State v. Chad M. Potrykus

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.
July 3, 2024
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. § 808.10
and RULE 809.62.

Appeal No. 2023AP77-CR Cir. Ct. No. 2017CF122

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CHAD M. POTRYKUS,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Waukesha County: BRAD D. SCHIMEL and LLOYD V. CARTER, Judges.
Affirmed.

Before Gundrum, P.J., Neubauer and Grogan, 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).
No. 2023AP77-CR

¶1 PER CURIAM. Chad M. Potrykus appeals from a judgment of
conviction for burglary and an order that denied his postconviction motion for
resentencing without an evidentiary hearing.1 Potrykus argues that he is entitled to
resentencing because: (1) the sentencing court relied on inaccurate information at
sentencing; and (2) his trial counsel was ineffective by failing to object to the
inaccurate information during the sentencing hearing. For the reasons set forth in
this opinion, we reject Potrykus’ arguments and summarily affirm.

¶2 The parties do not dispute the basic facts pertinent to this appeal.
Potrykus pled no contest to burglary. The circuit court withheld sentence and
placed Potrykus on probation. The Department of Corrections (DOC) later
revoked Potrykus’ probation for his involvement in criminal activities in Douglas
County on January 6, 2021. The revocation packet prepared by the DOC also
included information from a sheriff’s investigator related to a search on October 9,
2020 at an apartment where Potrykus’ personal identifying information was found.
On sentencing after revocation, the court imposed five years of initial confinement
and three years of extended supervision.

¶3 Potrykus moved for resentencing on the grounds that the sentencing
court relied on inaccurate information and that his trial counsel was ineffective for
not objecting when the court referred to the inaccurate information before
imposing sentence. On review, the postconviction court summarily denied
resentencing without an evidentiary hearing. It held that the sentencing court did
not rely on inaccurate information and, for that reason, Potrykus would be unable

1
The Hon. Brad D. Schimel presided over Potrykus’ original sentencing hearing and
sentencing after revocation. The Hon. Lloyd V. Carter presided over the postconviction hearing
on the motion for resentencing.

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No. 2023AP77-CR

to prove ineffective assistance of counsel at an evidentiary hearing. Potrykus
appeals.

¶4 Potrykus argues that there were two pieces of inaccurate information
that the sentencing court considered in violation of his constitutional right to due
process: (1) that he possessed a gun on October 9, 2020; and (2) that he was
involved in drug trafficking on October 9, 2020. Potrykus further argues that his
trial counsel was ineffective for not pointing out the inaccurate information to the
sentencing court and for not discovering an informant’s statement in a sheriff
investigator’s report indicating that Potrykus was not involved in drug trafficking
out of the apartment.2 Potrykus asserts that he is entitled to an evidentiary hearing
on the ineffective assistance of counsel claim. The State responds that the
sentencing court did not rely on inaccurate information and, therefore, trial
counsel was not ineffective for failing to object to the information at the
sentencing after revocation hearing.

¶5 “A defendant has a constitutionally protected due process right to be
sentenced upon accurate information.” State v. Tiepelman, 2006 WI 66, ¶9, 291
Wis. 2d 179, 717 N.W.2d 1. Whether the defendant was denied that right is a
constitutional question that we review de novo. Id.

2
In briefing, Potrykus asserts that the sentencing court held him responsible for violating
a condition of probation that was not verbally stated on the record but was included in the written
judgment of conviction—namely, that he not associate with known drug users or drug traffickers.
However, the transcript of the sentencing after revocation hearing does not support a conclusion
that the sentencing court imposed a harsher sentence based on a violation of this, or any,
condition in particular. The DOC revoked Potrykus’ probation for his possession of a firearm and
methamphetamine on January 6, 2021. This was the information on which the court relied. The
record is clear that the danger to the community based on Potrykus’ continued involvement with
firearms and drugs drove his sentence after revocation, not the fact that he violated a particular
probation condition set by the court.

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No. 2023AP77-CR

¶6 A defendant seeking resentencing “must show by clear and
convincing evidence that: (1) some information at the original sentencing was
inaccurate, and (2) the circuit court actually relied on the inaccurate information at
sentencing.” State v. Coffee, 2020 WI 1, ¶38, 389 Wis. 2d 627, 937 N.W.2d 579.
If “the defendant shows actual reliance on inaccurate information, the burden then
shifts to the State to prove the error was harmless.” State v. Travis, 2013 WI 38,
¶23, 347 Wis. 2d 142, 832 N.W.2d 491. “A reviewing court must independently
review the record of the sentencing hearing to determine the existence of any
actual reliance on inaccurate information.” Id., ¶48. “We review the circuit
court’s articulation of its basis for sentencing in the context of the entire
sentencing transcript[.]” State v. Alexander, 2015 WI 6, ¶25, 360 Wis. 2d 292,
858 N.W.2d 662.

¶7 As did the postconviction court, we begin by turning to the record on
the sentencing court’s remarks. The court properly addressed the three required
sentencing objectives: the seriousness of the offense (explaining that the
underlying burglary offense “was serious because an AR15 rifle was stolen and
because of your actions was put into illegal circulation”); Potrykus’ character
(noting his extensive criminal history and that the court had granted probation
because Potrykus “had some successes” in the past, but, with Potrykus’ pending
charges related to being pulled over “now we are dealing with guns and drugs
again”); and the need to protect the public (observing that the burglary for which
Potrykus was being sentenced after revocation “was one that there was a
significant danger to the community and need to protect the community from
you”).

¶8 The sentencing court also addressed Potrykus’ rehabilitation need. It
concluded, based on Potrykus’ numerous failed attempts at probation throughout

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No. 2023AP77-CR

his criminal career, that it had “no choice but to have that rehabilitation need be
addressed in a confined setting.”

¶9 After reciting Potrykus’ lengthy criminal record and history of
repeated failure on supervision, the sentencing court discussed the January 6, 2021
incident. It stated:

On January 6th of this year when you’re pulled over in
that vehicle, you say you don’t know anything about the
things in the vehicle. Another person in the car says
otherwise. It’s often familiar because now we are dealing
with guns and drugs again. Best case scenario you’re
hanging around with known drug users again.

¶10 The court was aware that charges arising out of that incident were
pending in Douglas County at that time.3 Potrykus does not challenge the
accuracy of anything in connection with the January 6 incident.

¶11 The sentencing court then discussed the October 9, 2020 search of
the apartment in Superior where Potrykus was staying. It is information related to
this search that Potrykus argues was inaccurately presented to the court. Related
to this incident, the court accurately noted that Potrykus was “in places where drug
trafficking was going on.” However, the court acknowledged, as defense counsel
had earlier pointed out, that Potrykus was not charged with any offense in
connection with that residence. The court observed, again accurately, that the
search produced “all sorts of things. And again, a gun involved.” It was only at
this point where the court misstated that Potrykus’ personal identifiers were found

3
Eighteen days after he was sentenced after revocation in this case, Potrykus pled no
contest to, and was convicted in Douglas County Circuit Court of, possession of a firearm by a
convicted felon as a repeat offender and possession of methamphetamine, both in connection with
the January 6, 2021 incident.

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No. 2023AP77-CR

inside a drawer that also contained a gun. Defense counsel did not object or
correct the court. As he did at the postconviction hearing, Potrykus argues on
appeal that this misstatement by the court and counsel’s failure to object entitle
him to resentencing or, in the alternative, an evidentiary hearing on counsel’s
alleged ineffectiveness.

¶12 Although the sentencing court did misstate that Potrykus’ identifiers
were found in a drawer with the gun, that misstatement was not far off the mark.
The sheriff investigator’s report, which was included in the revocation packet,
revealed that Potrykus’ personal identifiers were found in a kitchen drawer that
also contained a baggie of marijuana. No gun was found in that drawer, but a
detective “located a silver handgun magazine inside of a kitchen drawer”
(presumably not the drawer with Potrykus’ identifiers) during the search. There
was also evidence that Potrykus lived in the home, and at least two of the homes’
residents were charged with drug trafficking, meaning that Potrykus had
associated with drug traffickers while he was on probation. The court was
therefore not mistaken in observing that Potrykus had affiliated with drug
traffickers during this time period. Thus, the only inaccuracy in the sentencing
court’s statements was that the handgun magazine was actually found in another
kitchen drawer, rather than in the drawer with a baggie of marijuana and Potrykus’
personal identifiers.

¶13 In imposing a sentence, “[t]he [circuit] court considers a variety of
factors because it has a responsibility ‘to acquire full knowledge of the character
and behavior pattern of the convicted defendant before imposing sentence.’” State
v. Salas Gayton, 2016 WI 58, ¶23, 370 Wis. 2d 264, 882 N.W.2d 459 (citation
omitted). “The sentencing court … must be permitted to consider any and all
information that reasonably might bear on the proper sentence for the particular

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No. 2023AP77-CR

defendant, given the crime committed.” Id. (citation omitted). Therefore, the
scope of the information a court may consider includes “not only ‘uncharged and
unproven offenses’ but also facts related to offenses for which the defendant has
been acquitted.” Id. (citations omitted). Such was the case here. There is no
indication that either the investigator’s report or the revocation packet indicated
that Potrykus himself was involved in drug trafficking or keeping firearms at the
residence. It indicated that other residents of the home were so involved, and it
was not unreasonable for the sentencing court to infer that Potrykus associated
with those people, particularly because the report indicated that several personal
identifiers of Potrykus’ were found in the home.

¶14 In sum, there is no indication that the information provided to the
sentencing court contained inaccuracies. Potrykus’ sentence was based entirely on
accurate information―relative to both the October 9, 2020 search results and
Potrykus’ crimes on January 6, 2021―showing that he continued to associate with
drug users and traffickers, he possessed and used drugs, and drove a car on
January 6, 2021 with a loaded firearm and methamphetamine in the trunk. The
sentence was not based on a finding that Potrykus either possessed a firearm or
engaged in drug trafficking in October 2020. Further, Potrykus has not shown that
the court’s misstatement that Potrykus’ identifiers were found in a kitchen drawer
with a gun had any bearing on the sentence.

¶15 Simply put, there is no evidence that the sentencing court either
received or relied on inaccurate information when imposing sentence. We
therefore conclude that Potrykus fails to satisfy his burden to show by clear and
convincing evidence that inaccurate information was presented to the court at
sentencing and that the court relied upon this information. Coffee, 389 Wis. 2d
627, ¶38. Accordingly, Potrykus’ constitutional right to due process was not

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No. 2023AP77-CR

violated. Tiepelman, 291 Wis. 2d 179, ¶9. He is not entitled to resentencing, and
his postconviction claim fails.

¶16 Potrykus also argues that his trial counsel was ineffective by failing
to object to the allegedly inaccurate information provided at sentencing. He
asserts that he was prejudiced by his counsel’s deficient performance because
there is a reasonable probability that the court would have imposed a lesser
sentence absent the inaccurate information. See Strickland v. Washington, 466
U.S. 668, 690, 694 (1984) (claim of ineffective assistance of counsel must show
that counsel’s performance was deficient and prejudiced the defendant, that is, that
“there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different”). This court need not address
both prongs if the defendant fails to make a showing on one of them. See id. at
697.

¶17 As an initial matter, contrary to Potrykus’ assertions, we observe that
trial counsel did point out inaccuracies in the revocation packet related to the
October 2020 incident. Counsel explained as follows:

There is a lengthy part of the revocation packet that
references an incident from October 9th of 2020 in which
drugs, money and a gun were found in my client’s
residence … It wasn’t his residence. He was roommates
with two other individuals. I think it should be noted that
no criminal charges were filed as a result of that incident.

¶18 As stated above, the sentencing court made a point to repeat
counsel’s statement that Potrykus was not charged with any offenses related to the
October 2020 incident. Nonetheless, Potrykus argues that he was prejudiced by
counsel’s failure to correct the court in its statements that a gun, rather than

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No. 2023AP77-CR

marijuana, was found in a drawer with Potrykus’ identifiers and that Potrykus
associated with drug traffickers.

¶19 Here, the prejudice inquiry is intertwined with the inaccurate
sentencing claim. See Alexander, 360 Wis. 2d 292, ¶¶38-39. As we concluded
above, Potrykus has not established that inaccurate information was presented at
sentencing, nor was there evidence that the sentencing court relied on inaccurate
information. We conclude that Potrykus has failed to make a showing of prejudice
because he cannot show the resulting sentence would likely have been different.
Without a showing of prejudice, we need not address whether trial counsel’s
performance was deficient. See id., ¶39. Potrykus’ ineffectiveness claim fails.

¶20 Finally, we conclude that the postconviction court acted within its
discretion to deny Potrykus’ postconviction motion without an evidentiary
hearing. See State v. Ruffin, 2022 WI 34, ¶28, 401 Wis. 2d 619, 974 N.W.2d 432.
The record conclusively demonstrates that Potrykus was not entitled to
postconviction relief. See State v. Jackson, 2023 WI 3, ¶8, 405 Wis. 2d 458, 983
N.W.2d 608.

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No. 2023AP77-CR

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5 (2021-22).

10