from a judgment and an order of the circuit court for
Walworth County Nos. 2016CF62 2016CF162: DAVID M. REDDY,
Blanchard, Kloppenburg and Fitzpatrick, JJ.
Simon Jeninga appeals a judgment of conviction and an order
denying postconviction relief entered by the Walworth County
Circuit Court. Jeninga was convicted of one count of
second-degree sexual assault of a child and one count of
possession of child pornography pursuant to his guilty pleas
to those charges. Jeninga filed a postconviction motion to
withdraw his plea, alleging that his trial counsel was
constitutionally ineffective for not filing a motion to
suppress evidence that was found on his cell phone. Following
a Machner hearing, the court denied Jeninga's
postconviction motion. We affirm based on our conclusion that
Jeninga has not adequately supported his allegation that,
absent trial counsel's ineffective assistance, he would
not have entered any plea and, instead, would have gone to
The following undisputed facts are gleaned from the record.
We discuss only those facts necessary to place in context
Jeninga's argument that he would not have entered any
plea and, instead, would have gone to trial had the evidence
from his cell phone been suppressed.
As part of an investigation into an alleged sexual assault of
a child by Jeninga, police seized Jeninga's cell phone
and obtained a search warrant to search its contents.
Forensic analysis of Jeninga's cell phone revealed
evidence of child pornography.
Jeninga was charged with one count of repeated sexual assault
of a child and ten counts of possession of child pornography.
The State moved to join the two cases. Jeninga's trial
counsel filed an opposition to the joinder. The circuit court
granted the State's motion. Jeninga's trial counsel
did not file a motion to suppress the evidence of child
pornography obtained from Jeninga's cell phone.
Jeninga and the State negotiated a plea agreement, pursuant
to which Jeninga pled guilty to an amended charge of
second-degree sexual assault of a child under the age of
sixteen and one count of possession of child pornography. The
nine other counts of possession of child pornography were
dismissed but read in to the record for sentencing purposes.
The State agreed to recommended sentences for the two counts
that would result in a total of ten years of initial
confinement followed by ten years of extended supervision.
The defense remained free to argue for any sentence. The
circuit court accepted Jeninga's pleas and followed the
State's recommendation, sentencing Jeninga to ten years
of initial confinement followed by ten years of extended
supervision on the second-degree sexual assault count, and a
concurrent term of three years of initial confinement
followed by three years of extended supervision on the child
Jeninga filed a motion for postconviction relief contending
that his trial counsel was constitutionally ineffective for
failing to file a motion to suppress the evidence found on
Jeninga's phone. The postconviction motion alleged that,
had trial counsel filed a motion to suppress and had the
evidence been excluded, Jeninga would not have entered any
plea but, instead, would have gone to trial. In the motion,
Jeninga's postconviction counsel stated that, at a
Machner hearing, Jeninga "will testify"
that, had a suppression motion been filed and the evidence
suppressed, "he would not have entered any plea"
and would have gone to trial. Jeninga did not submit an
affidavit in support of his postconviction motion.
The circuit court granted Jeninga's request for a
Machner hearing, at which his trial counsel gave the
following pertinent testimony:
Q: Would you agree that the joinder [of the sexual assault
and child pornography cases] weakened Mr. Jeninga's
chances of success on the sexual assault charge?
A: Yes, which is why I fought the j oinder motion.
Q: And did the joinder decision affect Mr. Jeninga's
decision on whether to go to trial or to take pleas?
A: I believe it did.
Q: And did it affect your advice as to ...