State v. Kenneth L. Risch

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.
February 7, 2023
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. 2020AP965-CR Cir. Ct. No. 2014CF9

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KENNETH L. RISCH,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Taylor County:
ANN KNOX-BAUER, Judge. Affirmed.

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

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Kenneth Risch, pro se, appeals an order amending
his judgment of conviction to reflect 1,141 days of sentence credit. Risch argues
No. 2020AP965-CR

that he is entitled to additional sentence credit for time he spent confined pursuant
to a different case but while on probation in this case. He also argues that the
circuit court denied him due process by amending his judgment of conviction
without a hearing and that he received constitutionally ineffective assistance of
counsel. We reject Risch’s arguments and affirm.

BACKGROUND

¶2 On December 12, 2014, Risch pled no contest to both second-degree
sexual assault of a child in this case and sexual gratification with an animal in
Taylor County case No. 2014CM6. The criminal complaint in this case alleged
that Risch had touched the vaginal area of an eight-year-old girl on two separate
occasions. In case No. 2014CM6, the State alleged that Risch had “sexual
intercourse with his dog.”

¶3 After accepting Risch’s pleas, and in accordance with the parties’
agreement, the court withheld sentence in both cases. It ordered Risch to serve
eight years of probation in this case with one year of conditional jail time. In case
No. 2014CM6, the court ordered one year of probation concurrent to the probation
in this case and two months of conditional jail time consecutive to the conditional
jail time ordered in this case. Risch served his year of conditional jail time in this
case from January 19, 2015, until January 19, 2016. According to Risch, he
remained confined in jail pursuant to the order in case No. 2014CM6 until
March 14, 2016.

¶4 In late 2017, Risch’s probation in this case was revoked after the
Department of Corrections (DOC) discovered “multiple images of naked or
partially clothed children on [Risch’s] HP Laptop.” The DOC also determined
that Risch had possessed and viewed sexually explicit videos with “titles

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No. 2020AP965-CR

describing the video[s] as containing underage individuals.” At the sentencing
after revocation hearing, the circuit court sentenced Risch to five years’ initial
confinement followed by seven years’ extended supervision. The court accepted
the sentence credit calculation provided by Risch’s counsel and awarded Risch
1,189 days of sentence credit. Risch later appealed his sentence to this court,
arguing that the circuit court relied on an improper sentencing factor and that his
trial counsel was ineffective for failing to object. State v. Risch,
No. 2019AP2027-CR, unpublished slip op. ¶1 (WI App Sept. 22, 2020). We
rejected Risch’s arguments and affirmed. Id., ¶2.

¶5 In February 2020, Risch filed a motion seeking to amend his
judgment of conviction. He argued that he was entitled to seven additional days of
sentence credit and that his judgment of conviction should be amended to reflect
1,196 days of sentence credit in total. Risch’s calculation consisted
of: (1) ninety-six days from a probation hold between 2013 and 2014; (2) 421
days from his conditional jail time in both this case and case No. 2014CM6;
(3) 127 days from a probation hold between 2016 and 2017; (4) seventy-eight days
from an alternative to revocation in 2017; and (5) 474 days from a probation hold
starting in 2017 and ending with Risch’s sentencing after revocation in 2018.
Risch also argued that he was entitled to 105 days of good time credit for his
conditional jail time pursuant to WIS. STAT. § 973.09(1)(d) (2019-20).1

¶6 In response to Risch’s motion, the State agreed that the judgment of
conviction should be amended, but it argued that Risch was actually entitled to

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2020AP965-CR

less sentence credit than he had originally received. As relevant to this appeal, the
State asserted that Risch was not entitled to any sentence credit for his conditional
jail time pursuant to case No. 2014CM6. The State therefore asserted that Risch
was entitled to only 366 days of sentence credit for his conditional jail time, not
the 421 days calculated by Risch.

¶7 In a written decision, the circuit court ordered that Risch’s judgment
of conviction be amended to reflect 1,141 days of sentence credit—forty-eight
days less than the sentence credit previously awarded. In reaching this conclusion,
the court agreed with all but one of Risch’s calculations: the 421 days of
conditional jail time in both this case and case No. 2014CM6. The court
determined that Risch was entitled to credit for only 366 of those days for his
conditional jail time served in this specific case. The court also denied Risch’s
request for good time credit, concluding that Risch’s offense did not qualify by
statute.2 Risch later filed a motion for reconsideration, but the court denied that
motion as well.

¶8 Risch now appeals. Additional facts will be provided as necessary
below.

2
Risch does not develop an argument on appeal that the circuit court erred in
determining that he was not entitled to good time credit. Risch has therefore abandoned the
argument, and we need not consider it further. 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 [circuit] court, but
not raised on appeal, is deemed abandoned.”).

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No. 2020AP965-CR

DISCUSSION

I. Sentence credit

¶9 On appeal, Risch argues that he is entitled to fifty-three additional
days of sentence credit for his confinement pursuant to case No. 2014CM6.3 He
contends that such confinement was unlawful because the aggregate fourteen
months of conditional jail time in this case and in case No. 2014CM6 exceeded the
one-year limit in WIS. STAT. § 973.09(4)(a). See also State v. Johnson, 2005 WI
App 202, ¶¶9, 20, 287 Wis. 2d 313, 704 N.W.2d 318 (concluding that a defendant
serves one period of probation under § 973.09 if convicted of two or more
offenses at the same time and that the conditional jail time under such period of
probation is limited to one year). He also points out that he completed his one
year of probation in case No. 2014CM6 before he began serving any conditional
jail time in that case; therefore, he served all of his conditional jail time while on
probation in this case.

3
Although Risch’s motion to the circuit court argued that he was entitled to 1,196 days
of sentence credit, he now appears to argue that he is entitled to only 1,194 days. Risch does not
explain this discrepancy. Regardless, we need not determine the precise number of days that
Risch was confined pursuant to case No. 2014CM6 because we conclude that he is not entitled to
any sentence credit for that confinement.

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No. 2020AP965-CR

¶10 The State does not address the merits of Risch’s argument that the
fourteen months of conditional jail time violated WIS. STAT. § 973.09(4)(a),4 nor
does it dispute that Risch had been discharged from case No. 2014CM6 before he
began serving any conditional jail time in that case. Instead, the State argues that
Risch has not shown that he is entitled to sentence credit under WIS. STAT.
§ 973.155 because the time served pursuant to case No. 2014CM6 was not “in
connection with” the acts for which his sentence was imposed in this case. The
State also contends that Risch is not entitled to an equitable remedy.

¶11 In Wisconsin, a defendant’s right to sentence credit is set forth in
WIS. STAT. § 973.155. The interpretation and application of § 973.155 are
questions of law that we review de novo. See State ex rel. Thorson v. Schwarz,
2004 WI 96, ¶13, 274 Wis. 2d 1, 681 N.W.2d 914.

¶12 Under WIS. STAT. § 973.155(1)(a), “[a] convicted offender shall be
given credit toward the service of his or her sentence for all days spent in custody
in connection with the course of conduct for which sentence was imposed.” Thus,
to be entitled to sentence credit under § 973.155(1)(a), the defendant must
show: (1) that “the defendant was ‘in custody’”; and (2) that “the custody was ‘in
connection with the course of conduct for which the sentence was imposed.’”

4
The State does, however, argue that Risch’s argument regarding the validity of the two
months of conditional jail time pursuant to case No. 2014CM6 is moot because he “has already
served the disputed time in [that] case and that case has been discharged.” Risch did not file a
reply brief, nor did he anticipatorily address the issue of mootness in his brief-in-chief. Thus, he
has conceded the argument. See United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304
Wis. 2d 750, 738 N.W.2d 578 (appellant’s failure to respond in reply brief to an argument made
in response brief may be taken as a concession). In any event, we need not determine whether
Risch’s conditional jail time pursuant to case No. 2014CM6 was lawful because even if we
assumed that it was unlawful, Risch has not shown that he is entitled to sentence credit for that
confinement. See Miesen v. DOT, 226 Wis. 2d 298, 309, 594 N.W.2d 821 (Ct. App. 1999) (court
of appeals “should decide cases on the narrowest possible grounds”).

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No. 2020AP965-CR

State v. Lira, 2021 WI 81, ¶29, 399 Wis. 2d 419, 966 N.W.2d 605 (citations
omitted). The connection between the presentence custody and the sentence
imposed “must be factual; a mere procedural connection will not suffice.” State v.
Johnson, 2009 WI 57, ¶33, 318 Wis. 2d 21, 767 N.W.2d 207 (hereinafter, Elandis
Johnson); see also State v. Harrison, 2020 WI 35, ¶43, 391 Wis. 2d 161, 942
N.W.2d 310.

¶13 Here, it is undisputed that Risch was “in custody” from January 19,
2016, until March 14, 2016, pursuant to the two months of conditional jail time
ordered in case No. 2014CM6. Risch has not shown, however, a factual
connection between that confinement and the course of conduct for which the
circuit court imposed his sentence in this case. In this case, Risch was sentenced
for sexual contact with an eight-year-old girl. In contrast, Risch’s confinement
pursuant to case No. 2014CM6 was in connection to him having sexual
intercourse with his dog. Thus, the conditional jail time served pursuant to case
No. 2014CM6 was not “in connection with the course of conduct for which
sentence was imposed” in this case—i.e., Risch’s sexual assault of an
eight-year-old girl. See WIS. STAT. § 973.155(1)(a).

¶14 Risch attempts to draw several connections between his confinement
pursuant to case No. 2014CM6 and his sentence in this case, arguing that both
cases were investigated, charged and prosecuted together, and that he was
convicted and placed on probation in both cases at the same time. All of these
connections, however, are procedural connections between the two cases, not a
factual connection between the confinement pursuant to case No. 2014CM6 and
the conduct for which sentence was imposed in this case. See Elandis Johnson,
318 Wis. 2d 21, ¶33.

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No. 2020AP965-CR

¶15 Moreover, even if the circuit court imposed one term of probation in
both this case and in case No. 2014CM6, such a connection does not matter under
WIS. STAT. § 973.155(1)(a). “Probation is not a sentence and, therefore, jail time
served as a condition of probation is not a sentence.” See State v. Yanick, 2007
WI App 30, ¶9, 299 Wis. 2d 456, 728 N.W.2d 365. The relevant
“sentence … imposed” for purposes of calculating sentence credit under
§ 973.155(1)(a) is Risch’s sentence of five years’ initial confinement followed by
seven years’ extended supervision. That sentence, however, was imposed for
Risch’s sexual assault of an eight-year-old girl, not Risch’s sexual intercourse with
his dog in case No. 2014CM6. Therefore, there is no connection between Risch’s
confinement pursuant to case No. 2014CM6 and the course of conduct for which
he was sentenced in this case.

¶16 Risch also appears to suggest that he is entitled to an equitable
remedy for his invalid conditional jail time pursuant to case No. 2014CM6,
arguing that the “53 days … must be applied somewhere, and by default must be
applied [to the sentence imposed in this case].” Our supreme court, however, has
instructed that “[c]ourts … should be most hesitant to adopt judicially created
remedies [for issues such as sentence credit] when the legislature, the primary
policymaker, has statutorily addressed the topic.” State v. Friedlander, 2019 WI
22, ¶44, 385 Wis. 2d 633, 923 N.W.2d 849.

¶17 Indeed, in a similar context, our supreme court refused to adopt a
new remedy for circumstances where WIS. STAT. § 973.155(1)(a) did not apply.
See Harrison, 391 Wis. 2d 161, ¶66. Specifically, the court considered whether to
adopt the concept of advancement, which would have allowed a court to
“advance” the commencement date of a second or subsequent sentence to the start
date of an earlier sentence that was later determined to be void. Id., ¶¶51, 60. The

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No. 2020AP965-CR

court recognized that it was “bound by the plain meaning of sentence credit
statutes” and that “to some degree applying advancement would conflict with the
statutory choices of the legislature.” Id., ¶62. The court therefore concluded that
the decision whether to adopt advancement was a public policy choice “better left
to the legislature.” Id., ¶¶62, 66.

¶18 Similar to the defendant in Harrison, Risch has not shown that he is
entitled to sentence credit under the plain language of WIS. STAT. § 973.155(1)(a).
Even if the conditional jail time that Risch served pursuant to case No. 2014CM6
was unlawful, we cannot create a remedy that would give Risch credit in this case
for that confinement. See Friedlander, 385 Wis. 2d 633, ¶44. We therefore reject
Risch’s contention that “by default” he must be given sentence credit in this case
for his conditional jail time pursuant to case No. 2014CM6.

II. Due process

¶19 Risch next argues that the circuit court denied him due process by
“revok[ing some of his] sentence credit without a hearing.” Risch suggests that
such a hearing was required pursuant to State v. Amos, 153 Wis. 2d 257, 450
N.W.2d 503 (Ct. App. 1989). Risch’s arguments are misplaced.

¶20 “Due process requires that there be an opportunity to be heard upon
such notice and proceedings as are adequate to safeguard the right for which the
constitutional protection is invoked.” State ex rel. Schatz v. McCaughtry, 2003
WI 80, ¶18, 263 Wis. 2d 83, 664 N.W.2d 596. However, “[d]ue process is flexible
and calls for such procedural protections as the particular situation demands.”
State v. Chamblis, 2015 WI 53, ¶54, 362 Wis. 2d 370, 864 N.W.2d 806 (citations
omitted). Whether a due process violation has occurred is a question of law that

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No. 2020AP965-CR

we review de novo. See State v. Luedtke, 2015 WI 42, ¶37, 362 Wis. 2d 1, 863
N.W.2d 592.

¶21 Under the circumstances, Risch received adequate notice and a
sufficient opportunity to be heard on the issue of sentence credit. Risch himself
requested that the circuit court consider the issue and knew that the State had, in
turn, requested that Risch’s sentence credit be reduced. Risch also had an
opportunity to fully develop his arguments on the issue through his written
submissions to the court, including his reply brief opposing the State’s request to
reduce his sentence credit. Significantly, there were no factual disputes regarding
the amount of time Risch had spent in custody, such that an evidentiary hearing
might have been necessary, nor did Risch specifically request a hearing on his
motion. The court could therefore determine from the record and the briefing
alone whether Risch was entitled to sentence credit in this case for his conditional
jail time served pursuant to case No. 2014CM6.

¶22 Furthermore, Amos is not analogous to this case. In Amos, the
circuit court sua sponte eliminated the previously awarded sentence credit without
giving the defendant prior notice or an opportunity to be heard. Amos, 153
Wis. 2d at 267-68, 281. We recognized that the circuit court’s actions had denied
the defendant due process, but we nonetheless concluded that the defendant had
received due process with his subsequent postconviction motion. See id. at 281.
As discussed above, unlike the defendant in Amos, Risch had adequate notice that
the court was considering the issue of sentence credit, and he had a sufficient
opportunity to be heard through his briefing.

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No. 2020AP965-CR

III. Ineffective assistance of counsel

¶23 Finally, Risch raises two separate claims of ineffective assistance of
counsel.5 First, he contends that his counsel at the sentencing after revocation
hearing performed deficiently by recommending 1,189 days of sentence credit
instead of the amount now calculated by Risch. He asserts that if counsel had
correctly calculated Risch’s sentence credit, “the series of events” that led to this
appeal—including Risch’s own pro se motion—would not have occurred. Second,
he argues that his trial counsel in 2014 performed deficiently by “failing to
understand the law,” by failing to “object[] during sentencing,” and by failing “to
follow up with Risch on [his] post-conviction relief.” Risch asserts that counsel’s
deficient performance led to “an illegitimate illegal probation order.”

¶24 A criminal defendant has the constitutional right to effective
assistance of counsel. State v. Sholar, 2018 WI 53, ¶32, 381 Wis. 2d 560, 912
N.W.2d 89. To prevail on an ineffective assistance of counsel claim, the
defendant bears the burden of proving: (1) that counsel’s performance was
deficient; and (2) that the deficient performance prejudiced the defense. Id. A
court need not address both prongs of this inquiry if the defendant does not make a
sufficient showing on one. State v. Smith, 2003 WI App 234, ¶15, 268 Wis. 2d
138, 671 N.W.2d 854.

5
From our review of the record, it does not appear that Risch raised his ineffective
assistance claims in the circuit court. Generally, we need not address an ineffective assistance of
trial counsel claim if raised for the first time on appeal. See State ex rel. Rothering v.
McCaughtry, 205 Wis. 2d 675, 677-78, 556 N.W.2d 136 (Ct. App. 1996). In any event, we will
address Risch’s claims because the record conclusively demonstrates that he is not entitled to
relief, see State v. Phillips, 2009 WI App 179, ¶17, 322 Wis. 2d 576, 778 N.W.2d 157, and
because the State did not argue forfeiture or waiver in its appellate brief.

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No. 2020AP965-CR

¶25 Even if we assumed that Risch’s trial counsel had performed
deficiently by miscalculating Risch’s sentence credit, we conclude that Risch has
not established prejudice. To establish prejudice, “a defendant must show that
there is a reasonable probability that, but for counsel’s professional errors, the
result of the proceeding would have been different.” State v. Savage, 2020 WI 93,
¶32, 395 Wis. 2d 1, 951 N.W.2d 838 (citation omitted). As we have explained,
Risch was ultimately entitled to less sentence credit than the amount calculated by
his trial counsel and originally adopted by the circuit court. Thus, counsel’s error
did not prejudice Risch’s defense but rather benefited Risch because he originally
received more credit than the amount he was entitled. Furthermore, Risch’s
motion to amend his judgment of conviction—not his trial counsel’s actions—
caused the court to reduce Risch’s sentence credit. In short, Risch suffered no
prejudice from his counsel miscalculating Risch’s sentence credit.

¶26 Likewise, even if Risch’s original trial counsel had provided
ineffective assistance by allowing Risch to agree to an unlawful amount of
conditional jail time in his plea agreement, Risch has not identified a possible
remedy for such an error. The State specifically contends that “there is no remedy
available to [Risch].” The State points out that Risch has already served the jail
time at issue and that case No. 2014CM6 was discharged years ago. The State
also correctly observes that Risch is not entitled to sentence credit in this case for
that jail time. Risch did not file a reply brief, nor did he address these arguments
in his brief-in-chief. Accordingly, we deem Risch to have conceded the State’s

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No. 2020AP965-CR

argument that he has no remedy available to him.6 See United Coop. v. Frontier
FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

6
Risch makes several statements—without citation to the record—accusing the circuit
court of lacking impartiality, disregarding the law, and “blindly following the State’s wishes.”
Although Risch organizes these statements as a separate argument and cites legal authority
related to judicial bias, he neither applies that legal authority to the alleged facts of this case nor
asks for any relief other than “correct[ing]” the court’s order. We do not construe Risch’s
statements to be a separate claim of judicial bias. However, to the extent he does make such a
claim, we conclude that he cannot prevail. See State v. Gudgeon, 2006 WI App 143, ¶¶20-26,
295 Wis. 2d 189, 720 N.W.2d 114. For the reasons we have explained, the court correctly
determined that Risch was not entitled to credit in this case for his conditional jail time pursuant
to case No. 2014CM6. In addition, our review of the record does not suggest that the court
disregarded the relevant law or “blindly follow[ed] the State’s wishes.” To the contrary, the court
awarded Risch one more day of sentence credit than the State had originally argued.

We have thoroughly examined Risch’s appellate briefing in an attempt to discern all of
his arguments. To the extent we do not address an argument, we conclude it is not sufficiently
developed to merit discussion. See State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261
N.W.2d 147 (1978) (“[I]ssues raised and not discussed … can be deemed to lack sufficient merit
or importance to warrant individual attention.”).

13