State v. Dennis D. Banks[Recommended for Publication]

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COURT OF APPEALS

DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
eo ee
November 5, 2026 oo
> A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See Wis. STAT. § 80810
and RULE 809.2.
Appeal No. 2025AP597-CR Cir. Ct. No. 202002473
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
STATE OF WISCONSIN,
PLAINIIFF-RESPONDENT,

V.
DENNIS D. BANKS,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Dane
County: JOHN D. HY LAND, Judge. Affirmed.

Before Graham, P,J., Kloppenburg, and Nashold, JJ.

{1 ©§KLOPPENBURG, J. After a jury convicted Dennis D. Banks of
one count of first-degree sexual assault of a child, the circuit court, applying the
persistent repeater enhancer under WIS. STAT. § 939.62(2m)(c) (2023-24),
sentenced Banks to life imprisonment without the possibility of release on

No. 2025AP597-CR
2
extended supervision.1 On appeal, Banks argues that the State did not at
sentencing meet its burden to provide sufficient evidence under WIS. STAT.
§ 973.12 to prove Banks’s persistent repeater status under § 939.62(2m)(b)2.,
when the State relied on the court taking judicial notice of Banks’s prior
conviction by observing an uncertified electronic copy of the judgment of
conviction.2 In the alternative, Banks argues that the court erred in dismissing
without an evidentiary hearing his postconviction motion alleging that trial
counsel provided constitutionally ineffective assistance in failing to move to
dismiss the persistent repeater enhancer in the criminal complaint and in failing to
object to the court taking judicial notice of the prior conviction at sentencing.
¶2 We conclude that the State met its burden to prove Banks’s
persistent repeater status by providing sufficient information to enable the circuit
court to take judicial notice of the electronic copy of the prior judgment of
conviction in the electronic record. We further conclude that the court properly
dismissed Banks’s ineffective assistance of counsel claims without a hearing
because the record conclusively shows that a motion to dismiss the inclusion of
the persistent repeater enhancer in the criminal complaint would lack merit and
that Banks was not prejudiced by trial counsel failing to object to the State’s mode
of proving his persistent repeater status. Accordingly, we affirm.
1 All references to the Wisconsin Statutes are to the 2023-24 version.
2 “Persistent repeater status” refers to having the requisite prior offense to be a persistent
repeater under the meaning of WIS. STAT. § 939.62(2m)(b)2. (“The actor is a persistent repeater”
if “[t]he actor has been convicted of a serious child sex offense on at least one occasion at any
time preceding the date of violation of the serious child sex offense for which [the actor]
presently is being sentenced under [WIS. STAT.] ch. 973, which conviction remains of record and
unreversed.”).

No. 2025AP597-CR
3
BACKGROUND
¶3 In August 2019, the State filed a criminal complaint charging Banks
with two counts of first-degree sexual assault of a child and one count of felony
bail jumping. On September 30, 2020, the State moved to dismiss the complaint
so that it could refile the complaint adding persistent repeater enhancers to the
sexual assault charges. On that same day, the circuit court granted the motion and
dismissed the complaint, and the State refiled the complaint with the same charges
along with persistent repeater enhancers on the sexual assault charges.3 Trial
counsel did not move to dismiss the persistent repeater enhancers in the refiled
criminal complaint.
¶4 The refiled criminal complaint alleged that Banks was a persistent
repeater because he had in 2003 been convicted of a serious child sex offense,
repeated sexual assault of the same child. Due to the persistent repeater
enhancers, Banks faced a mandatory sentence of life imprisonment without the
possibility of extended supervision if convicted of at least one of the counts of
first-degree sexual assault of a child. See WIS. STAT. § 939.62(2m)(c). A jury
found Banks guilty of one count of first-degree sexual assault of a child and bail
jumping.
¶5 The circuit court held a sentencing hearing on August 24, 2022. To
support the persistent repeater enhancer, the State asked the court to take judicial
3 For ease of reading, we refer to the criminal complaint that the State refiled in this case
as “the refiled criminal complaint.”
The refiled criminal complaint also included a repeater enhancer on the bail-jumping
charge, but Banks makes no appellate argument challenging that repeater enhancer. Accordingly,
we do not further address it in this opinion.

No. 2025AP597-CR
4
notice of Banks’s prior conviction and provided the case number and county for
the case in which the prior judgment of conviction had been entered. The court
then accessed that case in the electronic record maintained by the Dane County
Clerk of Court and took judicial notice of the prior conviction based on its own
observation of the uncertified electronic copy of the judgment of conviction in that
record. Trial counsel did not object. Applying the persistent repeater enhancer on
the one count of first-degree sexual assault of a child in this case, the court
sentenced Banks to life imprisonment without the possibility of release on
extended supervision.
¶6 Banks filed a postconviction motion for resentencing in which he
argued that: the circuit court erred in allowing the State to include the persistent
repeater enhancer in the refiled criminal complaint; the State at sentencing
provided insufficient evidence of Banks’s prior conviction; and trial counsel was
constitutionally ineffective for not moving to dismiss on the first issue and not
objecting on the second issue. The circuit court denied the motion in a written
order, without holding a Machner hearing.4
¶7 Banks appeals.
DISCUSSION
¶8 Banks challenges the application at sentencing of the persistent
repeater enhancer based on the circuit court taking judicial notice of the prior
4 State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979) (setting forth
requirement for an evidentiary hearing on a motion alleging ineffective assistance of counsel to
permit trial counsel to explain alleged errors).

No. 2025AP597-CR
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conviction.5 He frames this challenge as a sufficiency of the evidence claim based
on the State’s purported failure to meet its burden to prove the prior conviction.
He also claims that trial counsel provided constitutionally ineffective assistance in
failing to move to dismiss the enhancer in the refiled criminal complaint and in
failing to object to the court taking judicial notice of the prior conviction at
sentencing. We address Banks’s claims in turn.
I. Sufficiency of the Evidence to Prove Repeater Status
¶9 Banks argues that the circuit court erred when it determined that
Banks was a persistent repeater because the State failed to prove the prior
conviction.6 Banks contends that the State failed to meet its burden of proof
because the State did not provide the court with sufficient evidence for the court to
take judicial notice of Banks’s prior conviction. The State argues that it may—and
did—prove Banks’s prior conviction by means of judicial notice when the State
during sentencing provided the prior case’s county and case number, and the court
used that information to observe the uncertified electronic copy of the judgment of
conviction in the electronic record maintained by the Dane County Clerk of Court.
5 In his appellant’s brief, Banks also argues that the circuit court erred in allowing the
persistent repeater enhancer to be included in the refiled criminal complaint. However, in his
reply brief, Banks concedes that he has forfeited this argument, and that he may raise this asserted
error only through a claim that trial counsel was constitutionally ineffective in failing to dismiss
the enhancer. See State v. Carprue, 2004 WI 111, ¶47, 274 Wis. 2d 656, 683 N.W.2d 31
(explaining that, in the absence of an objection by trial counsel, appellate courts “follow ‘the
normal procedure in criminal cases,’ which ‘is to address waiver [or forfeiture] within the rubric
of the ineffective assistance of counsel’” (quoted source omitted)). We accept his concession on
this issue.
6 Under WIS. STAT. § 973.12(1), a defendant is subject to the persistent repeater
enhancer “[i]f the prior convictions are admitted by the defendant or proved by the state.” Here,
the parties do not dispute that Banks did not admit the prior conviction, and so the only question
is whether the State proved the prior conviction.

No. 2025AP597-CR
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¶10 As an initial matter, we reject the State’s assertion that Banks has
forfeited direct review of his challenge to the circuit court’s application of the
persistent repeater enhancer at sentencing based on taking judicial notice of the
prior conviction. As stated, in support of this challenge, Banks argues that the
State did not meet its burden to prove the prior conviction based on judicial notice,
and that, therefore, there was insufficient evidence of the prior conviction to
support the court’s application of the persistent repeater enhancer. Sufficiency of
the evidence challenges are not subject to the general forfeiture rule. State v.
Hayes, 2004 WI 80, ¶49, 273 Wis. 2d 1, 681 N.W.2d 203 (The accused can “raise
a challenge to the sufficiency of the evidence for the first time on appeal as a
matter of right.”). In asserting that Banks has forfeited this challenge, the State
makes only a conclusory reference to State v. Ndina, 2009 WI 21, ¶29, 315
Wis. 2d 653, 761 N.W.2d 612, and State v. Coffee, 2020 WI 1, ¶22, 389 Wis. 2d
627, 937 N.W.2d 579, without making any accompanying argument.
Accordingly, we proceed to address on its merits Banks’s sufficiency of the
evidence challenge directed at the court taking judicial notice of his prior
conviction.
¶11 Banks did not in the circuit court and does not on appeal argue that
the existence or date of Banks’s prior conviction narrated by the circuit court are
inaccurate. Banks’s challenge is solely to the State’s mode of proof. As we
explain, his challenge fails. Our analysis, as we explain in more detail in the
following sections, proceeds as follows. Under WIS. STAT. § 902.01, the circuit
court may take judicial notice of an uncertified electronic copy of a judgment of
conviction in another Dane County case, which it observes in an electronic record
maintained by the Dane County Clerk of Court. Under WIS. STAT. § 973.12(1), an
uncertified electronic copy of a judgment of conviction in an electronic record

No. 2025AP597-CR
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maintained by the clerk of court may prove the prior conviction. Here, the
electronic copy of the judgment of conviction observed by the court satisfied
§ 973.12(1) by containing the date and the crime of the prior conviction, and,
under § 902.01(4), the State provided the court with the necessary information for
the court to take judicial notice of the prior conviction, by providing the county
and case number of the prior case. Accordingly, we conclude that the State
provided sufficient evidence under § 973.12 to prove Banks’s repeater status under
WIS. STAT. § 939.62(2m)(b)2.
A. Standard of review and principles of statutory interpretation
¶12 To determine whether the State provided sufficient evidence to
support application of the persistent repeater enhancer, we interpret and apply
WIS. STAT. § 902.01 (judicial notice of adjudicative facts), and WIS. STAT.
§ 973.12(1) (evidence required to prove persistent repeater status) to the
undisputed facts of this case. The interpretation and application of statutes present
questions of law that we review independently. Phelps v. Physicians Ins. Co. of
Wis., 2009 WI 74, ¶36, 319 Wis. 2d 1, 768 N.W.2d 615.
¶13 When interpreting a statute, we begin with its language. State ex rel.
Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶¶44-45, 271 Wis. 2d 633, 681
N.W.2d 110. “Statutory language is given its common, ordinary, and accepted
meaning, except that technical or specially-defined words or phrases are given
their technical or special definitional meaning.” Id., ¶45. “Importantly,
‘ascertaining the plain meaning of a statute requires more than focusing on a
single sentence or portion thereof.’” Brey v. State Farm Mut. Auto. Ins. Co.,
2022 WI 7, ¶11, 400 Wis. 2d 417, 970 N.W.2d 1 (quoted source omitted).
Statutory interpretation involves “‘a full consideration of all relevant intrinsic

No. 2025AP597-CR
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sources’ including ‘the statutory text at issue, related statutes and phrases, a
statute’s place within the statutory structure, its stated or textually manifest
purpose, and statutory history.’” Brekke v. Midwest Med. Ins. Co., 2026 WI 29,
¶20, 421 Wis. 2d 381, 37 N.W.3d 515 (quoted source omitted). “Statutory
language is to be interpreted ‘reasonably, to avoid absurd or unreasonable
results.’” Id. (quoted source omitted). In addition, “when engaging in statutory
interpretation, we are assisted by prior decisions that have examined the relevant
statutes.” State v. Soto, 2012 WI 93, ¶20, 343 Wis. 2d 43, 817 N.W.2d 848.
B. Additional Background
¶14 The refiled criminal complaint charged Banks as a persistent
repeater under WIS. STAT. § 939.62(2m)(b)2. based on an alleged 2003 conviction
for a serious child sex offense.
¶15 At sentencing, to prove Banks’s qualifying prior conviction, the
State asked that the circuit court take judicial notice of Banks’s prior conviction.
The State provided the case number of the prior conviction and noted that the
conviction was a Dane County court record. The court then said:
The court is observing the court file in [the case
number provided by the State]. The Judgment of
Conviction entered at the time of conviction[,] January 9,
2003, contains a single count of repeated sexual assault of
the same child under [WIS. STAT. §] 948.025(1). It’s a
Class B felony.
I’m satisfied that the court record maintained
through the Dane County Clerk of Court’s office provides
the factual basis for the persistent repeater allegation within
the information.
¶16 In its written order denying Banks’s postconviction motion, the
circuit court explained: “This court did review the official record as maintained by

No. 2025AP597-CR
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the clerk of court and not a report …. [The court viewed] an electronic copy of the
judgment of conviction, which the Court viewed by accessing the document
through [the Wisconsin Circuit Court Access system] on the bench.”
¶17 We clarify how the circuit court accessed the electronic judgment of
conviction. The Consolidated Court Automation Programs (CCAP) is the
Wisconsin Court System’s information technology office and provides a variety of
critical services to the Wisconsin Court System. One such service, CCAP’s Case
Management system software, stores circuit court records electronically and—
with the implementation of mandatory electronic filing—those electronically
stored records now constitute the official record as maintained by the clerk of
court. See WIS. STAT. § 801.18(9)(a) (electronic documents constitute the official
record); § 801.18(9)(c) (“[T]he clerk of court shall maintain the official court
record only in electronic format for all cases[.]”); Consolidated Court Automation
Programs (CCAP), WISCONSIN COURT SYSTEM, https://www.wicourts.gov/
courts/offices/ccap.htm (last visited Oct. 12, 2026). Circuit courts may access
documents stored within CCAP’s Case Management system through CCAP’s
Wisconsin Circuit Court Access system (WCCA) software or through CCAP’s
“Judicial Dashboard” software.7
¶18 There are two versions of WCCA. Members of the public may use
the public-access internet WCCA website to view certain case information,
7 The Wisconsin Court Access System is sometimes referred to as “CCAP.” See, e.g.,
Kirk v. Credit Acceptance Corp., 2013 WI App 32, ¶5 n.1, 346 Wis. 2d 635, 829 N.W.2d 522.
CCAP’s Case Management system is also sometimes referred to as “CCAP.” For clarity, we use
“WCCA” to refer to the Wisconsin Court Access System, and we refer to CCAP’s Case
Management system by its full name. We use “CCAP” only to refer to the information
technology office that provides information technology services to the Wisconsin Court System.

No. 2025AP597-CR
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including docket entries, in accordance with Wisconsin’s open records law.8
Access to the public records of the Wisconsin circuit courts, WISCONSIN CIRCUIT
COURT ACCESS, https://wcca.wicourts.gov (last visited Oct. 12, 2026). The
documents identified in the docket entries cannot be viewed in the public-access
internet WCCA website. However, documents can be viewed via the courthouse
version of WCCA available to circuit courts and to the public on courthouse
computers.9
¶19 Like the courthouse version of WCCA, the Judicial Dashboard
software allows circuit court judges to electronically access circuit court records,
including documents, that are maintained in CCAP’s Case Management system.
See Consolidated Court Automation Programs (CCAP), WISCONSIN COURT
SYSTEM, https://www.wicourts.gov/courts/offices/ccap.htm (last visited Oct. 12,
2026); Judicial Dashboard, CCAP HELP CENTER (Apr. 20, 2023) (internal
training document). The Judicial Dashboard pulls from the same CCAP Case
Management system as the courthouse version of WCCA, but the Judicial
Dashboard is designed to give judges the ability to manage their caseloads.
8 “[WCCA] reflects information entered by [the clerk of court, register in probate, or the
juvenile court clerk in each county].” Kirk, 346 Wis. 2d 635, ¶5 n.1. See Access to the public
records of the Wisconsin circuit courts, WISCONSIN CIRCUIT COURT ACCESS,
https://wcca.wicourts.gov/ (last visited Oct. 12, 2026) (“The official recordkeepers for the circuit
courts are the clerk of [] court, the register in probate, and the juvenile court clerk in each county.
The information contained on the WCCA website has been entered by the official recordkeepers
in each county.”).
9 The courthouse version of WCCA is a separate web application with different software
from the public-access internet WCCA website. See Courthouse WCCA, CCAP HELP CENTER
(Aug. 26, 2026) (internal training document); Consolidated Court Automation Programs (CCAP),
WISCONSIN COURT SYSTEM, https://www.wicourts.gov/courts/offices/ccap.htm (last visited
Oct. 12, 2026). See also WIS. STAT. § 801.18(9)(e) (“The clerk of court shall make the public
portions of the electronic record available for viewing at the clerk of court’s office. The clerk of
court shall make nonpublic portions of the electronic record available for viewing by authorized
persons.”).

No. 2025AP597-CR
11
¶20 It is through the courthouse version of WCCA or the Judicial
Dashboard that a circuit court may access electronic versions of documents within
CCAP’s Case Management system. What this means is that here, when the circuit
court accessed the electronic record maintained by the Dane County Clerk of
Court, the court was able to, and did, observe not only the docket entries in the
prior case but also the documents identified in the docket entries—specifically, the
judgment of conviction in the prior case that the State identified by county and
case number.
C. Judicial notice of a judgment in another case in an electronic court record
under WIS. STAT. § 902.01
¶21 Banks argues that the circuit court erred in taking judicial notice of a
record in another case under WIS. STAT. § 902.01. Based on the facts here, we
more precisely frame the question as whether the court properly took judicial
notice of a judgment in another case in an electronic record. To answer that
question, we interpret and apply the language of § 902.01, which governs judicial
notice of adjudicative facts.
¶22 WISCONSIN STAT. § 902.01 applies only to adjudicative facts.
Pertinent here, “[a]djudicative facts are ‘simply the facts of the particular case,’
that is, ‘who did what, where, when, how, and with what motive or intent.’” State
v. Harvey, 2001 WI App 59, ¶7, 242 Wis. 2d 189, 625 N.W.2d 892, aff’d on other
grounds, 2002 WI 93, 254 Wis. 2d 442, 647 N.W.2d 189 (citation omitted). We
accept the State’s assertion, which Banks does not dispute, that a prior conviction
is an adjudicative fact.
¶23 WISCONSIN STAT. § 902.01(2) specifies that, to be judicially noticed,
an adjudicative fact “must be one not subject to reasonable dispute” in that it is

No. 2025AP597-CR
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either: “(a) A fact generally known within the territorial jurisdiction of the [circuit]
court”, or “(b) A fact capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned.” Here, we conclude
that a judgment in another case in a circuit court electronic record accessed
through the courthouse version of WCCA or through the Judicial Dashboard is
“[a] fact capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.” See § 902.01(2)(b). Accordingly, we
do not address subsection (a).
¶24 To understand whether a judgment in another case in an electronic
court record is “[a] fact capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned,” we examine the
recordkeeping practices of circuit courts. See WIS. STAT. § 902.01(2)(b). A clerk
of court is responsible for maintaining court records. WIS. STAT. § 753.06
(division of circuit courts); WIS. STAT. § 753.30 (establishing clerk of court’s
record-keeping duties); WIS. STAT. § 59.40(2) (describing a clerk of court’s
record-keeping duties). The clerk of court must “[f]ile and keep all papers
properly deposited with [the clerk] in every action or proceeding.” § 59.40(2)(a).
In addition, “[t]he papers may be … transferred to … electronic format … and the
originals may thereafter be destroyed.” § 59.40(2)(a).
¶25 The official record, as maintained by the clerk of court through
CCAP’s Case Management system, is electronic:
Given that the official court record is electronic, [CCAP’s]
[C]ase [M]anagement system is integral to the functioning
of Wisconsin’s circuit courts. This system creates court
notices, summonses, judgments of conviction, driving
suspensions, orders for financial disclosure and warrants—
all critical in legal proceedings. CCAP Case Management
began as the system where clerks recorded information

No. 2025AP597-CR
13
contained in the official record, or paper case file; today it
is the official record.
Consolidated Court Automation Programs (CCAP), WISCONSIN COURT SYSTEM,
https://www.wicourts.gov/courts/offices/ccap.htm. (last visited Oct. 12, 2026).
See WIS. STAT. § 801.18(9)(a) (electronic documents constitute the official
record); § 801.18(9)(b) (“The duties of the clerk of court under [WIS. STAT.
§§] 59.40, 851.72, and 851.73, and all other statutes, court rules, and procedures
may be fulfilled through proper management of electronic documents as provided
in this section.”).
¶26 Both versions of WCCA and the Judicial Dashboard interface with
CCAP’s Case Management system, such that the courthouse version of WCCA
and the Judicial Dashboard display the case information and documents contained
within the official record. See Access to the public record of the Wisconsin circuit
courts, WISCONSIN CIRCUIT COURT ACCESS, https://wcca.wicourts.gov (last
visited Oct. 26, 2026) (explaining that “[t]he information displayed [in WCCA] is
an exact copy of the case information entered into [CCAP’s] [C]ase
[M]anagement system by court staff in the counties where the case files are
located,” and “[t]he information contained on [WCCA] has been entered by the
official recordkeepers in each county”); Consolidated Court Automation Programs
(CCAP), WISCONSIN COURT SYSTEM, https://www.wicourts.gov/courts/offices/
ccap.htm. (last visited Oct. 12, 2026) (The Judicial Dashboard provides “access to
case information including the full court record[.]”).
¶27 Thus, the electronic judgment of conviction that the circuit court
here viewed at sentencing was “[a] fact capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be
questioned.” See WIS. STAT. § 902.01(2)(b). The circuit court can readily access

No. 2025AP597-CR
14
documents in other cases through the courthouse version of WCCA and the
Judicial Dashboard, and the accuracy of those documents cannot be reasonably
questioned because they are identical to documents contained in the official
record.
¶28 Banks asserts that no court may ever take judicial notice of a record
in another case. Banks does not directly address the statutory language of WIS.
STAT. § 902.01 and instead relies on cases that are uninstructive. For example,
Banks cites Perkins v. State, 61 Wis. 2d 341, 212 N.W.2d 141 (1973), but
acknowledges that the decision in that case concerns whether an appellate court—
not a circuit court—has authority to take judicial notice of its own record in
another case. Id. at 346-47 (holding that our supreme court could not take judicial
notice of a case not contained within the appellate record). In a separate case,
when addressing the judicial notice authority of a circuit court, the supreme court
expressly ruled that a circuit court may take judicial notice of its own records in
another case. See Johnson v. Mielke, 49 Wis. 2d 60, 75, 181 N.W.2d 503 (1970)
(“Generally, a [circuit] court may take judicial notice of its own records and
proceedings for all proper purposes. This is particularly true when the records are
part of an interrelated or connected case, especially where the issues, subject
matter, or parties are the same or largely the same.”).
¶29 Perkins is also uninstructive because it predates WIS. STAT.
§ 902.01 and the existence of readily accessible electronic court records, as do the
two cases cited in Perkins to which Banks also points. See Perkins, 61 Wis. 2d at
346-47 (citing State v. La Pean, 247 Wis. 302, 307, 19 N.W.2d 289 (1945), and

No. 2025AP597-CR
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State ex rel. Mengel v. Steber, 158 Wis. 309, 311, 149 N.W. 32 (1914)).10 Not
only do La Pean and Mengel predate § 902.01 and the existence of electronic
court records, but they also focus on the evidentiary basis of judicial notice; they
do not provide any reasoning relevant to determining whether an electronic court
record of documents in another case is a “kind[] of fact” contemplated by
§ 902.01(2). See La Pean, 247 Wis. at 307-08 (insufficient evidence offered of
former plea); Mengel, 158 Wis. at 311 (no evidence offered of prior judgment).
¶30 In sum on this issue, we conclude that a circuit court may take
judicial notice of a judgment in another case in the electronic record.11
10 The language in WIS. STAT. § 902.01(2) first took effect on January 1, 1974. S. CT.
ORDER, 59 Wis. 2d R1, 23-24 (1973) (“Kind of facts. A judicially noticed fact must be one not
subject to reasonable dispute in that it is either (a) generally known within the territorial
jurisdiction of the trial court or (b) capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned.”); see also 1999 Wis. Act 85
(renumbering and other minor changes to § 902.01(2)). This language provided a more precise
definition of the “verifiable certainty” standard identified in Fringer v. Venema, 26 Wis. 2d 366,
372-73, 132 N.W.2d 565, mandate amended, reh’g denied, 26 Wis. 2d 366, 133 N.W.2d 809
(1965). See S. CT. ORDER, 59 Wis. 2d R31 (1973). The language was also modeled after the
Uniform Rule governing judicial notice; however, the language of § 902.01(2) is not identical to
that Uniform Rule, which limited judicial notice of facts to those “so universally known that they
cannot reasonably be the subject of dispute” including those “capable of immediate and accurate
determination by resort to easily accessible sources of indisputable accuracy.” See S. CT. ORDER,
59 Wis. 2d R32 (1973).
11 It does not follow that a circuit court must always take judicial notice of a judgment in
another case in an electronic record when requested to do so by a party. For example, an
opposing party may make a timely request under WIS. STAT. § 902.01(5) that explains—or the
court may independently recognize—specific reasons that would make a document in an
electronic record one subject to reasonable dispute and, consequently, not a judicially noticeable
fact.

No. 2025AP597-CR
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D. Judicial notice of an uncertified electronic copy of a judgment of conviction as
proof of a prior conviction under WIS. STAT. § 973.12(1)
¶31 Banks argues that judicial notice of an uncertified copy of a
judgment of conviction is not sufficient to prove a prior conviction under WIS.
STAT. § 973.12(1).
¶32 WISCONSIN STAT. § 973.12(1) describes how a State may prove
repeater status under WIS. STAT. § 939.62. In relevant part, § 973.12(1) provides
that:
If the prior convictions are admitted by the defendant or
proved by the [S]tate, [the defendant] shall be subject to
sentence under … [§ ]939.62 unless [the defendant]
establishes that [the defendant] was pardoned on grounds of
innocence for any crime necessary to constitute [the
defendant] a repeater or a persistent repeater. An official
report of the F.B.I. or any other governmental agency of the
United States or of this or any other state shall be prima
facie evidence of any conviction or sentence therein
reported. Any sentence so reported shall be deemed prima
facie to have been fully served in actual confinement or to
have been served for such period of time as is shown or is
consistent with the report.
Accordingly, if the defendant does not admit a prior conviction, an official report
is one mode of proof the State may use to prove that the prior conviction exists.
¶33 However, an official report is not the only mode of proof that the
State may use to prove repeater status. State v. Saunders, 2002 WI 107, ¶26, 255
Wis. 2d 589, 649 N.W.2d 263. For example, “Wisconsin courts have recognized
that a certified copy of a judgment of conviction is excellent documentary
evidence for proving a prior conviction for purposes of [WIS. STAT.] § 973.12(1).”
Id., ¶24; see also State v. Flowers, 221 Wis. 2d 20, 32, 586 N.W.2d 175 (Ct. App.
1998) (“A certified judgment of conviction is the best evidence we can conceive
of to show a [circuit] court the existence of a prior felony conviction.”); State v.

No. 2025AP597-CR
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Farr, 119 Wis. 2d 651, 660, 350 N.W.2d 640 (1984) (“If the defendant stands
mute or denies the conviction, a certified copy of it can be presented to the
[circuit] court or the case jacket itself may be presented if it is from the same
county where sentencing is being done ….”); cf. State v. Koeppen, 195 Wis. 2d
117, 127, 536 N.W.2d 386 (Ct. App. 1995) (Koeppen I) (“[T]he prosecutor did not
submit a certified copy of the repeater convictions or an official report specific
enough to identify the defendant, the crimes and the date of the convictions.”).
¶34 In Saunders, our supreme court explained that WIS. STAT.
§ 973.12(1) “does not demand that prior convictions be proved through any
specific method” and that “the portion of § 973.12(1) that speaks of official
government reports constituting prima facie evidence of prior convictions supports
the inference that the [S]tate may use other forms of evidence—ones not entitled
to prima facie deference—to meet its proof requirements under the subsection.”
Saunders, 255 Wis. 2d 589, ¶26. The court has more specifically considered
whether modes of proof other than an official report or certified judgment of
conviction satisfy the requirements of § 973.12(1) in Saunders, 255 Wis. 2d 589,
and Farr, 119 Wis. 2d 651. We review the holdings in these two cases and then
explain why, taken together, they support our conclusion that a circuit court may
take judicial notice of an uncertified electronic copy of a judgment of conviction
as sufficient proof of the conviction to establish a defendant’s repeater status.
¶35 In Saunders, our supreme court concluded that an uncertified copy
of a judgment of conviction proved a defendant’s repeater status. Saunders, 255
Wis. 2d 589, ¶70. As the court explained, the fact “[t]hat a certified copy of a
judgment of conviction is the ‘best evidence’ does not connote that certified copies
are the only copies that may be used.” Id., ¶24. The court further explained that
the primary concern is “the accuracy of details about the conviction.” Id., ¶42.

No. 2025AP597-CR
18
The Saunders court noted that if the uncertified copy of the judgment of
conviction offered by the State contains inaccurate information, then the defendant
should object, which “would advise the court of the defendant’s concern and
permit the [S]tate to take remedial action.” Id., ¶29. However, the court
cautioned that a lack of objection to the mode of proof does not relieve the State of
its burden to prove the existence and date of the prior conviction beyond a
reasonable doubt. Id., ¶¶51, 63. Ultimately, the court concluded that the
uncertified copy of the judgment of conviction in that case contained the requisite
information from which the circuit court could conclude that the defendant was a
repeater. Id., ¶59.
¶36 In Farr, our supreme court concluded that a probation report which
did not provide the dates of the prior convictions was not an official report under
the meaning of WIS. STAT. § 973.12(1). Farr, 119 Wis. 2d at 657-58. Because
the probation report did not include the dates, the probation report “left to
conjecture” whether the convictions occurred within the time period required for
the enhanced penalty. Id. The Farr court explained that to be an official report,
“the report must contain relevant information regarding the issue of repeater status
and must specifically include the date of conviction for the previous offense.” Id.
at 658.
¶37 Based on this line of cases interpreting WIS. STAT. § 973.12(1), we
reject Banks’s argument that an uncertified electronic copy of a judgment of
conviction may never prove repeater status. What is essential to the mode of proof
is that it allows the circuit court to verify the existence and date of a prior
conviction; an electronic format does not necessarily preclude a court from doing
so. Rather, as the facts stated above show, the court here was able to verify the
existence and date of the prior conviction based on its observation of the

No. 2025AP597-CR
19
uncertified electronic copy of the judgment of conviction in the prior case,
sufficient to meet the proof requirements of § 973.12(1).
¶38 Banks argues to the contrary, citing State v. Bonds, 2006 WI 83, 292
Wis. 2d 344, 717 N.W.2d 133. In Bonds, our supreme court ruled that a “CCAP
report” generated by CCAP’s Case Management system and accessed through the
public-access internet WCCA website was not sufficient evidence to prove a prior
conviction.12 Id., ¶49. The court, referencing the 2006 version of the public-
access internet WCCA website that included a disclaimer about CCAP’s Case
Management system’s potential inaccuracy, concluded that:
[A] CCAP report, by its own terms, is of questionable
accuracy. It is not the official record of a criminal case, as
the clerks of court for each county are the officials
responsible for those records. WIS. STAT. § 59.40(2)(c).
And, a CCAP report is not a copy of the actual judgment of
conviction.… The disclaimer with which a CCAP report is
conditioned causes us to have reasonable doubt about its
accuracy.
Id., ¶46. The court further explained that “[CCAP’s Case Management system]
records are not like uncertified copies of judgments in that CCAP reports do not
purport to be identical to the court records, as photocopies do” and that “[w]ith a
CCAP report, the question is whether the report is an accurate narration of the
judgment of conviction of a particular defendant, for a particular crime, on a
particular date.” Id., ¶¶45, 49.
¶39 The holding in Bonds, 292 Wis. 2d 344, is specific to reports
obtained through the public-access internet WCCA website and is of limited value
12 The majority in State v. Bonds, 2006 WI 83, ¶6, 292 Wis. 2d 344, 717 N.W.2d 133,
uses “CCAP” to refer to CCAP’s Case Management system database and not, as we do here, to
the information technology office that services the Wisconsin Court System.

No. 2025AP597-CR
20
for at least the following reasons. As we have explained, there are two versions of
WCCA: the public-access internet WCCA website and the courthouse version of
WCCA. Documents are available on the courthouse version of WCCA, but not on
the public-access internet WCCA website. Here, the circuit court viewed an
electronic copy of the judgment of conviction through either the courthouse
version of WCCA or the Judicial Dashboard software, and not a report or other
summary about the judgment of conviction available through the public-access
internet WCCA website.13
¶40 The electronic copy of the judgment of conviction here is akin to the
uncertified judgment of conviction in Saunders. Like an uncertified judgment of
conviction, and unlike the documents in Farr and Bonds, the electronic copy of
Banks’s prior conviction in the electronic record maintained by the Dane County
Clerk of Courts office is an identical copy of—and not a summary of—the
conviction. While the electronic copy of the judgment of conviction is not
included in the appellate record, the hearing transcript contains a detailed narration
of the electronic judgment of conviction that the circuit court viewed.
Specifically, the transcript demonstrates that the court: (1) identified the case
number and name; (2) identified a file from that case as a judgment of conviction;
(3) identified the date of the judgment of conviction; (4) identified the exact count
and type of felony; and (5) explained that the record was maintained by the Dane
13 In addition, the description of technology provided throughout Bonds is outdated.
CCAP’s Case Management system, on which the information in WCCA depends, has evolved
since 2006; as explained above, CCAP’s Case Management system now constitutes the official
record. Accordingly, the disclaimer cited in State v. Bonds, 292 Wis. 2d 344, ¶¶7, 46, is no
longer present on the public-access internet WCCA website. See Access to the public records of
the Wisconsin circuit courts, WISCONSIN CIRCUIT COURT ACCESS, https://wcca.wicourts.gov/
(last visited Oct. 12, 2026).

No. 2025AP597-CR
21
County Clerk of Court. Accordingly, the court’s narration demonstrates that the
electronic copy of the judgment of conviction substantiates both the existence of
the conviction and the date of the conviction as required by WIS. STAT.
§ 973.12(1) and Farr. See Farr, 119 Wis. 2d at 658.
¶41 Banks also cites State v. Koeppen, 2000 WI App 121, 237 Wis. 2d
418, 614 N.W.2d 530 (Koeppen II). In Koeppen II, we concluded that the State
proved repeater status, even though the judgment of conviction was not entered
into the record, because the record showed “[t]he State offered certified judgments
of conviction as permitted by WIS. STAT. § 973.12(1), the court took judicial
notice of the judgments and Koeppen never objected to the documents or the
procedure.” Koeppen II, 237 Wis. 2d 418, ¶37. However, Koeppen II does not
stand for the rule, as asserted by Banks, that the State must provide a physical
copy of a prior conviction to prove a defendant’s repeater status. As we have
explained, under the case law cited above, an electronic copy of a judgment of
conviction may be an appropriate mode of proof to prove a defendant’s repeater
status under § 973.12(1); and here, that mode of proof satisfied § 973.12(1) based
on the circuit court’s detailed narration of the document’s contents that verified the
existence and date of the prior conviction.
¶42 Our supreme court has noted that, generally, the better practice is for
the State to provide a certified judgment of conviction. See Saunders, 255
Wis. 2d 589, ¶70. However, under the facts here, judicial notice of the uncertified
electronic copy of the judgment of conviction in the electronic record suffices to
prove the prior conviction under WIS. STAT. § 973.12(1).

No. 2025AP597-CR
22
E. Necessary information for judicial notice under WIS. STAT. § 902.01(4)
¶43 Under WIS. STAT. § 902.01(4), “[a] judge or court shall take judicial
notice if requested by a party and supplied with the necessary information.” The
statute does not define “necessary information” or specify what documentation, if
any, must be supplied to the circuit court. However, using the commonly
understood meanings of the words “necessary” and “information,” the statute
requires that here the State provide sufficient evidence to enable the court to locate
and to observe in the electronic record the copy of the judgment of conviction in
the prior case. See State v. Salinas, 2016 WI 44, ¶45, 369 Wis. 2d 9, 879 N.W.2d
609 (stating it is not necessary to provide a particular definition for “common
words with known meanings”).
¶44 As stated, the State provided the circuit court with the county and
case number of the case in which the prior judgment of conviction was entered.
The court used that information to locate and observe the electronic copy of the
judgment of conviction by accessing the electronic record maintained by the Dane
County Clerk of Court in the prior case. Due to the nature of a judgment of
conviction, its existence proves beyond a reasonable doubt that Banks was
convicted of a prior qualifying offense under WIS. STAT. § 973.12(1). Banks does
not dispute that the information provided by the State was sufficient to enable the
court to locate the prior judgment of conviction for purposes of taking judicial
notice. Rather, he argues that the uncertified electronic copy of the judgment of
conviction is not sufficient to prove the prior conviction under § 973.12(1), and we
have explained why that argument fails.

No. 2025AP597-CR
23
¶45 In sum on this issue, for the reasons stated, we reject Banks’s
challenge to the sufficiency of the evidence of his prior conviction directed at the
State’s mode of proof of that conviction.
III. Ineffective Assistance of Counsel
¶46 In the alternative, Banks argues that trial counsel was
constitutionally ineffective by failing to move to dismiss the persistent repeater
enhancer in the refiled criminal complaint, and failing to object to the circuit court
taking judicial notice of Banks’s prior conviction. We review whether Banks’s
postconviction motion alleges sufficient grounds to entitle Banks to a Machner
hearing. See State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433
(“If the motion raises such facts, the circuit court must hold an evidentiary
hearing.”).
¶47 We review de novo whether the postconviction motion entitles a
defendant to a Machner hearing—that is, whether the motion “on its face alleges
sufficient material facts that, if true, would entitle the defendant to relief.” Allen,
274 Wis. 2d 568, ¶9. At a minimum, the postconviction motion must “‘state with
particularity the [factual and legal] grounds for the motion.’” Id., ¶10 (quoting
WIS. STAT. § 971.30(2)(c)). A motion is not sufficient “if the record conclusively
demonstrates that the defendant is not entitled to relief.” Allen, 274 Wis. 2d 568,
¶9.
¶48 For Banks’s postconviction motion to succeed on an ineffective
assistance of counsel claim, the postconviction motion must allege sufficient
grounds to satisfy the two-prong test established in Strickland v. Washington, 466
U.S. 668, 687 (1984). The motion must demonstrate “that counsel’s performance
was deficient” and “that the deficient performance prejudiced the defense.” Id.

No. 2025AP597-CR
24
To show deficient performance, “the defendant must show that counsel’s
representation fell below an objective standard of reasonableness.” Id. at 687-88.
To show prejudice, the defendant must affirmatively prove that the alleged
deficiency in counsel’s performance had an adverse effect on the defense. Id. at
693. It is not enough to show that the defect had some conceivable effect on the
outcome. Rather, “[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. A court need not address both
prongs “if the defendant makes an insufficient showing on one.” Id. at 697.
A. Failing to move to dismiss the persistent repeater enhancer in the refiled
criminal complaint
¶49 Banks alleges in his postconviction motion that trial counsel was
ineffective for failing to dismiss the persistent repeater enhancer in the refiled
criminal complaint.
¶50 Banks alleges in his postconviction motion that trial counsel
performed deficiently in not moving to dismiss the persistent repeater enhancer
because the State was, as a matter of law, barred from refiling the charge with the
enhancer. Banks alleges that he was prejudiced by this deficient performance
because the circuit court would have granted the motion to dismiss, or, if the court
denied the motion to dismiss, trial counsel would have developed the record on the
issue and preserved it on direct appeal. In support of his claim, Banks cites WIS.
STAT. § 973.12(1); State v. Martin, 162 Wis. 2d 883, 470 N.W.2d 900 (1991); and
State v. Larsen, 177 Wis. 2d 835, 503 N.W.2d 359 (Ct. App. 1993). As we
explain, this legal authority does not support his claim.

No. 2025AP597-CR
25
¶51 WISCONSIN STAT. § 973.12(1) governs the procedure for including
in a criminal complaint a persistent repeater enhancer based on a prior conviction.
Under § 973.12(1), a criminal complaint may include or be amended to include the
prior conviction “any time before or at arraignment, and before acceptance of any
plea.” In Martin, our supreme court concluded that under § 973.12(1), a
complaint may not be amended for the purposes of adding “a repeater allegation
after a defendant has pleaded not guilty to the underlying charges at arraignment.”
Martin, 162 Wis. 2d at 891, 907. However, the court also noted that the State may
have “other remedies” available—such as moving to dismiss a criminal complaint
and refiling the complaint with a repeater allegation. Id. at 903 n.15 (citing State
v. Waldman, 57 Wis. 2d 234, 203 N.W.2d 691 (1973)).
¶52 This court affirmed just such an alternative remedy in Larsen. In
that case, we rejected Larsen’s argument that the circuit court erred in granting the
State’s motion to dismiss so the State could refile the charges with repeater
enhancers after discovering that it had misspelled Larsen’s name when searching
for prior convictions. Larsen, 177 Wis. 2d at 837-38, 841. We clarified that WIS.
STAT. § 973.12(1) and Martin do not “preclude the [S]tate, as a matter of law,
from seeking a dismissal without prejudice in order to file a new complaint which
adds a repeater allegation.” Larsen, 177 Wis. 2d at 838-40. We explained that
refiling charges that have been dismissed after arraignment—unlike amending an
existing charge after arraignment—does not “sandbag” a defendant or bind the
defendant to the plea made at arraignment on the initial criminal complaint. Id. at
839-40. That is, the defendant knew what the defendant was pleading to before
the initial complaint without the enhancer was dismissed, and the defendant knows
what the defendant is pleading to when the charge has been refiled with the
enhancer. Accordingly, “the purposes behind [§ 973.12] are served” when the

No. 2025AP597-CR
26
State refiles, rather than amends, a complaint after arraignment and a plea in the
initial case. Id. at 840.
¶53 Extending the logic of Larsen to the facts here, the purposes behind
WIS. STAT. § 973.12(1) were served, and the refiled complaint did not “sandbag”
Banks, when the circuit court dismissed the initial criminal complaint without the
enhancer and the State refiled the complaint with the enhancer. The refiled
criminal complaint alleged the prior conviction with the repeater enhancer before
arraignment and before Banks accepted any plea in this proceeding. Like the
defendant in Larsen, and in contrast to Martin, Banks was not bound to a former
plea on the dismissed complaint and was free to “enter a fresh plea with full
awareness of the possible punishment.” Larsen, 177 Wis. 2d at 840.
Consequently, neither § 973.12(1) nor Martin nor Larsen provide a legal basis for
a motion to dismiss the enhancer in the refiled criminal complaint, and Banks
identifies no other legal authority providing such a basis. In other words, Banks’s
postconviction motion fails to show that the circuit court was required to dismiss
the persistent repeater enhancer “as a matter of law.” See id. at 838-40.
¶54 Accordingly, Banks’s postconviction motion does not provide
sufficient legal grounds to show that a motion to dismiss would have merit. “Trial
counsel’s failure to bring a meritless motion does not constitute deficient
performance.” State v. Swinson, 2003 WI App 45, ¶59, 261 Wis. 2d 633, 660
N.W.2d 12. We conclude that Banks’s postconviction motion does not entitle him
to a Machner hearing based on the claim that trial counsel was ineffective for
failing to move to dismiss the persistent repeater enhancer in the State’s refiled
criminal complaint.

No. 2025AP597-CR
27
B. Failing to object to circuit court taking judicial notice of prior conviction
¶55 Banks alleges in his postconviction motion that trial counsel was
ineffective for failing to object to the circuit court taking judicial notice of Banks’s
prior conviction using an uncertified electronic copy of a judgment of conviction
as proof for application of the persistent repeater enhancer. We resolve this claim
based on the record conclusively showing that this alleged error did not prejudice
Banks.
¶56 We have determined that the circuit court did not err when it took
judicial notice of an electronic copy of the judgment of conviction, and the court
could have overruled an objection. But even if the court was uncertain about the
propriety of taking judicial notice under these facts, the end result would not have
changed. As the court explained, “Even if trial counsel’s best practice would have
been to object to the [c]ourt taking judicial notice after viewing the actual
judgment of conviction as stored in the electronic records, the remedy at the time
during the sentencing hearing would have been a delay while the State obtained a
certified copy of the judgment of conviction.” Accordingly, an objection would
not have changed the outcome of the proceeding: it is undisputed that the State
could have obtained a certified judgment of conviction as an alternative to relying
on judicial notice of the electronic copy of the judgment of conviction.
Accordingly, the record indicates that an objection would have resulted in the
State obtaining a certified copy, and the court would have imposed the same life
sentence under WIS. STAT. § 939.62(2m)(c).14
14 In other instances where a certified judgment of conviction is not readily available, the
circuit court might decline to take judicial notice, explain why it was doing so, and decline to
apply the enhancer based on the State’s failure to meet its burden. Those facts are not before us.

No. 2025AP597-CR
28
¶57 Banks argues on appeal that he was prejudiced because the appellate
record does not include the prior judgment of conviction and so, “[t]here is simply
no way for this Court to verify Mr. Banks’s conviction without going outside the
record.” However, Banks does not allege in his motion, and does not argue on
appeal, that the circuit court’s narration of the contents of the electronic copy of
the judgment of conviction—which is in the record—is inaccurate. While the
electronic copy of the judgment of conviction viewed by the court is not contained
within the appellate record, Banks does not show that its contents as narrated by
the court on the record are inaccurate or insufficient to prove the prior conviction.
¶58 We conclude that Banks’s postconviction motion does not entitle
him to a Machner hearing based on the claim that trial counsel was ineffective for
failing to object to the circuit court taking judicial notice of his prior conviction.
CONCLUSION
¶59 For the reasons set forth above, we affirm the circuit court’s order
denying Banks’s postconviction motion.
By the Court.—Judgment and order affirmed.
Recommended for publication in the official reports.