State v. Hajji Y. McReynolds

2022 WI APP 25

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2021AP943

†Petition for Review filed

Complete Title of Case:

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

HAJJI Y. MCREYNOLDS,

DEFENDANT-APPELLANT.†

Opinion Filed: April 12, 2022
Submitted on Briefs: January 11, 2022

JUDGES: Stark, P.J., Hruz and Gill, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
briefs of Colleen Marion, assistant state public defender, Madison.

Respondent
ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the
brief of Kiernan M. O’Day, assistant attorney general and Joshua L.
Kaul, attorney general.
2022 WI App 25

COURT OF APPEALS
DECISION NOTICE
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.
April 12, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2021AP943-CR Cir. Ct. No. 2014CF872

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

HAJJI Y. MCREYNOLDS,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Eau Claire County: WILLIAM M. GABLER, SR. and EMILY M. LONG, Judges.
Affirmed.

Before Stark, P.J., Hruz and Gill, JJ.

¶1 STARK, P.J. Hajji Y. McReynolds appeals from a judgment,
entered after a jury trial, convicting him of two counts of delivery of a controlled
No. 2021AP943-CR

substance and from an order denying his postconviction motion. 1 McReynolds
claims multiple errors, both at trial and at sentencing. He argues that his trial
counsel provided constitutionally ineffective assistance by failing to object to both
inadmissible vouching evidence provided by the investigating officer as well as the
State’s elicitation of improper character evidence concerning McReynolds’ alleged
affiliation with the Vice Lord gang. McReynolds also claims that WIS. STAT.
§ 973.017(10m)(b) (2019-20),2 is unconstitutional as applied to him. Specifically,
he argues that he was denied his constitutional rights to a public trial and to be
present at sentencing when, after the sentencing court imposed his sentences, it
failed to state in open court the reasons for the sentences imposed and instead filed
a written statement of the reasons for its sentencing decision.

¶2 We conclude that the investigating officer’s trial testimony regarding
the truthfulness of information provided by the confidential informant during the
investigation did not constitute impermissible vouching testimony in violation of
State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984). McReynolds’
trial counsel, therefore, did not perform deficiently by failing to object to that
testimony. We further conclude that McReynolds was not prejudiced by his
counsel’s failure to object to the admission of improper character evidence
pertaining to his alleged gang affiliation.

¶3 As to McReynolds’ as-applied constitutional claims, we first
determine he forfeited his claim that his right to a public trial was violated when the

The Honorable William M. Gabler, Sr. presided over McReynolds’ trial and entered the
1

judgment of conviction. We will refer to Judge Gabler as the “sentencing court.” The Honorable
Emily M. Long entered the order denying McReynolds’ postconviction motion. We will refer to
Judge Long as the “postconviction court.”
2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

2
No. 2021AP943-CR

sentencing court filed a written statement with the reasons for its sentencing
decision after the judgment of conviction was entered. We decline to apply the
forfeiture rule to McReynolds’ subsequent argument that his right to be present at
sentencing was violated through the court’s application of WIS. STAT.
§ 973.017(10m)(b), but we ultimately conclude that his as-applied constitutional
claim in that regard is without authority and underdeveloped. While McReynolds
has a constitutional and statutory right to be present at the imposition of his sentence,
he does not show beyond a reasonable doubt that the court’s use of
§ 973.017(10m)(b) to file a written statement of its rationale for the sentences
imposed violated his constitutional right to be present at sentencing. Accordingly,
we affirm.

BACKGROUND

¶4 The State charged McReynolds in a four-count complaint after two
informant-initiated controlled drug buys occurred.3 The case proceeded to trial on
two delivery of cocaine charges.

¶5 Investigator Aaron Ranallo of the Eau Claire County Sheriff’s Office
testified that he was “contacted by a confidential informant who indicated that [he]
would be able to purchase cocaine from Mr. McReynolds.” Ranallo, who had
previously worked with the informant, coordinated with him to set up two controlled
drug buys. Ranallo testified in detail about the process involved with controlled
drug buys in general and for this case in particular. For each buy in this case, the

3
McReynolds was initially charged with one count of delivery of cocaine (more than one
gram but less than five grams), one count of delivery of cocaine (less than one gram), and two
counts of misdemeanor bail jumping. On the first day of trial, the State moved to dismiss the
misdemeanor bail jumping charges and to reduce the first count of delivery of cocaine to less than
one gram. The circuit court granted both motions.

3
No. 2021AP943-CR

informant was provided with $150 in prerecorded money to purchase the drugs, he
was searched beforehand, and he wore a wire and carried a video camera. After
each drug buy took place, the informant gave an oral statement to Ranallo.

¶6 When asked about his motivation for contacting the police to conduct
these controlled drug buys, the informant suggested that his motives were altruistic.
He testified that he was a former drug user—who acknowledged being convicted of
a crime ten times—and was “sort of” friends with McReynolds, but he “felt that
[McReynolds] was trying to get me to use again…. So I felt that [McReynolds]
needed to be off the streets.” The informant was also paid $100 for each drug buy
in exchange for cooperating with law enforcement.

¶7 The informant testified that he bought drugs from McReynolds during
the first controlled drug buy on August 11, 2014. After the encounter, the informant
provided police with an oral statement as well as three small plastic bags, which
contained a white substance later confirmed to be cocaine. The State played the
video of the drug buy for the jury, which was seven minutes and forty-seven seconds
long, but the exchange itself was not visible, as the camera was in the palm of the
informant’s hand.

¶8 The jury learned that between the first and second buys, an altercation
occurred between the informant and McReynolds. McReynolds had asked the
informant to meet him, and when he arrived, McReynolds “hit [the informant] in
the nose, broke [his] nose. Then [McReynolds] left.” The informant testified that
McReynolds did this because the informant “owed one of [McReynolds’] friends
some money.” According to the informant, the friend was an individual called
“KG.” The State then asked, “[W]ho is KG?” The informant responded, “One of
[McReynolds’] Vice Lord friends.”

4
No. 2021AP943-CR

¶9 Days after the altercation, McReynolds called the informant and
apologized, stating, “My fault. I shouldn’t have done what I did.” During that same
call, McReynolds also told the informant, “And I’m still all good,” meaning that he
had drugs available for purchase. The informant and Ranallo then set up the second
drug buy. The informant admitted that his motivation for offering to conduct the
second drug buy was that he was “mad” at McReynolds. However, he also testified
that his anger did not motivate him to lie about what happened.

¶10 The second controlled drug buy took place on August 18, 2014. The
informant testified that when McReynolds arrived at the agreed-upon location,
McReynolds was with the individual previously identified as KG. The State asked
again, “And who is KG?” The informant responded, “His Vice Lord brother.” The
informant got into the vehicle with McReynolds and KG, and they “went to a
location around the corner somewhere, a couple blocks down the street.” According
to the informant, McReynolds got out and “went between some houses, came back,
[and] handed [him] the cocaine.” When Ranallo met up with the informant, the
informant again “turned over two plastic bags containing a white substance,” which
later tested positive for cocaine. The State also played the video of the second drug
buy for the jury, which lasted approximately thirty-two minutes. McReynolds was
visible on the video, but the drug exchange was not visible.

¶11 The jury found McReynolds guilty of both charges. At the sentencing
hearing, the court stated its sentencing decision on the record, imposing five years’
initial confinement and five years’ extended supervision on each count, to be served
concurrently. The sentencing court then invoked WIS. STAT. § 973.017(10m)(b),
explaining that the statute allowed the court to “state the reasons for its sentencing
decision in writing and include the written statement in the record.” According to
the court,

5
No. 2021AP943-CR

I’ve never done that before, but I’m going to do it here
today, and the reason for that is, Mr. McReynolds, really, as
a courtesy to you, and I mean this sincerely, as a courtesy to
you. I don’t want to go through the long and ponderous
explanation [here] that I’m going to make in—in writing
because I just think that you may consider it demeaning and
insulting. I don’t want you to feel demeaned. I don’t want
you to feel insulted. I don’t want you feel lectured to.

You know, and particularly in light of the fact that, you
know, in this particular case there were three separate times
in which you refused to come to court, one on October 3rd,
2014; another one on December 8th, 2014; and then, finally,
the long experience we had on the first day of the jury trial
on April 9th, 2015 when you refused to come, you were
forced to show up in the wheelchair, you were disruptive in
the courtroom, you had to be removed to the video room,
you rolled off the wheelchair and unplugged the video
connection, and you had to be restrained by jail staff. You
ultimately did cooperate, but, really, I think that it is not in
your interest for me to go through the long analysis [at the
hearing] that I am going to do in writing.

Three days later, the court filed its “Written Reasons for Sentencing Decision.”4

¶12 McReynolds’ first postconviction counsel filed a WIS. STAT.
RULE 809.32 no-merit report. McReynolds subsequently filed a “lengthy document
challenging his convictions,” which we deemed his response to the no-merit report.
We rejected the no-merit report, noting an issue of arguable merit regarding the jury
instructions. McReynolds’ first postconviction counsel then informed this court that
he would file a WIS. STAT. § 974.02 postconviction motion, and we dismissed the
no-merit appeal. McReynolds’ subsequently filed postconviction motion addressed

4
As McReynolds does not challenge the sentencing court’s exercise of discretion as to the
sentences it imposed, we will not recount the sentencing factors it considered.

6
No. 2021AP943-CR

only the jury instruction issue that we previously identified in our no-merit review.5
After a Machner6 hearing, where McReynolds’ trial counsel testified and
McReynolds refused to appear, the postconviction court denied the motion.

¶13 McReynolds then filed a notice of appeal from the postconviction
court’s oral ruling. In response, we entered an order stating that we lacked
jurisdiction to review the ruling until it was reduced to writing and extending the
deadline for the court to decide the postconviction motion. We also stated that
McReynolds’ notice of appeal would be “deemed filed on the date of the entry of
the order on the postconviction motion.”7 The court filed the written order on
September 26, 2019.8

5
We agree with the State that McReynolds has abandoned this jury instruction issue by
failing to raise it on appeal. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588
N.W.2d 285 (Ct. App. 1998) (“[A]n issue raised in the trial court, but not raised on appeal, is
deemed abandoned.”).
6
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
7
McReynolds’ postconviction motion was filed February 5, 2019. The Machner hearing
occurred on June 14, 2019. However, the record also contains an order, entered February 26, 2019,
denying the motion for postconviction relief. As the State acknowledges, it is unclear from the
record why the postconviction court initially denied the motion, then later held a Machner hearing,
and again orally denied the motion. We also noted this issue in our order, and we “deem[ed] the
[February 26, 2019 order] to be superseded by the circuit court’s decision to hold a hearing and
rule further on the postconviction motion.”
8
During this period, McReynolds’ first postconviction counsel also moved to withdraw,
and the postconviction court granted the motion and ordered that the Office of the State Public
Defender (SPD) appoint new counsel. The SPD filed a letter seeking reconsideration of the court’s
order, noting that the issues seemed to involve disagreements in legal strategy and that McReynolds
believes “that counsel somehow holds racist views towards himself.” In response, the court vacated
its original order and entered a new order, allowing first postconviction counsel to withdraw but
not ordering the SPD to appoint new counsel.

7
No. 2021AP943-CR

¶14 McReynolds, now represented by new postconviction counsel, filed a
second postconviction motion that gives rise to this appeal.9 McReynolds sought a
new trial based on the erroneous admission of both improper character and vouching
evidence, or, in the alternative, ineffective assistance of counsel based on both of
those issues. He also sought resentencing based on the sentencing court’s use of
WIS. STAT. § 973.017(10m)(b), which he argued violated his right to be present at
sentencing. The State argued that McReynolds’ newest postconviction motion was
barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994),
based on this being his “third series of postconviction arguments” and the fact that
the postconviction court had already denied his prior motion.

¶15 Following a nontestimonial hearing, the postconviction court denied
McReynolds’ motion, concluding that there was no vouching evidence and that
McReynolds was not prejudiced by counsel’s failure to object to the improper
character evidence. The court did not reach the merits on McReynolds’ argument
that his sentencing occurred in an unconstitutional manner, as it concluded that the
sentencing court complied with the WIS. STAT. § 973.017(10m)(b) requirements.
The court also did not address the Escalona bar. McReynolds appeals. We discuss
additional facts below, where relevant to our analysis.

DISCUSSION

On December 16, 2019, we entered an order extending the time for McReynolds to file his
brief, noting this history and observing that it “appears that McReynolds is now proceeding pro
se.” On January 14, 2020, the SPD filed a motion to extend the time for filing a postconviction
motion or notice of appeal, asserting that the time to file a notice of appeal lapsed while the motion
to withdraw as counsel was pending. We granted that motion and later entered an order clarifying
that we were construing the prior motion “as also including a notice of voluntary dismissal.” We
dismissed McReynolds’ appeal.
9
McReynolds also filed another motion to extend the deadline to file a postconviction
motion or notice of appeal, which we also granted.

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No. 2021AP943-CR

I. Escalona Bar

¶16 As an initial matter, the State again argues on appeal that this case is
procedurally barred under Escalona. “We need finality in our litigation.”
Escalona, 185 Wis. 2d at 185. Thus, absent a sufficient reason, a defendant is
procedurally barred from raising claims “in a [WIS. STAT. §] 974.06 motion that
could have been raised on direct appeal or in a [WIS. STAT. §] 974.02 motion.”
Escalona, 185 Wis. 2d at 181-82, 184-86; § 974.06(4). Whether a sufficient reason
is stated for failing to bring claims earlier is a question of law subject to de novo
review. State v. Romero-Georgana, 2014 WI 83, ¶30, 360 Wis. 2d 522, 849
N.W.2d 668.

¶17 The State argues that because the postconviction court denied
McReynolds’ first postconviction motion, “this present motion is a successive
motion and is procedurally barred.” Citing State v. Evans, 2004 WI 84, ¶¶27, 29,
273 Wis. 2d 192, 682 N.W.2d 784, abrogated on other grounds by State ex rel.
Coleman v. McCaughtry, 2006 WI 49, ¶29, 290 Wis. 2d 352, 714 N.W.2d 900, the
State asserts that “[o]nce the circuit court denied McReynolds’ original
postconviction motion, McReynolds had the option to appeal that decision to this
[c]ourt or let the time to appeal lapse,” but McReynolds “did not have the option to
file a successive WIS. STAT. § 974.02 motion that raised entirely new arguments.”
Further, the State claims that the arguments McReynolds now makes on appeal were
known to him when he filed his first postconviction motion, and there is “simply no
reason that McReynolds could not have made the arguments that he now makes in
his first postconviction motion.”

¶18 McReynolds contends that his claims are not barred, as he obtained
permission from this court to file a successive WIS. STAT. § 974.02 motion after his

9
No. 2021AP943-CR

first appeal was voluntarily dismissed.10 According to McReynolds, he “is entitled
to a (single) direct appeal from his judgment of conviction—and this is it.” Under
the unique facts of this case, we agree.

¶19 As noted above, McReynolds’ first postconviction counsel filed a no-
merit report, which we denied based on a jury instruction issue. McReynolds then
filed a postconviction motion based on that purported error, alleging ineffective
assistance of his trial counsel. Once the postconviction court denied that motion, he
appealed to this court. While that appeal was pending, his first postconviction
counsel moved to withdraw. Both before and after McReynolds obtained new
postconviction counsel, we granted both of McReynolds’ requests to extend the
WIS. STAT. RULE 809.30(2)(h) deadline to file a “notice of appeal or motion seeking
postconviction” relief, and we granted the motion to voluntarily dismiss his first
appeal. (Emphasis added.) The State did not object.

¶20 The State’s reliance on Evans to object now is misplaced. In Evans,
the defendant asked appointed counsel “to close his file,” allowed his direct appeal
rights to lapse, and then sought to have his direct appeal rights reinstated two years
late. Evans, 273 Wis. 2d 192, ¶¶6-7, 11. Here, we granted McReynolds’ timely
motion to file a successive postconviction motion and voluntarily dismiss his first
appeal. His direct appeal rights did not lapse. Under the circumstances, and given

10
McReynolds also argues that the State waived this argument. McReynolds claims that
despite the State arguing multiple times in its submissions before the postconviction court that the
procedural bar set forth in State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994),
applied, the State waived its argument when it “retreated from requesting a ruling in its favor.” At
the hearing, the State did again raise the issue, but it “defer[red]” to the court as to whether it would
decide the motion on that basis, recognizing the pitfalls of “pav[ing] the way for a subsequent
postconviction motion alleging ineffective assistance of postconviction counsel.” The court,
thereafter, chose not to pursue the matter. Under the circumstances, the State did not waive the
argument.

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No. 2021AP943-CR

the procedural history of this case, we conclude that McReynolds’ subsequent
appeal of the denial of his postconviction motion is not barred.

II. Ineffective Assistance of Counsel

¶21 We next address McReynolds’ argument that his trial counsel
provided constitutionally ineffective assistance using the well-known, two-pronged
analysis provided in Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove
ineffective assistance of counsel, a defendant must show both that counsel’s
performance was deficient and that the defendant was prejudiced by counsel’s
deficient performance. State v. Sholar, 2018 WI 53, ¶32, 381 Wis. 2d 560, 912
N.W.2d 89. Under the first prong, “[c]ounsel’s conduct is constitutionally deficient
if it falls below an objective standard of reasonableness.” State v. Thiel, 2003 WI
111, ¶19, 264 Wis. 2d 571, 665 N.W.2d 305. However, “[j]udicial scrutiny of
counsel’s performance must be highly deferential.” Strickland, 466 U.S. at 689.
For the second prong, “[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. at 694. However, a defendant need not
prove the outcome would more likely than not be different in order to establish
prejudice in ineffective assistance cases. Sholar, 381 Wis. 2d 560, ¶44 (citing
Strickland, 466 U.S. at 693). If the defendant fails on one prong, we need not
examine the other prong. Id. at 697. “The ultimate determination of whether
counsel’s performance was deficient and prejudicial to the defense are questions of
law which this court reviews independently.” State v. Johnson, 153 Wis. 2d 121,
128, 449 N.W.2d 845 (1990).

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No. 2021AP943-CR

¶22 The postconviction court denied McReynolds’ second postconviction
motion without an evidentiary hearing. McReynolds now seeks a Machner hearing
on his ineffective assistance of counsel claim. A defendant, however, is not
automatically entitled to an evidentiary hearing on his or her postconviction motion.
State v. Bentley, 201 Wis. 2d 303, 308-11, 548 N.W.2d 50 (1996). The circuit court
is required to hold an evidentiary hearing only if the defendant alleges “sufficient
material facts that, if true, would entitle the defendant to relief.” State v. Allen,
2004 WI 106, ¶14, 274 Wis. 2d 568, 682 N.W.2d 433. Whether a defendant’s
motion “on its face” alleges sufficient material facts to entitle that defendant to relief
is a question of law that we review de novo. Id., ¶9. If, on the other hand, the
defendant’s 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,” the circuit court may either grant or deny a
hearing in its discretion. Id. We review this decision “under the deferential
erroneous exercise of discretion standard.” Id.

¶23 McReynolds argues that his trial counsel provided ineffective
assistance in two ways: (1) by failing to object to Ranallo’s testimony purportedly
vouching for the truthfulness of the informant in violation of Haseltine; and (2) by
failing to object to the confidential informant’s statement that McReynolds was
affiliated with the Vice Lord gang. For the reasons that follow, we conclude that
counsel did not provide ineffective assistance and that the postconviction court
properly exercised its discretion by denying his motion without an evidentiary
hearing.

¶24 McReynolds first claims that the State committed a Haseltine
violation by eliciting improper testimony from Ranallo—that he believed the
informant was telling the truth—and that counsel performed deficiently by failing

12
No. 2021AP943-CR

to object to that testimony. In Haseltine, we held that “[n]o witness, expert or
otherwise, should be permitted to give an opinion that another mentally and
physically competent witness is telling the truth.” Haseltine, 120 Wis. 2d at 96.
The purpose of this rule is to prevent a witness from usurping the jury’s role as a
“lie detector in the courtroom.” See State v. Pittman, 174 Wis. 2d 255, 268, 496
N.W.2d 74 (1993) (citation omitted); see also State v. Kleser, 2010 WI 88, ¶104,
328 Wis. 2d 42, 786 N.W.2d 144 (“The essence of the rule prohibiting vouching
testimony is that such testimony invades the province of the fact-finder as the sole
determiner of credibility.”). To determine whether a witness’s testimony violates
Haseltine, we examine the testimony’s purpose and effect. See Pittman, 174
Wis. 2d at 268. This is a question of law that we review de novo. See State v. Davis,
199 Wis. 2d 513, 519, 545 N.W.2d 244 (Ct. App. 1996). Further, even if a
Haseltine violation occurred, it is only reversible error where the testimony “creates
too great a possibility that the jury abdicated its fact-finding role” in relation to the
witness or failed independently to find the defendant’s guilt. Haseltine, 120 Wis. 2d
at 96.

¶25 McReynolds identifies four instances during the trial where Ranallo
allegedly vouched for the informant’s credibility in violation of Haseltine. First,
when Ranallo testified about an oral statement the informant gave after the first
controlled drug buy, the State asked, “So do you believe this to be a truthful and
accurate statement?” Ranallo responded, “Yes, I do.” In the second instance, which
occurred immediately after the first, the State asked Ranallo what he believed
happened on the day of the first controlled drug buy, and Ranallo stated that he
agreed with the informant’s statement that McReynolds had sold the informant
cocaine. The State then asked, “And do you have any reason to believe that [the
informant] was in any way untruthful with respect to the information he provided to

13
No. 2021AP943-CR

you?” Ranallo responded, “No.” Third, when discussing the second controlled buy
and the altercation that occurred between McReynolds and the informant prior to
that buy, the State asked Ranallo, “[W]ere you concerned about [the informant’s]
credibility at that point?” Ranallo said, “No,” and when asked, “Why not?” Ranallo
responded,

[The informant] had explained that, you know, there was
a physical altercation, and I—and [he] had said that he was
injured during that. I met up with him, and he showed me
the injuries that he had sustained, so I was able to corroborate
that portion of it. And I was not given any information to
lead me to believe that he was not being truthful.

¶26 The fourth, and final, instance involved the informant’s oral statement
after the second controlled drug buy. Similar to the first instance, the State asked
Ranallo whether the informant’s statement was “consistent with what [he] observed
or perceived during [his] observations of the controlled buy,” and Ranallo
responded, “Yes.” The State then asked, “Do you have any reason to believe that
[the informant] was in any way untruthful about his observations that day?” Ranallo
responded, “No.”

¶27 McReynolds argues that “[t]he first of the four instances of vouching
was the most problematic,” and he admits that “Ranallo’s other statements were
arguably focused on external indicators of untruthfulness.” He claims, however,
that “those [other] statements served to bolster [Ranallo’s] first statement, which
was clearly vouching.” He argues that his trial counsel performed deficiently as he
should have objected to all four vouching statements and moved to strike them.

¶28 According to McReynolds, these facts are “akin to” the facts
considered by this court in State v. Patterson, 2009 WI App 161, 321 Wis. 2d 752,
776 N.W.2d 602. There, the State asked a police investigator, “Do you believe [a

14
No. 2021AP943-CR

witness the investigator interviewed] was being truthful when she gave [certain]
information to you …?” Id., ¶36 (alterations in original). The investigator then
answered, “I believe she was being truthful.” Id. We concluded that “[i]t does not
appear that this exchange was offered for any purpose other than bolstering the
credibility of the other witness.” Id. Nonetheless, while we “assume[d] that the
exchange ran afoul of Haseltine,” we held that the single instance of vouching, in
the context of a seven-day trial, did not infect the trial with unfairness resulting in a
denial of due process. Patterson, 321 Wis. 2d 752, ¶37. McReynolds argues that
the exchange here was offered only to bolster the credibility of the informant, and,
unlike in Patterson, it was not an isolated incident.

¶29 The State counters that when considered within the context of the
questions at trial, “[n]one of the four allegedly improper statements here
impermissibly interfered with the province of the jury to determine the credibility
of any witness at trial,” and the statements were not offered to bolster the
informant’s credibility.11 The State relies upon State v. Smith, 170 Wis. 2d 701,
490 N.W.2d 40 (Ct. App. 1992), and State v. Snider, 2003 WI App 172, 266 Wis. 2d
830, 668 N.W.2d 784.

¶30 In Smith, a police detective testified at trial that the defendant’s
accomplice initially denied involvement in the crime but that the accomplice later
changed his story to what the detective perceived to be the truth. Smith, 170 Wis. 2d
at 719. We concluded that neither the purpose nor the effect of the testimony was

11
The State argues that State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App.
1984), specifically “prohibits a witness from testifying that another witness is telling the truth at
trial.” State v. Snider, 2003 WI App 172, ¶27, 266 Wis. 2d 830, 668 N.W.2d 784 (emphasis
added). McReynolds counters that pursuant to State v. Kleser, 2010 WI 88, ¶104, 328 Wis. 2d 42,
786 N.W.2d 144, the Haseltine rule also applies “where an expert vouches for an out-of-court
declarant.” As we conclude no Haseltine violation occurred here, we need not address this issue.

15
No. 2021AP943-CR

to attest to the accomplice’s truthfulness, as the testimony “was not an attempt to
bolster [the accomplice’s] credibility, but was simply an explanation of the course
of events during the interrogation.” Id. at 718-19. We further explained that we did
not believe that there was a risk that the jury used the detective’s testimony to assess
the accomplice’s truthfulness, as the jury was instructed “that it was the sole judge
of the witnesses’ credibility at the trial” and we presume that the jury follows those
instructions. Id. at 719 (citing State v. Truax, 151 Wis. 2d 354, 362, 444 N.W.2d
432 (Ct. App. 1989)).

¶31 In Snider, a child sexual abuse case, defense counsel repeatedly
elicited testimony that the detective believed the victim rather than Snider in order
to show that the detective was biased. Snider, 266 Wis. 2d 830, ¶¶25-26. Citing
the reasoning in Smith, we concluded that

the detective similarly testified to what he believed at the
time he was conducting the investigation, not whether Snider
or the victim was telling the truth at trial. The detective, in
response to questions on cross-examination, recounted how
he conducted the interrogation and his thought processes at
that time. As in Smith, his testimony did not violate the
Haseltine rule.

Snider, 266 Wis. 2d 830, ¶27.

¶32 We conclude that, like in Snider and Smith, Ranallo’s statements
were not offered to bolster the informant’s credibility; instead, they were offered to
explain the course of events during the interrogation. As such, they did not
constitute improper vouching testimony, and there was no Haseltine violation.

¶33 The first, second, and fourth instances of alleged vouching were
elicited because law enforcement officers were unable to directly observe the
controlled drug buys. The State offered Ranallo’s testimony to establish whether

16
No. 2021AP943-CR

the informant’s oral statements given to law enforcement immediately after the drug
buys were consistent with Ranallo’s observations, including those from the videos
and audio recordings. Ranallo’s opinions about the truthfulness of the informant’s
statements were relevant to explain both the reason law enforcement relied upon the
informant’s information—given their inability to observe the exchanges—and why
they chose not to pursue any further investigation. Ranallo did not testify that the
informant told the truth at trial. Rather, similar to the testimony provided in Smith
and Snider, Ranallo testified he thought the information provided by the informant
at the time of the controlled buys was truthful, as it was supported by what he
observed and it helped explain why he conducted the investigation as he did.

¶34 The third statement referenced the altercation between McReynolds
and the informant and whether Ranallo was concerned about the informant’s
credibility “at that point.” Ranallo responded that he “was not given any
information to lead [him] to believe that [the informant] was not being truthful.” He
stated that the informant “showed me the injuries …, so I was able to corroborate
that portion of it.” The inquiry and response related to whether Ranallo could have
further confidence in what the informant told him about the altercation between
McReynolds and himself and whether the altercation would provide the informant
with a motive to participate in or lie about the second controlled buy. Ranallo’s
testimony regarding the informant’s truthfulness as to the altercation was offered to
explain why Ranallo continued in his investigation of McReynolds with the
assistance of the informant and why the second drug buy took place despite the
altercation.

¶35 In summary, the purpose and effect of Ranallo’s four statements at
trial were to explain what he believed at the time he was conducting the investigation
and why he proceeded with it. The statements were not offered to bolster the

17
No. 2021AP943-CR

informant’s credibility at trial. Further, the statements did not interfere with the
province of the jury to determine the credibility of the informant, who himself
testified extensively at trial.12 Thus, there was no Haseltine violation, and
McReynolds’ trial counsel was not deficient for failing to object to Ranallo’s
admissible testimony. See State v. Maday, 2017 WI 28, ¶55, 374 Wis. 2d 164, 892
N.W.2d 611 (“Counsel’s performance cannot be considered deficient for failing to
object to admissible evidence.”). As we find no deficient performance, we need not
reach the prejudice prong.

¶36 McReynolds next claims that his trial counsel performed deficiently
by failing to object to improper, prejudicial character evidence that McReynolds
was affiliated with the Vice Lord gang.13 Character evidence, meaning “[e]vidence
of a person’s character or a trait of the person’s character,” is inadmissible “for the
purpose of proving that the person acted in conformity therewith on a particular
occasion,” WIS. STAT. § 904.04(1), subject to certain exceptions not relevant here,
see § 904.04(1)(a)-(c), (2).

¶37 Twice during the trial, the State elicited testimony from the informant
regarding the individual identified as “KG.” The first time, the informant identified
KG as “one of” McReynolds’ “Vice Lord friends.” The second time, the informant
identified KG as McReynolds’ “Vice Lord brother.” McReynolds’ trial counsel did
not object in either instance.

12
We note also that, like in State v. Smith, 170 Wis. 2d 701, 719, 490 N.W.2d 40 (Ct. App.
1992), the jury in this case was instructed that the jury is the sole judge of the witnesses’ credibility.
13
We note that in State v. Burton, 2007 WI App 237, 306 Wis. 2d 403, 743 N.W.2d 152,
we referred to the gang as the “Vice Lords gang” or the “Vice Lords.” However, in this opinion,
we will refer to the gang as the Vice Lord gang because that is how it is referenced in the record
before us.

18
No. 2021AP943-CR

¶38 McReynolds argues that the references to the Vice Lord gang
constituted character evidence. Citing State v. Burton, 2007 WI App 237, 306
Wis. 2d 403, 743 N.W.2d 152, McReynolds asserts that “[t]he Vice Lord gang is
notorious for drugs and violence.” Thus, he argues, “[t]estimony linking Mr.
McReynolds to a gang implied that Mr. McReynolds had a propensity for crime.
Not only was this character evidence, there was no foundation for the accusation.”

¶39 At the hearing on the postconviction motion, the court agreed that the
evidence was improper:

I absolutely agree there should have been witness prep to
indicate that sort of statement should not come in. I
absolutely agree that once you get that answer, the Vice Lord
friend, then you have to do what you can to stay away from
a repeat of that answer.

You know, I don’t know all the gang names. I seriously
doubt that the average juror from Eau Claire County knows
all the gang names.

But that being said, saying somebody’s a Vice Lord
brother, I think most people if they’re thinking about it
would have an idea as to what that’s referring to. So clearly
those statements are problematic as defense stated.

¶40 Nevertheless, despite noting that the references to the Vice Lord gang
was “an absolutely not proper reference,” the postconviction court acknowledged
that “it is a very minor reference.” The court stated that it could have defense
counsel testify as to whether the failure to object was part of his trial strategy,
suggesting that “object[ing] and bring[ing] great attention” to the reference is
“probably best … avoid[ed].” Ultimately, however, the court found that the Vice
Lord references “in the general context of the trial” were not “sufficient to
undermine the legitimacy of the conviction.”

19
No. 2021AP943-CR

¶41 For the purpose of this appeal, and given the postconviction court’s
finding that the evidence was improper, we will assume without deciding that
defense counsel’s failure to object to the Vice Lord references constituted deficient
performance. We conclude, however, that McReynolds suffered no resulting
prejudice.

¶42 As to the prejudicial effect of counsel’s failure to object to the Vice
Lord references, McReynolds argues only that “[t]he State improperly bolstered its
case by disparaging Mr. McReynolds’ character.” His arguments on this issue are
undeveloped, spanning only one short paragraph. Further, as the postconviction
court found, and we agree, the informant’s references to the Vice Lord gang during
the trial were both “quick” and “minor reference[s],” and the topic was not
highlighted during questioning. While we acknowledge, as McReynolds suggests,
that this case was largely based on witness credibility, we disagree that the State’s
case could be categorized as weak. The jury heard consistent testimony from the
confidential informant, Ranallo, and other officers, and that testimony was also
consistent with the video and audio evidence presented.

¶43 Given all the evidence presented at trial, we cannot conclude, and
McReynolds has failed to establish, that there is a reasonable probability that the
result of the trial would have been different absent the Vice Lord references. See
Sholar, 381 Wis. 2d 560, ¶¶44, 46. Because McReynolds must satisfy both prongs
to show ineffective assistance of counsel and he has failed to establish prejudice,
the postconviction court did not err when it denied his postconviction motion
without a Machner hearing.

III. WISCONSIN STAT. § 973.017(10m)(b)

20
No. 2021AP943-CR

¶44 McReynolds’ final arguments relate to the sentencing court’s
invocation of WIS. STAT. § 973.017(10m)(b) to issue a written explanation of the
rationale for the sentences it previously imposed at the sentencing hearing.
McReynolds argues that this procedure is unconstitutional as applied to him because
it violated his constitutional rights to a public trial and to be present at sentencing.

¶45 The State first counters that McReynolds forfeited these arguments.
The State further argues that “McReynolds conflates two distinct events: actual
imposition of the sentence and the explanation for the sentence…. [H]e has a right
to be physically present for the former but not the latter.” For the reasons that
follow, we conclude that the State correctly argues that McReynolds forfeited his
public trial claim and that he fails to meet his burden to prove beyond a reasonable
doubt that the sentencing court’s use of § 973.017(10m)(b) violated his
constitutional right to be present at sentencing.

¶46 We first address the State’s forfeiture claims. McReynolds did not
object at the sentencing hearing to the court’s use of WIS. STAT. § 973.017(10m)(b).
Accordingly, the State argues that by failing to object, McReynolds has forfeited his
constitutional claims. We review de novo whether a defendant adequately
preserved his or her right to appellate review of a particular claim. State v. Coffee,
2020 WI 1, ¶17, 389 Wis. 2d 627, 937 N.W.2d 579.

¶47 As to the right to a public trial,14 the State argues that McReynolds
forfeited this argument under State v. Pinno, 2014 WI 74, 356 Wis. 2d 106, 850
N.W.2d 207. In Pinno, our supreme court determined that the right to a public trial

14
The Sixth Amendment to the United States Constitution guarantees criminal defendants
the right to a public trial. U.S. CONST. amend. VI; State v. Ndina, 2009 WI 21, ¶40, 315 Wis. 2d
653, 761 N.W.2d 612.

21
No. 2021AP943-CR

is subject to forfeiture; thus, “the Sixth Amendment right to a public trial may be
forfeited when a defendant knows that the judge has ordered the public to leave the
courtroom but does not object.” Id., ¶¶57, 63.

¶48 McReynolds attempts to sidestep Pinno by arguing that Coffee and
State v. Grady, 2007 WI 81, 302 Wis. 2d 80, 734 N.W.2d 364, require a different
result: namely, that McReynolds was not required to contemporaneously object at
sentencing. Instead, McReynolds contends that his postconviction motion was a
timely means of raising the sentencing error.

¶49 In Coffee, the defendant argued that the circuit court violated his due
process rights by relying on inaccurate information at sentencing, but he failed to
object to the inaccurate information. Coffee, 389 Wis. 2d 627, ¶1. Our supreme
court concluded that “the forfeiture rule does not apply to previously unknown,
inaccurate information first raised by the State at sentencing. Rather, a
postconviction motion is also a timely manner in which to bring that claim.” Id., ¶3.
In Grady, the defendant argued that the circuit court erroneously exercised its
discretion by failing to consider the applicable sentencing guidelines for the crime
considered at sentencing. Grady, 302 Wis. 2d 80, ¶¶10-11. In a footnote, our
supreme court rejected the State’s argument that the defendant “waived the issue[],”
explaining that “[f]iling a postconviction motion is a timely means of raising an
alleged error by the circuit court during sentencing.” Id., ¶14 n.4.

¶50 We disagree that this case is controlled by Coffee and Grady. This is
not a case where McReynolds sought to challenge the basis for the sentencing
court’s exercise of discretion as to its decision. McReynolds takes no issue with the
reasons the court relied upon to issue its written sentencing explanation, nor does

22
No. 2021AP943-CR

he argue that the court erroneously exercised its discretion in imposing his sentences
or explaining its rationale for them.

¶51 Instead, McReynolds argues that the process the sentencing court used
to explain its sentencing rationale violated his rights. McReynolds was made aware
of the court’s intention to utilize WIS. STAT. § 973.017(10m)(b), and the court
explained its reasons for doing so on the record and in McReynolds’ presence.
McReynolds could and should have raised his objection to the court issuing a written
explanation of its sentencing rationale at that time. Had he done so, the court could
have timely considered the issue, addressed any legal concerns with following the
statute, and properly preserved the issue for appeal. See Schonscheck v. Paccar,
Inc., 2003 WI App 79, ¶11, 261 Wis. 2d 769, 661 N.W.2d 476 (“A fundamental
appellate precept is that we ‘will not … blindside [circuit] courts with reversals
based on theories which did not originate in their forum.’” (citation omitted)). We
agree with the State that, pursuant to Pinno, McReynolds has forfeited his argument
that his right to a public trial was violated.15

¶52 The State also argues that McReynolds forfeited his argument
regarding the violation of his constitutional right to be present at sentencing.
McReynolds counters that, pursuant to State v. Soto, 2012 WI 93, 343 Wis. 2d 43,
817 N.W.2d 848, “[t]he right to be present cannot be forfeited by inaction.” In Soto,
the defendant and his attorney appeared for his scheduled plea hearing via
videoconferencing. Id., ¶6. Although Soto “agreed to the use of videoconferencing

15
To the extent that review may be available under an ineffective assistance of counsel
framework, see State v. Pinno, 2014 WI 74, ¶¶81-86, 356 Wis. 2d 106, 850 N.W.2d 207, we note
that McReynolds does not advance that argument.

23
No. 2021AP943-CR

for the hearing,” he later sought postconviction relief, arguing that the
videoconferencing violated due process and his statutory right to be present under
WIS. STAT. § 971.04(1)(g).16 Soto, 343 Wis. 2d 43, ¶¶7, 11. Our supreme court
concluded that

a defendant’s right to be present in the same courtroom as
the presiding judge at the proceedings listed in
[§] 971.04(1)(g) is particularly important to the actual or
perceived fairness of the criminal proceedings. Therefore, if
this right is to be relinquished, it must be done by waiver, the
“intentional relinquishment of a known right.”

Soto, 343 Wis. 2d 43, ¶40 (citation omitted).

¶53 The State agrees that under Soto, a defendant’s statutory right to be
present at “the imposition of sentence,” pursuant to WIS. STAT. § 971.04(1)(g),
cannot be forfeited; it must be waived. The State argues, however, that “assuming
Soto applies equally to the constitutional right to presence at sentencing, Soto’s
waiver rule extends only as far as the imposition of a sentence.” It is the State’s
position that a circuit court’s sentencing decision and its explanation of its reasons
for the sentence imposed are “plainly distinct events.” According to the State,
McReynolds was present for “the imposition of sentence”; therefore, “Soto’s waiver

16
WISCONSIN STAT. § 971.04(1) provides:

(1) Except as provided in subs. (2) and (3), the defendant shall be
present:

(a) At the arraignment;
(b) At trial;
(c) During voir dire of the trial jury;
(d) At any evidentiary hearing;
(e) At any view by the jury;
(f) When the jury returns its verdict;
(g) At the pronouncement of judgment and the imposition of
sentence;
(h) At any other proceeding when ordered by the court.

24
No. 2021AP943-CR

rule is inapposite” and McReynolds “forfeited any argument that WIS. STAT.
§ 973.017(10m)(b) was applied in violation of his constitutional right.”

¶54 Given the importance of the right at issue, we decline to apply the
forfeiture rule to McReynolds’ argument that his right to be present at sentencing
was violated through the sentencing court’s application of WIS. STAT.
§ 973.017(10m)(b), and we will address the claim on its merits. See State v.
Erickson, 227 Wis. 2d 758, 766, 596 N.W.2d 749 (1999) (“[T]he [forfeiture] rule
is one of judicial administration and ... appellate courts have authority to ignore the
[forfeiture].”).

¶55 As noted above, this case requires us to interpret WIS. STAT.
§ 973.017(10m). The statute provides:

(a) The court shall state the reasons for its sentencing
decision and, except as provided in par. (b), shall do so in
open court and on the record.

(b) If the court determines that it is not in the interest of the
defendant for it to state the reasons for its sentencing
decision in the defendant’s presence, the court shall state the
reasons for its sentencing decision in writing and include the
written statement in the record.

Sec. 973.017(10m). Under the statute, “sentencing decision” is defined as

a decision as to whether to impose a bifurcated sentence
under [WIS. STAT. §] 973.01 or place a person on probation
and a decision as to the length of a bifurcated sentence,
including the length of each component of the bifurcated
sentence, the amount of a fine, and the length of a term of
probation.

Sec. 973.017(1).

¶56 The issue of whether a circuit court’s use of WIS. STAT.
§ 973.017(10m) to state the reasons for its sentencing decision in writing, rather

25
No. 2021AP943-CR

than orally in court at the time of the sentencing hearing, violates a defendant’s
constitutional right to be present at sentencing is one of first impression in this state.
“Statutory interpretation begins with the language of the statute.” State v. Mercado,
2021 WI 2, ¶43, 395 Wis. 2d 296, 953 N.W.2d 337 (citing State ex rel. Kalal v.
Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110).
“If the meaning of the statute is plain, we ordinarily stop the inquiry.” Kalal, 271
Wis. 2d 633, ¶45 (citation omitted). “Statutory language is given its common,
ordinary, and accepted meaning,” but “[c]ontext is important to meaning. So, too,
is the structure of the statute in which the operative language appears.” Id., ¶¶45-
46. Thus, “statutory language is interpreted in the context in which it is used; not
in isolation but as part of a whole; in relation to the language of surrounding or
closely-related statutes; and reasonably, to avoid absurd or unreasonable results.”
Id., ¶46. Statutory interpretation presents a question of law we review de novo.
Grady, 302 Wis. 2d 80, ¶14.

¶57 This appeal also requires us to consider whether WIS. STAT.
§ 973.017(10m)(b) is constitutional as applied to McReynolds. “The
constitutionality of a statute is a question of law that we review de novo.” State v.
Wood, 2010 WI 17, ¶15, 323 Wis. 2d 321, 780 N.W.2d 63. Our review begins with
the presumption that a statute is constitutional; the party making the as-applied
challenge carries the burden of proving that the statute “is unconstitutional beyond
a reasonable doubt.” Id. “Under [an as-applied] challenge, the challenger must
show that his or her constitutional rights were actually violated.” Id., ¶13. We
evaluate as-applied challenges “considering the facts of the particular case in front
of us, ‘not hypothetical facts in other situations.’” Id. (citation omitted).

¶58 Here, McReynolds argues that WIS. STAT. § 973.017(10m)(b) is
unconstitutional as applied to him. He asserts that a defendant has a constitutional

26
No. 2021AP943-CR

due process right to be present at sentencing, as it is a critical proceeding. See
Kentucky v. Stincer, 482 U.S. 730, 745 (1987) (“[A] defendant is guaranteed the
right to be present at any stage of the criminal proceeding that is critical to its
outcome if his [or her] presence would contribute to the fairness of the procedure.”).
“Wisconsin recognizes and protects three due process rights of a defendant at
sentencing.” State v. Perez, 170 Wis. 2d 130, 138, 487 N.W.2d 630 (Ct. App.
1992). “First, the defendant has a right to be present at the sentencing and to be
afforded the right of allocution.[17] Second, the defendant has the right to be
represented by counsel. Finally, the defendant has the right to be sentenced on the
basis of true and correct information.” Id.

¶59 McReynolds claims that the sentencing rationale is “intrinsic to the
pronouncement of the sentence,” and, thus, he was denied his right to be present at
sentencing when the sentencing court filed its “Written Reasons for Sentencing
Decision.” Given that a defendant has a right to be present at sentencing,
McReynolds argues, WIS. STAT. § 973.017(10m)(b) may be used only where the
defendant waives his or her right to be present.18 We disagree and conclude that
although a defendant has a statutory and constitutional right to be present when a
sentence is imposed, McReynolds has failed to prove beyond a reasonable doubt
that the court’s use of § 973.017(10m)(b), without his waiver, violated his right to
be present at sentencing.

17
But see State v. Greve, 2004 WI 69, ¶31, 272 Wis. 2d 444, 681 N.W.2d 479 (clarifying
prior decisions relying on a federal constitutional right of allocution and “withdrawing the language
that implies there is a due process right of allocution under the federal constitution, in all
circumstances”).
18
We note that McReynolds does not allege a facial constitutional challenge to WIS. STAT.
§ 973.017(10m)(b), as he concedes there would be no constitutional or statutory violation if a
defendant waived his or her right to be present when the circuit court stated the rationale for the
sentence imposed.

27
No. 2021AP943-CR

¶60 It is clear from the plain language of WIS. STAT. § 973.017(10m) that
a circuit court’s “sentencing decision” and the pronouncement of “the reasons for
its sentencing decision” are distinct events. As the State notes, “sentencing” is not
defined under § 973.017. Rather, WIS. STAT. RULE 809.30(1)(f) defines
“sentencing” as “the imposition of a sentence, a fine, or probation in a criminal
case.” See also Sentencing, BLACK’S LAW DICTIONARY (11th ed. 2019) (“The
judicial determination of the penalty for a crime.”). In accordance with those
definitions, a “sentencing decision” under § 973.017(10m) is properly defined as “a
decision as to whether to impose a bifurcated sentence … or place a person on
probation and a decision as to the length of a bifurcated sentence,” which includes
the length of the initial incarceration and extended supervision, the amount of a fine,
and the length of probation. Sec. 973.017(1) (emphasis added). Neither definition
of sentencing includes a court’s statement of the reasons for the imposition of a
sentence. Instead, the language of § 973.017(10m) clearly articulates the
legislature’s intent to separate the “sentencing decision” from the “reasons for [the
court’s] sentencing decision.” Under the statute, the reasons for the sentencing
decision must (“shall”) be stated “in open court and on the record,” except “[i]f the
court determines that it is not in the interest of the defendant for it to state the reasons
for its sentencing decision in the defendant’s presence.” Sec. 973.017(10m)(a)-(b).
Accordingly, we agree with the State that the sentencing decision, which includes
the imposition of sentence, and the pronouncement of the reasons for the sentencing
decision are distinct events under the statute.

¶61 McReynolds urges us to reject this distinction. He argues that “[t]he
sentencing rationale is intrinsic to the pronouncement of sentence. If a court were
to simply announce numerical figures, the sentence would be summarily vacated on

28
No. 2021AP943-CR

appeal.” Although we agree with McReynolds’ basic premise, as far as it goes, it
does not follow that the statute violates his constitutional rights.

¶62 McReynolds correctly argues that the sentencing court must detail its
reasons for selecting the particular sentence imposed. See State v. Gallion, 2004
WI 42, ¶¶39, 41-42, 45, 270 Wis. 2d 535, 678 N.W.2d 197.

In all Anglo-American jurisprudence a principal
obligation of the judge is to explain the reasons for his
actions. His decisions will not be understood by the people
and cannot be reviewed by the appellate courts unless the
reasons for decisions can be examined. It is thus apparent
that requisite to a prima facie valid sentence is a statement
by the trial judge detailing his reasons for selecting the
particular sentence imposed.

McCleary v. State, 49 Wis. 2d 263, 280-81, 182 N.W.2d 512 (1971). In Gallion,
our supreme court explained that “[t]he legislature well recognized that explaining
the reasons for the particular sentence should not be optional for the circuit court
under truth-in-sentencing. It codified the requirement adopted in McCleary by
enacting [WIS. STAT. §] 973.017(10m) (2001-02).”

¶63 WISCONSIN STAT. § 973.017(10m), however, in no way dispenses
with the requirement that the circuit court explain its reasons for its sentencing
decision on the record. It merely provides an alternative method where, in its
discretion, “the court determines that it is not in the interest of the defendant for it
to state the reasons” in the defendant’s presence. Sec. 973.017(10m)(b). The
sentencing rationale must still be provided under the statute, but the court may do
so in writing and include the written statement in the record. This procedure allows
for public and appellate review at least equivalent to that available through an oral
pronouncement.

29
No. 2021AP943-CR

¶64 To the extent McReynolds argues that the dichotomy between the
sentencing decision and the reasons for the sentence identified by WIS. STAT.
§ 973.017(1) and (10m) violates his constitutional right to be present at sentencing,
he has presented no legal authority for such a claim. In other words, he has provided
no legal support for his argument that his constitutional due process right to be
present at sentencing extends to the court’s explanation of its sentencing rationale.
In reply, McReynolds advances a conclusory argument, citing Soto, 343 Wis. 2d 43,
¶40, that “[a] defendant’s right to be present during sentencing is ‘particularly
important to the actual or perceived fairness of the criminal proceedings’”; thus, he
contends, “[t]o ensure that sentencing is fair and receives the solemnity it deserves,
the defendant has a right to be in the presence of the judge when the basis for the
sentence is given.”19 We are unconvinced.

¶65 McReynolds has not argued how or why his presence during the
explanation of the sentencing decision “would contribute to the fairness of the
procedure.” See Stincer, 482 U.S. at 745. While a defendant has a due process right
to be “present at the sentencing,” see Perez, 170 Wis. 2d at 138, McReynolds was
provided with the three due process rights identified in Perez during the sentencing
hearing. It does not necessarily follow that due process required that McReynolds
be present when the sentencing court provided its reasons for its sentencing

19
McReynolds also notes that our supreme court explained in Soto that “[r]equiring that
the defendant be present in the courtroom is guided also by the belief that a courtroom is a setting
epitomizing and guaranteeing ‘calmness and solemnity,’ so that a defendant may recognize that he
[or she] has had access to the judicial process in a criminal proceeding.” See Soto, 343 Wis. 2d 43,
¶23 (citation omitted). We disagree that the WIS. STAT. § 973.017(10m)(b) procedure as utilized
in this case undermined this purpose. The sentencing court explained its reasons for invoking the
statute on the record, noting that the court was providing a written explanation of its sentencing
decision “as a courtesy” to McReynolds because it did not think that McReynolds would listen well
to its rationale and would “consider it demeaning and insulting.” Given McReynolds past behavior
in court, this approach was a reasonable way to guarantee “calmness and solemnity” while still
allowing McReynolds the opportunity for access to the judicial process. See Soto, 343 Wis. 2d 43,
¶23.

30
No. 2021AP943-CR

decision, particularly where the court was required to make the written statement of
its sentencing rationale a part of the record and thus available to McReynolds. At
the point where the court provides the rationale for the sentence imposed, the
defendant has no further opportunity to contribute to the court’s decision.
McReynolds does not explain how his presence during the court’s statement of its
sentencing rationale would have affected the fairness of the procedure or the court’s
sentencing explanation in any way. Given our presumption that WIS. STAT.
§ 973.017(10m) is constitutional, McReynolds has failed to meet his burden to
overcome that presumption beyond a reasonable doubt. See Wood, 323 Wis. 2d
321, ¶15.

¶66 McReynolds also relies upon Soto to argue that given a defendant’s
right to be present at sentencing, WIS. STAT. § 973.017(10m)(b) may only be
utilized where the defendant affirmatively waives this right. See Soto, 343 Wis. 2d
43, ¶40. He faults the sentencing court for failing to enter into a colloquy with him
to determine whether he was “agreeable” to the procedure. Again, the holding in
Soto was based on the statutory right of a defendant to be present at “the
pronouncement of judgment and the imposition of sentence” under WIS. STAT.
§ 971.04(1)(g). As the State argues, “assuming Soto applies equally to the
constitutional right to presence at sentencing, Soto’s waiver rule extends only as far
as the imposition of a sentence,” not the “court’s announcement of the ‘reasons for
its sentencing decision.’” We agree.

¶67 The plain language of WIS. STAT. § 973.017(10m)(b) permits the
circuit court to make the discretionary determination “that it is not in the interest of
the defendant for it to state the reasons for its sentencing decision in the defendant’s
presence.” There is nothing in the language of the statute requiring the defendant
to assent to that determination. Further, Soto was based on the statutory right of a

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No. 2021AP943-CR

defendant to be present at “the pronouncement of judgment and the imposition of
sentence” under WIS. STAT. § 971.04(1)(g). As we determined above, the
sentencing decision—defined as “a decision as to whether to impose a bifurcated
sentence … or place a person on probation and a decision as to the length of a
bifurcated sentence”—is distinct under our statutes from the reason for the
sentencing decision. See § 973.017(1) (emphasis added); see also § 971.04(1)(g)
(“the defendant shall be present … [at] the imposition of sentence” (emphasis
added)). Soto is therefore distinguishable.

¶68 McReynolds was present when his sentences were imposed, and he
has not established that his due process right to be present at sentencing was
violated. At the sentencing hearing, the court stated on the record all the documents
it reviewed in anticipation of sentencing, including the presentence investigation
report (PSI) prepared for this case, the PSI in McReynolds’ previous case, and the
sentencing transcript in the previous case. The sentencing court then asked
McReynolds if there was anything in the PSI to which he objected, and he indicated
that there were “a couple of errors that I see in there, but it’s—it’s pointless, you
know.”20 The court reviewed McReynolds’ criminal history with the parties on the
record, noting that it would not consider his juvenile record, and addressed each

20
McReynolds refused to identify the errors. At sentencing, he attempted to have his
attorney removed and represent himself. When the sentencing court refused his request,
McReynolds stated:

I just want to proceed and get the time that you’re gonna give me
and just go for my appeals because, like I said, sir, this—this
gentleman, he’s a good lawyer, but he’s not representing my
interest, and that’s all I’d just like to state for the record, that, you
know, with all due respect to this Court, I’m not gonna be a jerk
like I usually be and loud and crazy. I’m just gonna state that, for
the record, from here on out I just choose not to say anything else
for the record because I’m not in agreement with this attorney
representing me at today’s proceedings, with all due respect.

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No. 2021AP943-CR

charge from his adult record, asking whether McReynolds disputed those charges.
The court also inquired about the sentencing credit to which McReynolds was
entitled. Both the State and McReynolds offered lengthy sentencing arguments, and
McReynolds was afforded the right of allocution.

¶69 In all, McReynolds was provided the right to be present and to
allocution, the right to counsel, and an adequate opportunity to review or rebut the
information the sentencing court relied on to impose its sentences. See Perez, 170
Wis. 2d at 138; State v. Loomis, 2016 WI 68, ¶53, 371 Wis. 2d 235, 881 N.W.2d
749 (recognizing that defendants must have an “opportunity to refute, supplement
or explain” information at sentencing). The court then reviewed the sentencing
factors it was required to consider as well as the factors it may consider, and, after
explaining its reasons for invoking WIS. STAT. § 973.017(10m)(b) on the record,21
it imposed McReynolds’ bifurcated sentences.

¶70 We are satisfied that McReynolds has failed to overcome the
presumption that WIS. STAT. § 973.017(10m)(b) is constitutional, and he has failed
to prove beyond a reasonable doubt that the court’s use of that sentencing procedure
violated his constitutional right to be present at sentencing.22

By the Court.—Judgment and order affirmed.

21
McReynolds does not challenge the sentencing court’s reasons for invoking WIS. STAT.
§ 973.017(10m)(b) on appeal. Thus, we will address those reasons no further.
22
We note that a sentencing court’s decision to utilize WIS. STAT. § 973.017(10m)(b) is
not a common practice, and our decision should not be read as endorsing the use of this procedure,
especially if a defendant affirmatively balks at the use of the procedure. We conclude, however,
that use of the statutory procedure did not violate McReynolds’ constitutional right to be present at
sentencing.

33