State v. Scott Lee Reed

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.
November 8, 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. 2020AP1897-CR Cir. Ct. No. 2018CF66

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

SCOTT LEE REED,

DEFENDANT-APPELLANT.

APPEAL from a judgment and orders of the circuit court for
Marinette County: JAMES A. MORRISON, 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. Scott Reed appeals from a judgment convicting
him of conspiracy to commit first-degree intentional homicide and from orders
No. 2020AP1897-CR

denying him postconviction relief. Reed argues that he should be allowed to
withdraw his no-contest plea due to the constitutionally ineffective assistance of
his trial counsel. Reed also contends that the circuit court erroneously rejected
some of his ineffective assistance of counsel claims prior to the Machner1 hearing.
In the alternative, Reed argues that he must be resentenced due to the court relying
on inaccurate or improper information at sentencing, or he should have his
sentence modified based on a new factor. We reject Reed’s arguments and affirm.

BACKGROUND

¶2 In late 2017, Reed was living with two friends, Troy Evert and
Rachel Kirschner, who were dating one another. At the time, Reed considered
Kirschner to be his “best friend,” and he would refer to her as his “sister,” even
though they had no familial relationship. One evening, in October 2017,
Kirschner became intoxicated and told a recent ex-boyfriend, Joey,2 that she and
her boyfriend Evert had set fire to a person’s cabin after that person called
Kirschner a “whore.” Upon learning about the fire, Joey insisted that Kirschner
breakup with Evert and threatened to tell law enforcement about the fire. As time
passed, Joey became “more aggressive” with his demands, and Kirschner grew
frustrated. At one point, Kirschner threatened to kill herself.

¶3 After Joey learned about the fire, Kirschner and Evert openly
discussed how “somebody needs to take care of [Joey],” which Reed heard and

1
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
2
Pursuant to the policy underlying WIS. STAT. RULE 809.86(4) (2019-20), we use a
pseudonym instead of the victim’s name. All references to the Wisconsin Statutes are to the
2019-20 version unless otherwise noted.

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understood meant “to kill” Joey. Reed eventually became involved in a plan to do
exactly that. In mid-December 2017, Evert—with Reed present and while using
Reed’s cellphone—contacted a man in Illinois to “take care of [Joey]” and offered
to pay him $100. Evert and the man discussed the possibility of getting a gun
from Amazon or Walmart and how Reed would take the man to Joey’s home to
“stake him out.” After the call, Reed took $100 that Evert had given him and
wired the money to the man. However, the man later stated he could not “do it”
and would return the money.

¶4 Around the same time, Reed sent several messages to friends about
the plot against Joey. Reed told one friend, “I’m going to kill [Joey].” He told
another friend that “I might be going to persion [sic] for life” and that “I have a
green light on someone[;] he needs to be gone by Monday.” Reed told a third
friend, “I have a green light[;] i need a pi[e]ce.”

¶5 After the Illinois man refused to get involved, Kirschner told Reed
one evening that “you got to go do it. I can’t take it no more.” Reed acquiesced to
Kirschner’s request and said he would “take care of it.” Reed grabbed a steak
knife and then drove to Joey’s home.

¶6 Upon arriving at Joey’s home, Reed rang the doorbell, and Joey
opened the door. The two men had a brief exchange of words, with Reed
stating: “You mother fucker. Stop messing with my sister.” According to Joey,
Reed immediately pulled a three-inch kitchen knife from his hip and attempted to
stab Joey in his midsection. Joey blocked the knife with his right arm and was
stabbed in his upper forearm. Reed subsequently removed the knife from Joey’s
arm and raised the knife up in the air, holding the knife in a downward, thrusting
position. Joey grabbed Reed’s arm, which prevented Reed from stabbing Joey

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again. A brief struggle ensued, but it was quickly broken up when Joey’s
grandfather came out of the home and yelled at Reed. Joey and Reed released
each other, and Reed took off running. Although Joey survived the stabbing, he
suffered permanent nerve damage in his arm.

¶7 Shortly thereafter, Reed was arrested, and he gave a statement to law
enforcement about the incident. Reed admitted to stabbing Joey, but he claimed
that he did so only because Joey had started choking him. Later in the interview,
however, Reed admitted that he went to Joey’s home to stab Joey “but probably
just in the arm.” Reed claimed that he “just wanted to hurt [Joey,] but he didn’t
want to kill him.” The State initially charged Reed with one count of first-degree
recklessly endangering safety with use of a dangerous weapon. After further
investigation, and upon obtaining additional information, the State filed a new
criminal complaint charging Reed with one count of conspiracy to commit
first-degree intentional homicide. The first charge was subsequently dismissed.

¶8 Reed pled no contest to the conspiracy charge, and the circuit court
ordered a presentence investigation report (PSI), which was filed before the
sentencing hearing. The PSI detailed, among other things, Reed’s criminal
history, and it recommended that the court sentence Reed to thirteen years’ initial
confinement followed by six years’ extended supervision.

¶9 At the sentencing hearing, the parties jointly recommended a
sentence of ten years’ initial confinement followed by ten years’ extended
supervision. The circuit court, however, rejected the parties’ recommendation.
The court expressed dismay over how Reed became involved with this plot and
attacked Joey “for no discernable reason.” The court also discussed Reed’s
criminal history, noting that Reed had thirteen criminal convictions as an adult and

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four adjudications as a juvenile. Of those offenses, the court observed that thirteen
offenses involved violence. The court also prominently noted the PSI author’s
comment that he did not disagree with Joey’s belief that Reed should receive the
“[m]aximum sentence possible.” Ultimately, the court imposed a forty-five-year
sentence, consisting of twenty-five years’ initial confinement followed by twenty
years’ extended supervision.

¶10 Reed subsequently filed a postconviction motion, requesting plea
withdrawal or, alternatively, resentencing or sentence modification. Reed alleged
that he received ineffective assistance of counsel because his trial
counsel: (1) failed to inform him of potential trial defenses, such as seeking an
instruction on self-defense or for a lesser-included offense; (2) failed to seek plea
withdrawal prior to sentencing despite Reed’s insistence that he did not intend to
kill Joey; (3) failed to investigate Reed’s “criminal history” that was detailed in
the PSI; and (4) failed to request an adjournment at sentencing to clarify the PSI
author’s sentence recommendation. Reed further alleged that the circuit court
relied on inaccurate and improper information at sentencing and that his
cooperation after sentencing constituted a new factor.

¶11 The circuit court denied Reed’s motion without an evidentiary
hearing, but it allowed him to amend his motion to allege that his trial counsel
“strong[-]armed him into a plea.” Thereafter, Reed filed an amended motion,
alleging that he received ineffective assistance of counsel because his trial counsel
“overcame Reed’s will not to plead” by insisting that Reed accept the plea
agreement and because trial counsel failed to adequately consider Reed’s request
to withdraw his plea before sentencing. The court held a Machner hearing on
Reed’s amended motion, at which Reed and his trial counsel testified. The court
later denied Reed’s amended motion in a written decision.

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No. 2020AP1897-CR

¶12 Reed appeals. Additional facts will be provided as necessary below.

DISCUSSION

I. Plea withdrawal on the basis of ineffective assistance of counsel

¶13 A defendant may withdraw a guilty or no-contest plea after
sentencing if the defendant shows by clear and convincing evidence that a refusal
to allow plea withdrawal would result in manifest injustice. State v. Jeninga,
2019 WI App 14, ¶11, 386 Wis. 2d 336, 925 N.W.2d 574. One way to establish
manifest injustice is to show that the defendant received ineffective assistance of
counsel. State v. Dillard, 2014 WI 123, ¶84, 358 Wis. 2d 543, 859 N.W.2d 44.

¶14 To show ineffective assistance of counsel, the defendant must
prove: (1) that counsel’s performance was deficient; and (2) that the deficient
performance prejudiced the defense. State v. Sholar, 2018 WI 53, ¶32, 381
Wis. 2d 560, 912 N.W.2d 89. A court need not address both components 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.

¶15 Under the deficient performance prong, a defendant must
demonstrate that his or her trial counsel’s performance fell below “an objective
standard of reasonableness.” State v. Savage, 2020 WI 93, ¶28, 395 Wis. 2d 1,
951 N.W.2d 838 (citation omitted). “Courts afford great deference to trial
counsel’s conduct, presuming that it ‘falls within the wide range of reasonable
professional assistance.’” Id. (citation omitted). “Counsel need not be perfect,
indeed not even very good, to be constitutionally adequate.” State v. Thiel, 2003
WI 111, ¶19, 264 Wis. 2d 571, 665 N.W.2d 305 (citation omitted).

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No. 2020AP1897-CR

¶16 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.” Savage, 395 Wis. 2d 1, ¶32 (quoting
Strickland v. Washington, 466 U.S. 668, 694 (1984)). In the plea withdrawal
context, there must be “a reasonable probability that, but for counsel’s errors, [the
defendant] would not have pleaded guilty and would have insisted on going to
trial.” State v. Cooper, 2019 WI 73, ¶32, 387 Wis. 2d 439, 929 N.W.2d 192
(citation omitted). A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Strickland, 466 U.S. 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).

¶17 Whether a defendant has been denied the effective assistance of
counsel is a mixed question of law and fact. Savage, 395 Wis. 2d 1, ¶25. We will
not overturn a circuit court’s findings of fact—including findings regarding the
factual circumstances of the case and trial counsel’s conduct and strategy—unless
those findings are clearly erroneous. Id. We review de novo whether counsel
performed deficiently and, if so, whether counsel’s deficient performance was
prejudicial to the defense. Id.

A. Reed’s knowing, intelligent and voluntary plea

¶18 Reed asserts that he did not knowingly, intelligently and voluntarily
enter his plea because his trial counsel compelled him to enter his plea and
because counsel failed to identify and inform Reed of potential defenses to the

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No. 2020AP1897-CR

offense charged before Reed entered his plea.3 He contends that these actions and
omissions by counsel constitute deficient performance. We address each of
Reed’s arguments in turn.

¶19 Reed argues that his trial counsel performed deficiently by
“compelling” him to plead no contest to the conspiracy charge despite Reed
“insist[ing] he never intended to conspire to kill [Joey].” This argument, however,
wholly ignores the circuit court’s finding that “Reed … wanted to go forward
[with his plea].” Based upon evidence produced at the Machner hearing, the court
recognized “that Reed was, at first, confused about” the intent element of the
conspiracy charge but that counsel thoroughly explained—and ensured that Reed
understood—the elements of the crime to which he pled. The court also noted that
trial counsel took extra time, at Reed’s request, to explain to Reed’s mother how
the evidence satisfied the elements of the crime. The court found “that Reed
ultimately agreed that he understood these explanations.” Reed provides no basis
to conclude that these findings are clearly erroneous; therefore, they must be
affirmed. See Savage, 395 Wis. 2d 1, ¶25.

¶20 Reed also contends that his trial counsel performed deficiently by
not reasonably considering the relevance of Reed’s version of how the stabbing
occurred. In particular, he emphasizes his statement to law enforcement that he
brandished the knife and stabbed Joey only after Joey started choking him. Reed

3
Reed’s arguments regarding whether he knowingly, intelligently and voluntarily
entered his plea are, at times, disjointed and hard to follow. To the extent we do not address an
argument related to this claim, we conclude that the argument was not sufficiently developed to
warrant consideration. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App.
1992) (we need not address undeveloped arguments).

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No. 2020AP1897-CR

argues that this evidence was relevant to showing whether Reed had conspired to
intentionally kill Joey.

¶21 Again, Reed’s argument is directly contradicted by the circuit
court’s factual findings and the record. As the court observed, trial counsel
explained to Reed that his “subjective intent” at the time of the stabbing “would
not matter to his plea to conspiracy because the crime of conspiracy was already
committed when [Evert and Reed] phoned the guy in Illinois to commit a murder,
or when they sent him money to commit a murder.” Indeed, conspiracy to commit
first-degree intentional homicide is established if: (1) the defendant intended that
the crime of first-degree intentional homicide be committed; (2) the defendant
agreed with at least one other person to commit the crime; and (3) one of the
conspirators performed an act in furtherance of the conspiracy. See State v.
Peralta, 2011 WI App 81, ¶18, 334 Wis. 2d 159, 800 N.W.2d 512; see also WIS.
STAT. § 939.31; WIS JI—CRIMINAL 570 (2008).

¶22 The State had strong evidence to establish each of these elements
without relying on Reed’s actions at Joey’s home. Reed explicitly told law
enforcement that he understood that Evert was seeking to have Joey killed when
Evert contacted the Illinois man. Therefore, Reed’s wiring of money to the man
after Evert’s phone call with the man is indicative of Reed’s intent and agreement
with Evert to have Joey intentionally killed and evidences an act in furtherance of
the conspiracy. In addition, Reed’s intent and agreement are further buttressed by
his numerous messages to friends, prior to his actions at Joey’s home, about
killing Joey and about Reed going to prison for life.

¶23 Accordingly, relying on Reed’s account that he acted in self-defense
when he stabbed Joey would not have been an effective defense because the

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No. 2020AP1897-CR

elements of the crime could be established from conduct that occurred well before
Reed confronted Joey. Trial counsel thus did not perform deficiently by not
giving further consideration to Reed’s version of the stabbing.

¶24 Finally, Reed appears to argue that his trial counsel performed
deficiently by not informing the circuit court that Reed “adamant[ly]” denied ever
possessing the requisite intent for the offense.4 Reed even suggests that counsel
knew Reed was being “untruthful”—i.e., lied—during the plea colloquy. This
argument, yet again, ignores the court’s critical findings that, before entering his
plea, Reed understood his trial counsel’s explanations regarding the sufficiency of
the evidence on each element of the crime and that Reed wanted to go forward
with the plea agreement. Reed provides no basis to disturb these findings.
Therefore, we can only conclude that counsel did not perform deficiently.

B. Trial counsel’s decision not to seek plea withdrawal before sentencing

¶25 Reed also argues that his trial counsel performed deficiently by not
seeking to withdraw Reed’s plea because: (1) “Reed continued to deny he ever
intended to kill anyone”; and (2) Reed asked counsel to withdraw his no-contest

4
Reed’s argument about whether he actually believed he had the requisite intent is
largely beside the point because he pled no contest to the State’s charge. By doing so, Reed did
not admit unqualified guilt to that charge, “which is precisely the advantage of entering a
no[-]contest plea instead of a guilty plea.” See State v. Black, 2001 WI 31, ¶15, 242 Wis. 2d 126,
624 N.W.2d 363. Reed could therefore plead no contest, even while maintaining that he did not
possess the requisite intent, “as long as the facts set forth in the complaint met the elements of the
offense.” See id. A factual basis for a plea exists if an inculpatory inference can be drawn from
the complaint or from facts admitted to by the defendant even though it may conflict with an
exculpatory inference and the defendant later maintains that the exculpatory inference is the
correct one. Id., ¶16. Here, the facts alleged in the complaint gave rise to a reasonable inference
that Reed possessed the requisite intent, even if Reed maintained that he did not. Accordingly,
we cannot conclude that Reed’s trial counsel performed deficiently simply because counsel did
not inform the court of Reed’s personal opinion on whether he possessed the requisite intent.

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No. 2020AP1897-CR

plea before sentencing. Reed asserts that his trial counsel should have investigated
the reasons Reed wanted to withdraw his plea and should have attempted to
withdraw the plea before sentencing.

¶26 Similar to Reed’s earlier arguments, these arguments fail to
overcome the circuit court’s factual findings. The court found that after extensive
discussions with his trial counsel, Reed understood the intent element of the crime
to which he pled and wanted to go forward with the plea agreement. The court
also expressly found that Reed had never asked trial counsel about withdrawing
his plea before sentencing.

¶27 Reed provides no reason to second-guess the first of these two
findings, and it therefore must be upheld. Reed argues, however, that the circuit
court was required to find that he asked to withdraw his plea prior to sentencing
because trial counsel was unable to definitively recall whether Reed made such a
request.

¶28 We disagree. The circuit court was not required to credit Reed’s
testimony or find in his favor. See State v. Ayala, 2011 WI App 6, ¶10, 331
Wis. 2d 171, 793 N.W.2d 511 (“Where the [circuit] court is the finder of fact and
there is conflicting evidence, the [circuit] court is the ultimate arbiter of the
credibility of witnesses.”). The court expressly credited trial counsel’s testimony
that he could not recall Reed requesting plea withdrawal and that counsel normally
takes steps to address a client’s plea withdrawal request. In contrast, the court
observed that Reed’s conduct and statements “throughout these entire proceedings,
most especially at the [Machner] hearing …, demonstrate that he is a completely
incredible, that is unbelievable, witness.” The court noted numerous instances in
which Reed admitted he lied during the proceedings and concluded “there is

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No. 2020AP1897-CR

absolutely no reason to believe any of the things which Reed is saying now.”
Based on the court’s credibility determinations and trial counsel’s testimony, the
court could infer that Reed never requested to withdraw his plea before
sentencing. Thus, the court’s finding in that regard is not clearly erroneous.

¶29 In sum, because the circuit court’s findings—i.e., that Reed
understood and agreed to go forward with the plea agreement and never requested
to withdraw his plea before sentencing—are not clearly erroneous, Reed has failed
to show that his trial counsel performed deficiently by not seeking plea withdrawal
before Reed’s sentencing.

II. The right to an evidentiary hearing on a postconviction motion

¶30 A postconviction motion alleging ineffective assistance of counsel
does not automatically entitle a defendant to a Machner hearing. State v. Phillips,
2009 WI App 179, ¶17, 322 Wis. 2d 576, 778 N.W.2d 157. Indeed, a circuit court
need not hold a Machner hearing if the defendant fails to allege sufficient facts in
his or her motion, if the defendant presents only conclusory allegations or
subjective opinions, or if the record conclusively demonstrates that the defendant
is not entitled to relief. Phillips, 322 Wis. 2d 576, ¶17. “Whether a motion
alleges facts which, if true, would entitle a defendant to relief is a question of law
that we review de novo.” State v. Bentley, 201 Wis. 2d 303, 310, 548 N.W.2d 50
(1996).

¶31 Reed alleged in his original postconviction motion that he received
constitutionally ineffective assistance of counsel because his trial counsel failed to
investigate his “criminal history” in Illinois and failed to inform the circuit court
that the “criminal history” described in the PSI did not “conclusively determine”
whether Reed had been convicted of felonies or misdemeanors in Illinois. Reed

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No. 2020AP1897-CR

also alleged in an affidavit that he told his trial counsel he did not think he had
been convicted of a number of the offenses identified in the PSI. The court
rejected this claim prior to the Machner hearing. Reed renews these allegations
and arguments on appeal, arguing that he received ineffective assistance of
counsel because trial counsel failed to clarify how the offenses in the PSI were
resolved or whether they ended in convictions.5

¶32 Reed’s allegations in his original postconviction motion were
insufficient to warrant a hearing.

[A] defendant who alleges a failure to investigate on the
part of his or her counsel must allege with specificity what
the investigation would have revealed and how it would
have altered the outcome of the case. A defendant must
base a challenge to counsel’s representation on more than
speculation.

State v. Leighton, 2000 WI App 156, ¶38, 237 Wis. 2d 709, 616 N.W.2d 126
(citation omitted). Here, Reed has not alleged what his trial counsel would have
discovered had counsel investigated Reed’s criminal history in Illinois. Therefore,
Reed can only speculate as to whether counsel’s lack of investigation prejudiced
Reed’s defense, which is insufficient—as a matter of law—to entitle Reed to
relief. See id.

5
Reed develops two of his ineffective assistance of counsel claims—specifically, his
claims that counsel failed to investigate his criminal history and failed to seek clarification
regarding the sentence recommendation in the PSI—as if the circuit court considered and
addressed them after the Machner hearing. We note, however, that the Machner hearing was
limited to the issues raised in Reed’s amended postconviction motion. We therefore construe
Reed’s arguments to be that he should have also received a Machner hearing on these ineffective
assistance of counsel claims.

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No. 2020AP1897-CR

¶33 Reed also alleged in his original postconviction motion that his trial
counsel was ineffective for failing to request an adjournment of the sentencing
hearing to investigate and seek clarification regarding an “unclear” and
“ambiguous” sentence recommendation in the PSI. Reed asserted that this
deficient performance was prejudicial because the circuit court relied on the
“ambiguous recommendation.” Like the prior claim, the court rejected this
argument before the Machner hearing.

¶34 Although Reed did not explain in his postconviction motion how the
sentence recommendation was unclear, he identifies on appeal two statements that
he believes are contradictory. First, the PSI stated that “[Joey] … believes that
Mr. Reed should be sentenced to the [m]aximum sentence possible and this writer
does not disagree with [him], as it appears to this writer that Mr. Reed conspired to
kill [Joey] and then he attempted to carry out that plan to kill [him].” Second, the
PSI stated that “[t]he Department of Corrections [DOC] respectfully recommends
the [c]ourt sentence the defendant to 13 years in the Wisconsin State Prison
System, followed by 6 years of extended supervision.”

¶35 Despite these two statements, the record demonstrates that Reed is
not entitled to relief. At the sentencing hearing, the circuit court accurately read
the amount of confinement recommended in the PSI, noting that “[t]he PSI
suggests 13 years in prison.” However, the court found it “very interesting” that
the PSI author agreed with Joey’s recommendation for the “[m]aximum sentence
possible.” The court observed that the PSI author was “required to follow [the
DOC’s Bifurcated Sentence Recommendation G]rid,” and the court inferred that,
by agreeing with Joey’s recommendation, the PSI author “is saying much, much
more time is actually appropriate.” The court nonetheless recognized:
“Ultimately, the [sentencing] decision and responsibility is mine.”

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No. 2020AP1897-CR

¶36 Under these circumstances, it would have been reasonable for an
attorney to not seek an adjournment of the sentencing hearing to investigate the
PSI author’s comments. The circuit court plainly understood the DOC’s formal
sentence recommendation, which is demonstrated by the court’s recitation of that
recommendation on the record. Although the court inferred that the PSI author
was suggesting a lengthier sentence—an inference that does not seem
unreasonable on its face—the court also recognized that it was the ultimate
decision maker on the matter. Accordingly, counsel’s performance did not fall
below an objective standard of reasonableness, and the record therefore
conclusively demonstrates that Reed is not entitled to relief or a Machner hearing.
See Phillips, 322 Wis. 2d 576, ¶17.

¶37 Reed next argues that he was entitled to a Machner hearing on his
claim that his trial counsel failed to inform him before his plea that he could seek
an instruction at trial for a lesser-included offense. Reed contends that such an
instruction was a viable defense because the jury could have acquitted him of
conspiracy to commit first-degree intentional homicide but convicted him of a
lesser conspiracy offense, such as “conspiracy to injure or batter.” In Reed’s
original postconviction motion, he alleged that he could have been convicted of
“first-degree reckless endangering safety” or “first[-] and second[-]degree reckless
injury.”

¶38 As an initial matter, we note that Reed apparently concedes in his
appellate brief that he would not have been entitled to submission of the
lesser-included charges advanced in his original postconviction motion. As to the
purported lesser conspiracy offenses, because Reed did not raise an argument
regarding such offenses below, he has forfeited his claim on appeal. See Schill v.

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Wisconsin Rapids Sch. Dist., 2010 WI 86, ¶45 n.21, 327 Wis. 2d 572, 786
N.W.2d 177 (we may deem issues forfeited if not preserved at the circuit court).

¶39 Regardless, Reed’s allegations that he could have been convicted of
a lesser-included offense are conclusory and undeveloped. In particular, Reed
fails to show how any offense identified in his postconviction motion (or his
appellate briefing) is a lesser-include offense of conspiracy to commit first-degree
intentional homicide. To determine whether a crime is a lesser-included offense
of another, Wisconsin courts employ an “elements-only” test. State v. Jackson,
2011 WI App 63, ¶11, 333 Wis. 2d 665, 799 N.W.2d 461. Under the
“elements-only” test, “[a] lesser included offense may not include an additional
element beyond those essential for conviction of the crime charged.” Id.
WISCONSIN STAT. § 939.66 also provides additional circumstances in which an
offense may be a lesser-included offense of another crime.

¶40 Reed has made no attempt—either in his postconviction motion or in
his appellate briefing—to apply the “elements-only” test or to identify a provision
under WIS. STAT. § 939.66 that provides a lesser-included offense to conspiracy to
commit first-degree intentional homicide. Although Reed identified some case
law in his motion regarding lesser-included offenses to first-degree intentional
homicide, he did not analogize those cases to the conspiracy offense at issue in
this case or explain how those cases would otherwise apply. Reed’s allegations
that he could have been convicted of a lesser-included offense are therefore
conclusory and undeveloped. Accordingly, the circuit court was not required to
hold a Machner hearing to address Reed’s conclusory allegations. See Phillips,
322 Wis. 2d 576, ¶17.

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No. 2020AP1897-CR

¶41 Finally, Reed argues that his counsel performed deficiently by
failing to correct the circuit court’s misunderstanding that the crime was
“completely and totally [Reed’s] fault.” The record, however, conclusively
establishes that the court was well aware of how other individuals were culpable
as well. The court immediately acknowledged that the crime was “[Kirschner’s
and Evert’s] fault too” and that “[Kirschner is] the driving force here.” As a
result, Reed was not entitled to a Machner hearing on this claim because he
cannot show any deficient performance or prejudice.

III. Improper sentencing factors

¶42 Our review of a circuit court’s sentencing decision is limited to
determining whether the court erroneously exercised its discretion. State v.
Gallion, 2004 WI 42, ¶17, 270 Wis. 2d 535, 678 N.W.2d 197. A court
erroneously exercises its sentencing discretion by relying on “clearly irrelevant or
improper factors.” State v. Williams, 2018 WI 59, ¶45, 381 Wis. 2d 661, 912
N.W.2d 373 (citation omitted). To show reliance on an improper factor, a
defendant must prove, by clear and convincing evidence, that the factor was
improper and that the court actually relied on it. Id. When sentencing a
defendant, a circuit court cannot rely on inaccurate information. Id., ¶46.
Information is “inaccurate” if it is “extensively and materially false,” not simply
incomplete or disputed. See State v. Travis, 2013 WI 38, ¶¶17-18, 347 Wis. 2d
142, 832 N.W.2d 491.

¶43 Reed argues that the circuit court relied on an improper factor by
“assum[ing he] had been convicted of numerous felonies when the ambiguous
information provided in the PSI didn’t support this assumption.” He contends that

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No. 2020AP1897-CR

the court should have further investigated his criminal history, “particularly when
it appears certain arrests, ultimately, led to no convictions whatsoever.”

¶44 Although Reed criticizes the circuit court’s general reliance on his
criminal history, he has not identified any specific information that was inaccurate
in the PSI or in the court’s discussion of his criminal history. Reed also has not
explained which of the cases noted in the PSI involved only an arrest and not a
conviction, as he contends. Even Reed’s argument seems to recognize that the
information in the PSI might be better characterized as “ambiguous,” unclear, or
vague instead of inaccurate. Indeed, the PSI expressly stated that the dispositions
of some of the cases were “[u]nknown” or “not reported.” Reed may disagree
with the court’s understanding of his criminal history, but he has not put forth any
evidence—and certainly not clear and convincing evidence—to show that the
court’s understanding was inaccurate—much less extensively and materially so.
Accordingly, Reed has failed to meet his burden of proving that the court relied on
inaccurate information regarding his criminal history.

¶45 In addition, to the extent Reed renews his arguments that the circuit
court should have held an evidentiary hearing on his claim that the court relied on
inaccurate information about his criminal history, we disagree. Reed alleged in his
postconviction motion that the PSI’s discussion of the number and type of
convictions in Illinois “is apparently inaccurate and attempts to clarify his record
[have] not yet concluded.” (Emphasis added.) Again, Reed did not identify what
information was purportedly inaccurate. Reed’s allegations were therefore
conclusory and undeveloped. As such, the court did not erroneously exercise its
discretion by denying Reed’s request for an evidentiary hearing. See State v.
Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433 (“[I]f the

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[postconviction] motion … presents only conclusory allegations, … the circuit
court has the discretion to grant or deny a hearing.”).

¶46 Reed also argues that the circuit court “improperly and inaccurately
interpreted” the sentence recommendation of the PSI author. He contends that the
PSI author recommended only the maximum amount of confinement under the
DOC recommendation grid, not the statutory maximum sentence for the offense
charged. As noted earlier, however, the court understood the DOC’s formal
sentence recommendation in the PSI, which was thirteen years’ initial confinement
and six years’ extended supervision. Although the court inferred that the PSI
author was personally recommending a lengthier sentence by agreeing with Joey’s
recommendation, Reed has not sufficiently shown—i.e., by clear and convincing
evidence—that the court’s interpretation was manifestly inaccurate or improper.

¶47 Reed directs our attention to emails between his appellate counsel
and the PSI author, but he fails to explain how those later-written emails
“establish[] the court’s interpretation was inaccurate.” Indeed, Reed does not
quote or highlight any of the statements made in the PSI author’s emails. Reed’s
arguments are therefore underdeveloped, and we will not abandon our neutrality to
develop Reed’s arguments for him. See Industrial Risk Insurers v. American
Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82.
Even if we could, our review of the emails does not reveal any clear and
convincing evidence that the circuit court’s inference regarding the PSI author’s
comments was extensively and materially false.

¶48 Reed next argues that the circuit court relied on an improper factor
by comparing the DOC’s sentence recommendation in Reed’s case to past
sentence recommendations by the DOC. Reed, however, fails to cite any legal

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authority in support of his proposition that a circuit court cannot consider its
experience in its sentencing decisions. Thus, we need not address this argument.
See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (we
need not address undeveloped arguments with no supporting legal authority).
Regardless, a circuit court is not prohibited from considering its criminal
sentencing experience when determining whether a certain sentence is appropriate.
See State v. Ogden, 199 Wis. 2d 566, 573, 544 N.W.2d 574 (1996).

IV. New Factor

¶49 In determining whether to modify a sentence on the basis of a new
factor, a circuit court considers: (1) whether the defendant has shown the
existence of a new factor by clear and convincing evidence; and (2) whether the
new factor justifies modification of the sentence. State v. Harbor, 2011 WI 28,
¶¶36-37, 333 Wis. 2d 53, 797 N.W.2d 828. If a court determines that the facts do
not constitute a new factor, the court need not address the second inquiry.
Id., ¶38. A “new factor” is defined as

a fact or set of facts highly relevant to the imposition of
sentence, but not known to the trial judge at the time of
original sentencing, either because it was not then in
existence or because, even though it was then in existence,
it was unknowingly overlooked by all of the parties.

Id., ¶40 (citation omitted). Whether a new factor exists is a question of law that
we review de novo. Id., ¶33.

¶50 Reed argues that his “full cooperation” in the State’s prosecution of
Evert is a new factor. In particular, Reed contends that the circuit court did not
know at the time of sentencing that he would reject Evert’s request that Reed not

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testify in Evert’s criminal case involving conspiracy to commit first-degree
intentional homicide. Reed’s argument is misplaced.

¶51 Reed’s cooperation with law enforcement and his anticipated
assistance were well known at the time of sentencing. The State informed the
circuit court at both the plea and sentencing hearings that Reed agreed to
cooperate with law enforcement as part of his plea agreement. At the sentencing
hearing, the State specifically stated that Reed “did meet with law enforcement.
He did cooperate, and he’s agreed to give testimony against the others as part of
this agreement here.” The court subsequently acknowledged Reed’s cooperation
during its sentencing remarks.

¶52 Although the circuit court may not have specifically known at
sentencing that Reed would reject Evert’s request not to testify, the court
undoubtedly knew that Reed would be likely providing some form of assistance to
law enforcement in the future. Moreover, the fact that Reed might face pressure
not to testify and that Reed would resist that pressure could be reasonably
expected, especially given the gravity of Evert’s offense and Reed’s obligation
under the plea agreement to testify. Thus, Reed’s assistance was neither unknown
nor “highly relevant” to the imposition of his sentence because the court
considered Reed’s cooperation and factored it into Reed’s sentence accordingly.
See id., ¶40. For those reasons, Reed has failed to establish the existence of a new
factor.

By the Court.—Judgment and orders affirmed.

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

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