DEININGER, J.
¶ 1. Louis Thornton appeals a judgment of conviction for robbery and forgery and an order denying his motion for postconviction relief. He claims he was denied his constitutional right to postconviction/appellate counsel in this, his "matter of right" postconviction proceedings and appeal. We conclude, however, that the record establishes that he knowingly and voluntarily waived his right to postcon-viction counsel. We also conclude that Thornton's second claim of error, that the ineffective assistance of his trial counsel rendered his no contest pleas invalid, is also devoid of merit. Accordingly, we affirm the appealed judgment and order.
BACKGROUND
¶ 2. In the circuit court cases underlying this consolidated appeal, the State charged Thornton with seven felonies, all carrying repeater enhancements. The parties entered into a plea agreement calling for the dismissal of all repeater allegations and all but two unenhanced counts, one each of robbery by use of force and uttering a forged writing. In return for Thornton's no contest pleas to the two offenses, the State joined Thornton's counsel in recommending a four-year prison term and five years of concurrent probation. The trial court accepted Thornton's pleas and imposed the jointly recommended sentence.
¶ 3. Thornton's trial counsel filed a notice of his intent to seek postconviction relief, and the State Public Defender appointed postconviction counsel for him. Counsel, however, after obtaining two extensions of time for filing a postconviction motion or notice of
appeal, moved this court to withdraw.
Counsel stated in the motion that he had informed Thornton of his conclusion that "there were no meritorious issues to raise on appeal," and told Thornton of "his options." After taking some time to consider his course of action, and after receiving a letter and two form documents from counsel, Thornton signed and returned the following to his attorney:
REQUEST TO PROCEED PRO SE
I, Louis J. Thornton, hereby requests [sic] that my appointed appellate counsel, [name of counsel], seek to withdraw as my attorney in Dane County Cases #99 CF 399 and 99 CF 1436.
I understand that by proceeding as a pro-se (unrepresented) litigant, I will be solely responsible for complying with the rules of appellate procedure and will be solely responsible for the timely filing of briefs and motions. I understand that postconviction motions will have to comply with Rule 809.36(2), Stats, and that my briefs will have to conform to the content, form, and length requirements of Rule 809.19, Stats. I further understand that I cannot expect successor appellate counsel to he appointed, even if I later decide that proceeding pro-se was a mistake.
In making this decision to proceed pro-se, I have decided against the alternative of advising Attorney [name] to file a no-merit report. I realize that if Attorney [name] filed a no-merit report pursuant to Rule 809.32, Stats., I would have the opportunity to respond to the no-merit report and that the court would consider both the no-merit and my response in determining whether my case presented issues of merit.
I have carefully considered the situation, and it is my expressed desire that I be allowed to proceed pro-se. I make this decision freely, voluntarily, and intelligently.
/s/ Louis J. Thornton
Louis J. Thornton
05-11-63 Date of Birth
March 10, 2000 Date
OPTIONS
_ I hereby give my appellate counsel [name] permission to close my cases in regards to Dane County Case Nos. 99 CF 399 and 99 CF 1436.
I hereby request that my appellate counsel [name] file a no-merit brief in my cases, Dane County Case Nos. 99 CF 399 and 99 CF 1436.
L.T V I hereby request that my appellate counsel [name] seek permission to withdraw as my appellate counsel in Dane County Case Nos. 99 CF 399-and 99 CF 1436 in order that I may proceed pro-se.
I have checked the appropriate option above. I make this decision freely, voluntarily, and intelligently.
/s/ Louis J. Thornton
Louis J. Thornton
05-11-63 Date of Birth
March 10, 2000 Date
¶ 4. Counsel also stated in his withdrawal motion his belief that Thornton "freely and voluntarily desires to proceed pro-se," and he requested on Thornton's behalf that additional time be granted for Thornton to move for postconviction relief or to commence an appeal. In an order granting the motion to withdraw and a sixty-day extension of time, we concluded that "[t]he documents submitted satisfy us that [Thornton] is waiving his constitutional right to appellate counsel knowingly and voluntarily."
¶ 5. Thornton subsequently wrote to the trial court requesting the court to appoint him an attorney for postconviction proceedings. The record does not indicate what action, if any, was taken on this request, other than the forwarding of copies to the office of the State Public Defender and to the assistant district attorney who had prosecuted Thornton. Thornton next filed a pro se postconviction motion in the circuit court requesting that he be permitted to withdraw his no contest pleas. In it, he claimed, among other things, that his trial counsel had withheld certain information from him, thereby rendering his pleas unknowing and involuntary.
¶ 6. After filing his motion, Thornton again requested the trial court to appoint counsel for him. He forwarded with his request a copy of a letter from the office of the State Public Defender stating that it would not appoint counsel for Thornton because he "has waived his constitutional right to appellate counsel," citing this court's order to that effect.
¶ 7. The circuit court entered an order scheduling Thornton's motion to withdraw his plea for an eviden-tiary hearing. The order also stated that Thornton "should contact" the State Public Defender "and/or" the Legal Assistance for Inmates Program at the University of Wisconsin Law School "for legal assistance." Thornton apparently contacted the latter as there is correspondence in the record from the director of the program to the court indicating that, after speaking to a program attorney, "Mr. Thornton declined LAIP representation." Another letter from the State Public Defender reiterated to Thornton that because he had chosen "to dismiss the lawyer that this office appointed to handle your appeal, we will not appoint another lawyer for you on this matter."
¶ 8. Thornton renewed his request for court-appointed counsel several more times prior to and at the commencement of the hearing on his motion. The trial court denied Thornton's request and conducted the hearing. Thornton was the lone witness, and the following summary by the prosecutor accurately characterizes his testimony:
In effect, your Honor .. . [a]ll of Mr. Thornton's claims, incoherent as they are, boil down to claims that [trial counsel] was ineffective. She didn't meet with him, she didn't talk with him, she didn't discuss, she didn't separate these two cases in her mind, she didn't provide
him with discovery, and that, therefore, his pleas were involuntary because he was confused by inadequate counsel.
The court denied Thornton's motion, concluding that he had not satisfied his burden to establish grounds for withdrawing his pleas. The court stated that it remembered and had reviewed the transcript of Thornton's plea hearing, where "we took a lot of time ... to make sure that you understood everything, that you asked questions, that you had a chance to communicate."
¶ 9. Thornton appeals, pro se, the subsequently entered order denying his postconviction motion, as well as the judgment of conviction which preceded it.
ANALYSIS
¶ 10. In its response brief, the State has "reassembled" Thornton's arguments on appeal into two distinct claims of error: "(1) [violation of his right to counsel in his direct appeal"; and "(2) [p]lea withdrawal on grounds of ineffective assistance of trial counsel." Thornton did not file a reply brief, and he has therefore not objected to the foregoing statement of the issues raised in his appeal. We accept the State's framing of the issues as a fair characterization of the claims Thornton has presented for review. We address them in the order stated.
¶ 11. Whether Thornton was wrongly deprived of his constitutional right to counsel is a question of constitutional fact which we review de novo.
See State ex rel. Warren v. Schwarz,
219 Wis. 2d 615, 647-48, 579 N.W.2d 698 (1998). Questions of "constitutional fact" are not actually "facts" in themselves, but are questions
which require the " 'application of constitutional principles to the facts as found.'"
See State v. Woods,
117 Wis. 2d 701, 715, 345 N.W.2d 457 (1984) (citation omitted). The facts relating to Thornton's claim that he was wrongfully denied counsel during postconviction proceedings are not disputed, leaving only the legal question of whether his constitutional rights were violated.
¶ 12. A person convicted in Wisconsin of committing a crime has a constitutionally guaranteed right to appeal his or her conviction to this court. Wis. Const. art. I, § 21(1);
State v. Perry,
136 Wis. 2d 92, 98, 401 N.W.2d 748 (1987). The right to an appeal includes the right that "the appeal be a meaningful one."
Id.
at 99. An indigent defendant is constitutionally entitled to the appointment of counsel at public expense for the purpose of prosecuting his or her
"one and only appeal. . .
as of right" from a criminal conviction.
Douglas v. California,
372 U.S. 353, 357-58 (1963);
State ex rel. Warren,
219 Wis. 2d at 648.
¶ 13. The State does not dispute that Thornton is indigent, and it concedes that the instant appeal, including the postconviction proceedings in the trial court which preceded it, constitutes Thornton's first effort to
obtain relief from his conviction under Wis. Stat. Rule 809.30 (1999-2000).
Thus, there is no dispute that Thornton was constitutionally entitled to he represented by counsel at public expense, unless he lawfully waived or for some reason forfeited that right.
¶ 14. The State argues that Thornton knowingly and voluntarily waived his right to postconviction counsel. A criminal defendant may waive his or her right to counsel in criminal trial court proceedings, provided the record reflects that the waiver is knowingly, intelligently and voluntarily made, and that the defendant is competent to proceed pro se.
State v. Klessig,
211 Wis. 2d 194, 203-04, 564 N.W.2d 716 (1997). Appellate or postconviction counsel appointed by the State Public Defender may move to withdraw from representation of a client, and in determining the motion, the court "shall consider ... whether the defendant waives the right to counsel." Wis. Stat. Rule 809.30(4)(c).
Although several Wisconsin appellate opinions address the requirements for effecting a valid waiver of trial counsel, there appears to be no state precedent which squarely ad
dresses the requirements for a proper waiver of post-conviction or appellate counsel.
¶ 15. The United States Court of Appeals for the Seventh Circuit, however, has addressed the issue in a case involving a Wisconsin state court conviction and appeal.
See Oimen v. McCaughtry,
130 F.3d 809 (7th Cir. 1997). Oimen was convicted of felony murder and he appealed to this court.
Id.
at 810. The State Public Defender appointed postconviction/appellate counsel, who filed a postconviction motion in the circuit court on Oimen's behalf.
Id.
After the motion was denied, counsel filed a notice of appeal and an opening brief with this court, and the State responded.
Id.
At that point, Oimen moved pro se for his appellate counsel to withdraw because he "refused to raise a claim of ineffective assistance of trial counsel" that Oimen wanted counsel to pursue.
Id.
Counsel responded by requesting permission to withdraw, citing Oimen's claim that he was providing ineffective representation and the resulting conflict of interest which that claim created for counsel.
Id.
at 810-11.
¶ 16. We "advised Oimen in writing that he might not be granted new appellate counsel if [his present appellate counsel] were allowed to withdraw," and we ordered him to "advise the court whether, knowing that he may be forced to proceed
pro se,
he still wanted" his counsel removed.
Id.
at 811. Oimen responded in writing that he wanted to proceed in that fashion, and we granted his motion and his counsel's request.
Id.
We also decided not to consider the brief counsel had filed on Oimen's behalf, and both we and the State Public Defender declined to appoint Oimen successor counsel.
Id.
Oimen filed a pro se brief and we affirmed his conviction, as did the Wisconsin Supreme Court, where
Oimen was represented by a state public defender on the petition for review.
Id.
¶ 17. The Seventh Circuit noted that Oimen was constitutionally entitled to counsel during proceedings in this court, and also when he was asked to decide whether to return to the circuit court for a
Machner
hearing.
Id.
The court also pointed out that Oimen did not have to show that he suffered prejudice from his lack of counsel at that stage of the appeal process because it constituted a complete denial of representation.
Id.
The court determined that the dispositive inquiry was "whether the letters between Oimen and the court of appeals constitute a valid waiver of the right to counsel."
Id.
It concluded that they did:
But what exactly does it take to effectuate a valid waiver of counsel on appeal? For reasons that are too clear to us to require explanation, appellate courts do not engage in face-to-face dialog with defendants. So a waiver on appeal must be accomplished through written communication. Here the court of appeals told Oimen that if he insisted on having [his counsel] withdraw he might not get a second attorney. It was clear that Oimen wanted substitute counsel, but he also clearly signaled his willingness to proceed
pro se
if [his present counsel] was his only other choice. Especially given that [counsel]'s only perceived deficiency was that he would not do something which Oimen had no right to insist on, we find that Oimen validly waived his right to counsel.
Id.
at 812.
¶ 18. The United States District Court for the Eastern District of Wisconsin has distinguished
Oimen
in a case where it concluded a defendant's right to postconviction/appellate counsel was violated.
Wisconsin ex rel. Toliver v. McCaughtry,
72 E Supp. 2d 960, 977 (E.D. Wis. 1999). The District Court explained that United States "Supreme Court precedent does not require . . . any specific court procedure — such as a court hearing — for finding waiver," and that the Seventh Circuit's opinion in
Oimen
acknowledged the validity of written communications in establishing waiver in the appellate counsel context.
Id.
at 974. The court concluded in
Toliver,
however, that this court had "failed to use
any
means to provide Toliver with a warning or confirm that he was knowingly seeking to proceed pro se and had no misconceptions about whether substitute counsel would be appointed."
Id.
at 977.
¶ 19. The court also contrasted our actions in
Toliver
with the waiver of counsel procedure described in an unpublished decision of this court. The District Court's comments suggest that our actions in the unpublished case would pass constitutional muster:
[CJounsel informed the court [of appeals] that his client wished to proceed pro se. In a five-page order the court noted its independent responsibility to determine that a waiver of counsel is made "knowingly, voluntarily and intelligently, as a deliberate choice to proceed
pro se
with an awareness of the difficulties such self-representation entails"; provided the appellant with information on how counsel could be valuable to him; informed him about his right to a no merit report; and, importantly, warned the appellant twice that it would not appoint successor counsel. The court allowed [the defendant] an opportunity to advise the clerk whether he still wished to discharge his attorney and indicated ■ that if [his] response left the court "in doubt as to his
understanding of the consequences of proceeding
pro se,"
the court would not authorize counsel's withdrawal.
Id.
at 978 (citations omitted).
¶ 20. On a distinct but related issue of how appointed counsel, after concluding there is no merit to further postconviction or appellate proceedings on behalf of a client, should document the client's decision to waive an appeal, the Wisconsin Supreme Court has declined "to make any particular method of documentation mandatory."
State ex rel. Flores v. State,
183 Wis. 2d 587, 624, 516 N.W.2d 362 (1994).
The court explained that the record must reflect that the defendant was informed of the right to appeal and of the right to counsel, as well as of the "No Merit report option" under
Anders v. California,
386 U.S. 738 (1967) and Wis. Stat. Rule 809.32.
Id.
at 603-07. However, "[i]t does not matter how or in what manner the defendant is so informed."
Id.
at 610.
We conclude that a criminal defendant may be informed about appellate rights through the use of written materials. Once so informed, the information need not be repeated verbally. Again, all that is required is that the proper information be conveyed.
Id.
at 614.
¶ 21. The State offers the following synthesis of the foregoing decisions. Before a court may conclude that a criminal defendant has knowingly and voluntarily waived his or her right to counsel on direct appeal, it must satisfy itself that the defendant is aware: (1) of the
Flores
rights (to an appeal, to the assistance of counsel for the appeal, and to opt for a no-merit report); (2) of the dangers and disadvantages of proceeding pro se;
and (3) of the possibility that if appointed counsel is permitted to withdraw, successor counsel may not be appointed to represent the defendant in the appeal. We agree with the State that ensuring a defendant has received and understands the listed information is both necessary and sufficient to support a determination that the defendant's tendered waiver of counsel is knowing and voluntary.
¶ 22. We also conclude that, given the nature of proceedings in this court, the necessary "colloquy" may be accomplished via written communications with the
defendant, initiated either by the court or by counsel seeking to withdraw. In the latter case, however, the court must satisfy itself as to the sufficiency of the content of counsel's documents and to their voluntary execution by the defendant. If counsel moves to withdraw prior to the filing of a notice of appeal, the motion must be directed to the circuit court (see footnotes 1 and 4), and a more traditional oral colloquy between defendant and the court should be employed.
See Klessig,
211 Wis. 2d at 206.
¶ 23. To the foregoing requirements for a valid waiver in all cases, we add the following which may apply in some. If a waiver of appellate counsel is tendered to this court, and we determine that the correspondence among counsel, the defendant and the court (or anything in the record, if it has been filed) raises a question regarding the defendant's understanding of the necessary information, we may either deny the waiver or refer the matter to the circuit court to conduct a hearing on the matter.
The same would apply if we have reason to doubt the defendant's competency for self-representation.
See id.
at 212. On this latter point, we note that "persons of average ability and intelligence" should be permitted to represent themselves, and that we should only deny or delay the acceptance of an otherwise proper waiver if" 'a specific
problem or disability can be identified'" in the submissions before us.
Id.
(citation omitted).
¶ 24. We are satisfied that these requirements for a valid waiver of appellate counsel are met on the present record. The documents prepared by counsel and executed by Thornton, together with the statements in counsel's motion to withdraw (see ¶¶ 3-4), establish that Thornton received and acknowledged his understanding of the necessary information to render his waiver knowing and intelligent. Nothing in these materials calls into question the voluntariness of Thornton's decision to proceed pro se or his competence to represent himself.
Soon after we accepted his waiver
and permitted his counsel to withdraw, Thornton had a change of heart and actively pursued the appointment of successor counsel in the circuit court. That fact, however, does not undermine the validity of his initial, knowing and voluntary decision to represent himself in postconviction and appellate proceedings.
¶ 25. We turn next to Thornton's claim that the trial court erred in denying his request to withdraw his pleas on the grounds that his trial counsel rendered ineffective assistance prior to his pleading no contest. To prevail on a claim of ineffective assistance of counsel, a defendant must establish that his trial counsel's performance was deficient and that this performance prejudiced his defense.
See Strickland v. Washington,
466 U.S. 668, 687 (1984). In analyzing an ineffective assistance claim, this court may choose to address either the "deficient performance" component or the "prejudice" component first.
See id.
at 697. If we determine that the defendant has made an inadequate showing on either component, we need not address the other.
See id.
To establish prejudice, Thornton must establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
Id.
at 694.
¶ 26. Although the circuit court conducted an "evidentiary. hearing," the only testimony Thornton presented was his own. We must first decide, therefore,
if the trial court properly denied Thornton's motion without hearing from Thornton's trial counsel regarding the events which preceded Thornton's plea. (See footnote 5.) In effect, the dispositive question is: Did the trial court err in denying Thornton's postconviction motion without a (complete) evidentiary hearing? We conclude the court did not err.
¶ 27. A circuit court may deny a postconviction motion alleging ineffective assistance of counsel as a basis for plea withdrawal without conducting a
Mach-ner
hearing if the motion fails to allege sufficient facts which, if proven, would entitle the defendant to relief.
See State v. Bentley,
201 Wis. 2d 303, 318, 548 N.W.2d 50 (1996). Thornton's motion alleges, in conclusory fashion, that his trial counsel did not inform him of certain facts, and had she done so, he would not have pled no contest.
Lacking, however, is any" 'explanation of
why
the defendant alleges he would have gone to trial,'"
id.
at 314 (citation omitted), or objective facts which would "allow the court to meaningfully assess his claim of prejudice,"
id.
at 318.
¶ 28. Moreover, as the State points out, the plea bargain which Thornton and his counsel struck with the State reduced his potential maximum exposure from 102 years of imprisonment to twenty, and obtained for him a joint sentencing recommendation (which the court accepted) of only four years imprisonment with five years concurrent probation. Thornton's chief complaint against his trial counsel is that he lacked full knowledge of a possible defense against one or more of the forgery counts. He offers no explanation in his motion, however, as to why this knowledge (or longer discussions with his counsel) would have prompted him to reject an extremely favorable plea agreement which resolved all pending charges, and which he had apparently instructed his counsel to propose. (See footnote 10.)
¶ 29. Finally, as we have noted, Thornton testified at the postconviction hearing. His testimony essentially replicated the allegations in his motion. Just prior to the court's ruling, the prosecutor asked Thornton the following:
Q Your basic claim, if I'm understanding, Mr. Thornton, is that [trial counsel] did not pass on to you information about your case and that had you had that information at the time to think about it, to digest it, that you would not have entered your pleas. Have I got that essentially right?
Rather than agreeing with the prosecutor's potentially helpful summary, however, Thornton replied: "Essen
tially, no. My basic thing is that my attorney knew I wasn't guilty. You knew I wasn't guilty. Why would you convict an innocent man?"
¶ 30. Thornton's response arguably negates any claim of prejudice stemming from his counsel's alleged omissions because it disavows a causal connection between the omissions and Thornton's plea. His protestation of innocence, although a factor to be considered in certain plea withdrawal contexts,
does not cure Thornton's failure to allege objective facts from which a court could conclude that he had suffered prejudice on account of his trial counsel's performance. In short, we agree with the trial court's conclusion that Thornton did not meet his burden to put forward sufficient factual allegations, which if true, would support withdrawal of his no contest pleas.
CONCLUSION
¶ 31. For the reasons discussed above, we affirm the appealed judgment and order.
By the Court.
— Judgment and order affirmed.