra.

The court then goes on to explain that S.W.

testified that he thought that Grover learned where he lived by following him when he returned to his house. S.W. testified that at the end of the incident, he was `emotionally drained’ and `couldn't believe it had happened.’ S.W. `felt threatened, . . . an unwanted person [was] coming to my house.’ S.W. testified he was `mentally and physically and emotionally drained’ after the incident and his `anxiety was through the roof.’

State v. Grover, supra.

The opinion then explains that

[a]fter that incident, S.W. spoke with a sergeant, his wife, and ultimately, the Sun Prairie police department. The discussion with a police officer led to the issuance of a `no stalking’ letter from the police to Grover. Officer Raymond Thompson testified that he served Grover with the letter on March 29, 2011, and read and explained the letter to her. The letter advised Grover that her behavior towards S.W. could be interpreted as stalking, as defined by Wisconsin Statutes §940.32 (2015-16). The letter further advised Grover that “future stalking behavior” towards S.W. `could result in [her] arrest.’ Thompson testified that Grover agreed to not have any further contact with S.W.

S.W. testified that after the letter was served, he continued to see Grover in the Sun Prairie area, including in his neighborhood. In April, while S.W. was on duty, he was buying lunch at a grocery store. Grover approached him and started talking to him. Grover told S.W. she was sorry, that she `wasn't trying to pick [him] up,’ and that she followed him because she felt safe around him. S.W. told Grover that her conduct was inappropriate and she should not be talking to him.

After that incident, S.W. continued to see Grover but did not have any direct contact with her until August 2012. S.W. testified that on August 9, 2012, a package was found in his home mailbox. The package had no return address, several stamps, but no postmark. S.W. and his wife discussed whether to open the package. S.W.'s wife was `very concerned and upset with [S.W.],’ questioning him about whether he had a girlfriend. Eventually, they surmised that the package might have been sent by Grover. S.W.'s wife opened the package. Inside the package were several wax candles in the shape of Roman numerals and a birthday card, signed, `me.’ S.W. testified that he felt `[t]hreatened’ by the incident. S.W. explained that he `was very concerned’ and `afraid for [his] family’ because he still did not know anything about Grover beyond her name.

State v. Grover, supra.

The Court of Appeals concluded the initial section of its opinion, which sets out the facts and the legal proceedings below:

Officer Timothy Lingle testified that he spoke with Grover after the package incident. Grover admitted mailing the package to S.W. Lingle testified that Grover told him that S.W's `body language’ indicated that he `liked her but [he] was too shy to let her know.’ Grover admitted receiving the `no-stalking’ letter but said she was unsure whether she was supposed to still have contact with S.W. after the letter.

            Grover did not testify at trial and the defense did not present any witnesses.

State v. Grover, supra.

The Court of Appeals then began its analysis of the two issues Grover raised in her appeal: One was whether the evidence presented at trial was sufficient to support the jury’s verdict; the other was whether her defense attorney was “ineffective.” State v. Grover, supra. This post examines each, in that order.

The Court of Appeals began it analysis of the first issue by explaining that

We first set out the familiar standard of review. When reviewing a challenge to the sufficiency of the evidence, we employ a highly deferential standard of review. See Morden v. Continental AG, 2000 WI 51, ¶38, 235 Wis. 2d 325, 611 N.W.2d 659. We will not overturn a verdict if there is any credible evidence, under any reasonable view, that leads to an inference supporting the verdict, and we consider the evidence in the light most favorable to the verdict. Id., ¶¶38-39. We may not substitute our judgment for that of the jury `unless the evidence, viewed most favorably to the state and the conviction, is so lacking in probative value and force’ that no reasonable jury `could have found guilt beyond a reasonable doubt.’ State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990). We will uphold the verdict if any possibility exists that the jury could have drawn the inference of guilt from the evidence. See id. at 507. It is the jury's province to fairly resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the facts. See id. at 506. If more than one inference can be drawn from the evidence, the inference which supports the jury's finding must be accepted unless the testimony was incredible as a matter of law. See State v. Witkowski, 143 Wis. 2d 216, 223, 420 N.W.2d 420 (Ct. App. 1988).

State v. Grover, supra.

The Court of Appeals then outlined what the prosecution had to prove to convict Grover of stalking.  It explained that the elements of stalking are set forth in in Wis. Stat. § 940.32(2)(a)-(c): 

(a) The actor intentionally engages in a course of conduct directed at a specific person that would cause a reasonable person under the same circumstances to suffer serious emotional distress or to fear bodily injury to or the death of himself or herself or a member of his or her family or household.

(b) The actor knows or should know that at least one of the acts that constitute the course of conduct will cause the specific person to suffer serious emotional distress or place the specific person in reasonable fear of bodily injury to or the death of himself or herself or a member of his or her family or household.

(c) The actor's acts cause the specific person to suffer serious emotional distress or induce fear in the specific person of bodily injury to or the death of himself or herself or a member of his or her family or household.

Wisconsin Stat. § 940.32(1) defines `course of conduct’ in pertinent part as:

(a) `Course of conduct’ means a series of 2 or more acts carried out over time, however short or long, that show a continuity of purpose, including any of the following:

1. Maintaining a visual or physical proximity to the victim.

2. Approaching or confronting the victim.

3. Appearing at the victim's workplace or contacting the victim's employer or coworkers.

4. Appearing at the victim's home or contacting the victim's neighbors.

. . . .

7. Sending material by any means to the victim . . . .

8. Placing an object on or delivering an object to property owned, leased, or occupied by the victim.

`Serious emotional distress’ is defined as `to feel terrified, intimidated, threatened, harassed, or tormented.’ Section 940.32(1)(d).

State v. Grover, supra.

The court then began its analysis of Grover’s argument that the evidence presented at trial was not sufficient to support her conviction:

The State established the requisite `course of conduct.’ Grover saw S.W. nearly every night, often following him into whatever gas station he entered. See Wis. Stat. §940.32(1)(a)1. She followed his squad car into another county and waved at him when passing on the interstate. See § 940.32(1)(a) 1 and 3. Grover went to S.W.'s house, uninvited, to give him gifts. See § 940.32(1)(a)4. After receiving a formal letter telling her that S.W. considered her contact to be stalking and advising her not to have further contact with him, she approached him and talked with him at the grocery store. See § 940.32(1)(a)2. Also after receiving the letter, Grover sent a package to S.W.'s house. See § 940.32(1)(a)7. and 8.

Grover argues that the State failed to prove that S.W. suffered serious emotional distress. She emphasizes that she never threatened S.W. and her conduct was not illegal. Grover characterizes her conduct as merely `annoying or frustrating.’

State v. Grover, supra.

The Court then begins its analysis of Grover’s argument, explaining that

S.W. testified repeatedly that he felt threatened by Grover's conduct. S.W. had no way of knowing Grover's true motivations. From S.W.'s perspective, a person he did not know was purposely seeing him nearly every day and obviously following him as he worked his shift for unknown reasons. Grover then amplified S.W.'s fear and apprehension when she came to his house. When Grover sent S.W. the package in August 2012, S.W. again felt threatened, concerned, and scared for his safety and the safety of his family. Grover sent the package despite the `no-stalking’ letter's express direction to stop contacting S.W. The State presented sufficient evidence that S.W. suffered serious emotional distress. See Wis. Stat. §940.32(1)(d) (victim feeling `threatened’ defined as serious emotional distress).

Grover contends that the State did not prove that she knew or should have known that her conduct was causing S.W. serious emotional distress. Grover contends that there was no `overt act’ showing her awareness `that she could create such a serious level of emotional distress.’ That argument fails largely on the strength of the `no-stalking’ letter. Even if Grover was wholly ignorant that S.W. felt threatened by her conduct before the letter, such ignorance was conclusively refuted by the letter formally advising Grover that her conduct had caused S.W. serious emotional distress. After receiving the letter, Grover continued to see S.W. in the Sun Prairie area, approached him in the grocery store, and sent the anonymous package to his home.

Lastly, Grover contends that the State failed to show that a reasonable person would have suffered serious emotional distress. See Wis. Stat. § 940.32(2)(a). Grover emphasizes that she never directly contacted S.W.'s family and that the number of contacts with S.W. had decreased over time. Grover characterizes S.W.'s fears as `unreasonable’ fears of `some unknown risk’ in his `imagined vision of the world.’

We disagree. Although Grover's dismissive description of her conduct and criticism of S.W.'s reactions are possible inferences that the jury could have drawn from the evidence, the alternative inference—that S.W.'s fear was reasonable under the circumstances—was also available to the jury. We must accept the inference chosen by the jury. See Witkowski, 143 Wis. 2d at 223.

State v. Grover, supra.

The Court of Appeals then took up Grover’s second argument, which she raised in what is called a “postconviction motion.” State v. Grover, supra. The motion argued that Grover’s "defense attorney

 was ineffective in representing her.” State v. Grover, supra. More precisely, she argued that

her trial attorney was ineffective in several respects: (1) improper advice on the question of whether she should testify; (2) inadequate investigation; and (3) inadequate presentation of exculpatory evidence. The trial court denied the motion without a hearing, stating only that there was `no basis given’ for a hearing.

State v. Grover, supra.

The court began its analysis of Grover’s ineffective assistance of counsel argument by explaining that

[a] postconviction hearing is necessary to sustain a claim of ineffective assistance of counsel. See Machner, 92 Wis. 2d at 804. However, a defendant's claim that counsel provided ineffective assistance does not automatically trigger a right to an evidentiary hearing. See State v. Curtis, 218 Wis. 2d 550, 555 n.3, 582 N.W.2d 409 (Ct. App. 1998). A circuit court may deny a postconviction motion without a hearing `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.’ State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433. Whether a motion alleges sufficient material facts that, if true, would entitle a defendant to an evidentiary hearing presents a legal issue that we review de novo. See id. In determining whether Grover is entitled to an evidentiary hearing, we accept as true the facts alleged in the postconviction motion. See State v. Bentley, 201 Wis. 2d 303, 309, 548 N.W.2d 50 (1996).

In her postconviction brief, Grover asserts that she wanted to testify but she `felt compelled to follow her trial attorney's advice’ not to testify. She contends that trial counsel's ineffectiveness rendered invalid her waiver of the right to testify. Grover claims that counsel decided she would not testify and told her that if she did testify, she would be found guilty and he would no longer represent her.

State v. Grover, supra.

The opinion then goes on to explain that Grover

filed several exhibits with her postconviction motion: a lengthy history of S.W.'s gasoline purchases for his squad car from June 2009 until August 2012; records from the Department of Motor Vehicles showing the number of white Nissan Cubes registered in Dane County during that time period; the bill of sale from Grover's September 2009 purchase of a Cube; Google maps showing travel routes from Grover's house to her job; and evidence that Grover had won a $1000 gift card to a Sun Prairie gas station in December 2010.

Grover argues that the evidence of S.W.'s gasoline purchases would have contradicted his testimony that he changed his habits in response to Grover's conduct. She contends that evidence of the number of white Nissan Cubes registered in Dane County would have undercut S.W.'s claim that the car was distinctive and that any time he saw such a car Grover was the driver. Grover also faults trial counsel for not calling her father, Richard Grover, as a witness. Grover claims that her father would have testified that she `habitually’ came home from work between 11:00 p.m. and midnight, contrary to S.W.'s testimony that he saw her frequently between 3:00 a.m. and 4:00 a.m. Lastly, Grover argues that her counsel should have presented testimony of the manager of a video store in Sun Prairie who would have testified that she was a regular customer dating back to 2004, giving credence to the argument that her presence in the same areas as S.W. was purely coincidental.

The question is whether Grover has alleged facts, which if true, would entitle her to relief. See Bentley,  201 Wis. 2d at 310. We conclude that Grover's motion was sufficient to warrant an evidentiary hearing. Grover claims inadequate pretrial investigation and she has shown `”with specificity what the investigation would have revealed and how it would have altered the outcome of the trial.”’ State v. Flynn, 190 Wis. 2d 31, 48, 527 N.W.2d 343 (Wisconsin Court of Appeals 1994) (quoted source omitted). Grover claims that her trial counsel threatened to not represent her if she chose to testify, thus calling into question the validity of her waiver of her right to testify. Given those assertions, a postconviction evidentiary hearing is an appropriate next step to ensure that a defendant acted knowingly, voluntarily, and intelligently. See State v. Denson, 2011 WI 70, ¶68, 335 Wis. 2d 681, 799 N.W.2d 831 (discussing a defendant's claim of an invalid waiver to the right not to testify). We emphasize that we are not deciding that Grover has established that her waiver was invalid or that she received ineffective assistance of counsel, only that her motion was sufficient to require an evidentiary hearing on those questions.

State v. Grover, supra.

The Court of Appeals therefore held that “sufficient evidence supports the jury's verdict and we decline to order a new trial in the interest of justice.”  State v. Grover, supra. And it concluded the opinion by explaining that

[a]s to Grover's claim that her trial counsel was ineffective, we conclude that the circuit court erred in denying the postconviction motion without a hearing. Accordingly, we reverse the postconviction order and remand for an evidentiary hearing under State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).  

State v. Grover, supra.

The Court of Appeals appended a footnote to the last sentence in the paragraph immediately above in which it explained that 

            We affirm the judgment of conviction at this time because Grover has not established 

            that it should be reversed. If the circuit court determines after the hearing that Grover 

            did receive ineffective assistance of counsel, the judgment would, of course, be 

            reversed at that time.

State v. Grover, supra.