State v. William Scott Latta

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 15, 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. 2022AP2188-CR Cir. Ct. No. 2020CF208

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

WILLIAM SCOTT LATTA,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Green County: FAUN MARIE PHILLIPSON, Judge. Affirmed.

Before Blanchard, Graham, and Taylor, 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. 2022AP2188-CR

¶1 PER CURIAM. William Scott Latta appeals a judgment of
conviction and an order denying his postconviction motion. In that motion, Latta
argued that the circuit court erred in failing to hold a presentence “evidentiary
hearing” on alleged inaccuracies in the Pre-Sentence Investigation report (PSI)
prepared by the state Department of Corrections. In the alternative, Latta argued
that his trial counsel was constitutionally ineffective in failing to request a
presentence evidentiary hearing to resolve the alleged inaccuracies in the PSI and
in failing to object at sentencing to the court’s alleged reliance on these
inaccuracies. As remedies, Latta requested a postconviction evidentiary hearing
that he argued would lead to resentencing.

¶2 On appeal, Latta argues that the circuit court erred in failing to hold
a postconviction evidentiary hearing regarding the alleged errors in the PSI or, in
the alternative, a Machner hearing on his ineffective assistance of trial counsel
claim.1 We conclude that, because material portions of the record conclusively
demonstrate that he is not entitled to relief, he was not entitled to a postconviction
hearing under either claim. Accordingly, we affirm.

BACKGROUND

¶3 In 2020, Latta was charged with multiple counts of sexually
assaulting A.F.B., his step-granddaughter who was then twelve years old, over
approximately eighteen months. Latta’s charges included three counts of first-
degree sexual assault for sexual contact with a child under age thirteen; attempted

1
“A Machner hearing is ‘[t]he evidentiary hearing to evaluate counsel’s effectiveness,
which includes counsel’s testimony to explain his or her handling of the case.’” State v. Domke,
2011 WI 95, ¶20 n.5, 337 Wis. 2d 268, 805 N.W.2d 364 (citation omitted); see also State v.
Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

2
No. 2022AP2188-CR

first-degree sexual assault for sexual contact with a child under age thirteen; two
counts of exposing a child to harmful material; and victim intimidation for
dissuading her from reporting the crimes.2 Latta was also charged with two counts
of repeated acts of physical abuse, causing bodily harm to A.F.B. and her then
seventeen-year-old sister R.G.B. In a separate criminal case, Latta was charged
with two counts of felony bail jumping after he allegedly contacted two minor
juveniles in violation of his bond condition that prohibited him from having
intentional contact with minors.

¶4 A.F.B.’s allegations included multiple accounts of Latta grabbing
her breasts, vagina, and butt over her clothes; forcing her to lie on top of him while
he touched her breasts under her clothes; hugging her inappropriately; giving her
two vibrators; asking her to take nude pictures of herself and send them to him;
exposing her to pornography; physically abusing her, and instructing her to remain
silent about his conduct. R.G.B. reported that, among other things, Latta
physically abused her.

¶5 In December 2021, Latta pled no contest to, and was found guilty of,
one count of first-degree sexual assault for sexual contact with a child under the
age of 13. In exchange for his plea, the prosecution agreed to dismiss and read in
the eight remaining charges and the two felony bail jumping charges in Latta’s
other criminal case. At the plea hearing, the parties summarized a joint sentencing
recommendation, which included that the circuit court withhold sentence and

2
Pursuant to WIS. STAT. RULE 809.86(4) (2021-22), and consistent with the parties’
briefing to this court, we refer to the victims by the initials used in the criminal complaint.

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

3
No. 2022AP2188-CR

place Latta on ten years of probation with one year of conditional jail time. The
court explicitly told Latta during the plea hearing—and Latta acknowledged in a
signed plea questionnaire—that the court was not required to accept the parties’
joint sentencing recommendation and could impose the maximum penalty of up to
sixty years of imprisonment.

¶6 The parties recommended, and the circuit court ordered, a PSI,
which was prepared by a Department of Corrections agent (“the agent”) and
submitted to the court one month before the sentencing hearing. In a section with
the heading “Defendant’s Version,” the PSI states, in relevant part:

The defendant claims he did not commit this offense. He
states that he only plead no contest because nobody would
believe him due to the victim’s age. Additionally, he does
state in communication with his step-grandson’s ex-
girlfriend, that the victims are lying and making the
allegations up.… The defendant completely denies that
anything criminal occurred and maintains the idea that he
did nothing wrong.

In another section with the heading “Agent Impressions,” the PSI states that Latta
“refuses to take responsibility for his actions and continually claims the victims
are lying. In addition to taking no responsibility for his actions, the defendant also
shows no remorse whatsoever.” The PSI recommended that, to protect the victims
and the community, Latta be imprisoned for twenty years, with sixteen years of
initial confinement and four years of extended supervision.

¶7 Two weeks before Latta’s scheduled sentencing hearing, Latta
moved the circuit court for an adjournment on the grounds that the PSI “contains a
number of factual inaccuracies that [Latta] wishes to address before the sentencing
hearing.” Although Latta had spoken with his counsel, he had not yet had a
chance to meet with counsel in person. Latta did not identify a specific factual

4
No. 2022AP2188-CR

inaccuracy in the PSI. The prosecution objected to Latta’s adjournment motion
because it failed to detail what corrections were needed and why they could not be
timely addressed before or at the sentencing hearing. The court denied the motion
and instead ordered Latta to file a written description of the requested corrections
or clarifications to the PSI. The court stated that it would address any PSI disputes
at the sentencing hearing.

¶8 Latta subsequently filed a 43-page submission, including a letter that
was essentially a sentencing memorandum and a psychosexual forensic
assessment of Latta performed by defense expert Dr. Sharon Kelley, a clinical
psychologist.3 In this memorandum, Latta primarily focused on supporting the
parties’ joint sentencing recommendation and discrediting the sentencing
recommendation in the PSI. He only briefly addressed alleged factual
inaccuracies in the PSI, including statements in the PSI under the “Agent
Impressions” section that he “refuses to take responsibility for his actions” and
“shows no remorse.” According to Latta’s submission, these impressions were
“based on information contained earlier-on in the PS[I] which misstates [Latta’s]
actual statements—none of which are attributed to him by the use of quotes.”
However, Latta identified only one statement in the PSI as being erroneously
attributed to him, namely, the statement that Latta “does state in communication
with his step-grandson’s ex-girlfriend that the victims are lying and making this
up.” Latta alleged that this was a statement made by a third party and incorrectly
attributed to him.

3
Although a sentencing memorandum is similar in content to a court-ordered PSI, it is
ordinarily prepared by a person retained by the defendant who advocates for the defendant’s
sentencing position. State v. Greve, 2004 WI 69, ¶12, 272 Wis. 2d 444, 681 N.W.2d 479.

5
No. 2022AP2188-CR

¶9 The agent appeared virtually at the February 2022 sentencing
hearing. The parties questioned the agent about statements she attributed to Latta
in the PSI. The agent said that she had two phone conversations with Latta and
that Latta had provided written answers to a questionnaire. The agent
acknowledged that Latta chose not to fill out the “Defendant’s Version” section on
the PSI questionnaire. During one of their phone conversations, the agent said that
Latta declined to provide his “entire version” of his criminal conduct. As a result,
she completed this section of the PSI by “paraphras[ing]” the “snip-its” of
information that Latta relayed to her during one of these phone conversations,
including his statements that he denied any criminal conduct and that he pled no
contest only because he thought nobody would believe he was innocent due to the
victim’s age. The agent said that she had also interviewed Latta’s wife while
preparing the PSI. The agent acknowledged that she recorded the contents of her
conversations with Latta and with his wife by writing notes on undated “Post-it
Notes,” but said that she did not mix up these conversations and misattribute
statements made by Latta’s wife to Latta.

¶10 The only evidence or discussion regarding alleged inaccuracies in
the PSI during the sentencing hearing consisted of the agent’s statements, just
summarized. Latta did not attempt to rebut these statements through other
witnesses or evidence, nor did he request that the circuit court strike or not
consider any portion of the PSI.

¶11 Following the parties’ questioning of the agent, A.F.B. addressed the
circuit court. She said that she and her sister “grew up thinking [that] everything
he has done was just normal,” and that as children they were seeking “a father
figure” and “he took advantage of that.” A.F.B. said that Latta’s conduct scared

6
No. 2022AP2188-CR

her and turned her life “upside down.” She concluded her remarks by saying “[i]n
my opinion this man is just a danger to your kids.”

¶12 In his allocution, Latta said that he accepted responsibility for his
actions and admitted that he committed the conduct described in the criminal
complaint. He said that his conduct would make “any teenage girl
uncomfortable,” that he did not respect “boundaries,” and that he hurt the victims
with his actions. He apologized to his family and said that he was “ready to start
counseling.”

¶13 The circuit court did not adopt the entirety of the parties’ joint
sentencing recommendation nor the sentencing recommendation in the PSI.
Instead, the court imposed fourteen years of imprisonment, consisting of four
years of initial confinement and ten years of extended supervision. In imposing
this sentence, the court primarily relied upon the gravity of the offense and the
need to protect the public. The court’s sentencing decision is described in more
detail later in this opinion.

¶14 After sentencing, Latta filed a postconviction motion requesting an
evidentiary hearing and resentencing. First, Latta contended that the circuit court
erred by failing to hold what he described as a “required” presentence evidentiary
hearing concerning the accuracy of certain statements in the PSI and by failing to
make express findings about these statements prior to issuing its sentence. In an
affidavit attached to his postconviction motion, Latta averred that he had not made
some of the statements to the agent that she attributed to him in the PSI, as
discussed in more detail below. Latta asked the court to correct the error “by
holding the required hearing [postconviction],” and then by resentencing him
based on accurate information.

7
No. 2022AP2188-CR

¶15 In the alternative, Latta argued that he is entitled to resentencing
because his trial counsel was ineffective for failing to request a presentence
evidentiary hearing on the alleged inaccuracies in the PSI, not moving to strike or
requesting other remedies regarding the alleged inaccuracies, and not objecting to
the circuit court’s “reliance” on the inaccuracies at sentencing. Latta requested a
Machner hearing on these claims.

¶16 In a written order, the circuit court denied Latta’s postconviction
motion without holding a hearing. The court stated that Latta’s sentence was
based on the required sentencing factors under State v. Gallion, 2004 WI 42, 270
Wis. 2d 535, 678 N.W.2d 197, especially the seriousness of the offense and the
need to protect the public. The court acknowledged that its sentencing decision
referenced the statement in the PSI that Latta refused to take responsibility for his
actions, but the court explained that it balanced this information with Latta’s
sentencing statement that he accepted responsibility for his criminal conduct. The
court further stated that, in any case, Latta’s acceptance or non-acceptance of
responsibility was not a deciding nor critical factor at sentencing.

¶17 The circuit court also rejected Latta’s ineffective assistance of trial
counsel claim, reasoning that counsel had performed effectively in most aspects of
his representation. The court continued that, even if Latta’s trial counsel was
deficient in failing to seek an evidentiary hearing regarding the alleged
inaccuracies in the PSI, that deficiency did not prejudice Latta because the court
“ultimately sentenced Mr. Latta in accordance with what the Court believes to be
appropriate.” Latta appeals.

8
No. 2022AP2188-CR

DISCUSSION

¶18 On appeal, Latta repeatedly asserts that he is not asking this court to
determine that he is entitled to resentencing and that he is appealing only the
circuit court’s denial of his postconviction motion without holding an evidentiary
hearing.4 Latta argues that he is entitled to a postconviction evidentiary hearing on
the alleged inaccuracies in the PSI because he has a due process right to be
sentenced on accurate information. In the alternative, Latta argues that the circuit
court erred in denying his postconviction ineffective assistance of trial counsel
claim without holding a Machner hearing because trial counsel should have
demanded that the court hold a presentence evidentiary hearing on the disputed
statements in the PSI or requested other relief regarding these inaccuracies before
sentencing. We address both arguments in turn.

I. Standard of Review.

¶19 A circuit court must hold a hearing on a postconviction motion,
including a Machner hearing, if the defendant’s motion establishes sufficient
material and non-conclusory facts, that, if true, would entitle the defendant to
relief, and the record does not conclusively establish otherwise. State v. Jackson,
2023 WI 3, ¶8, 405 Wis. 2d 458, 983 N.W.2d 608. “Conversely, ‘[i]f the motion
does not raise facts sufficient to entitle the defendant to relief, or if it presents only
conclusory allegations, or if the record conclusively demonstrates that the
defendant is not entitled to relief, the circuit court has the discretion to grant or
deny a hearing.’” Id. (citation omitted).

4
Because Latta’s sole request on appeal is for this court to order a postconviction
hearing, we will not consider Latta’s resentencing request raised in his postconviction motion.

9
No. 2022AP2188-CR

¶20 If the record conclusively demonstrates that the defendant is not
entitled to relief, it is within the circuit court’s discretion to conduct an evidentiary
hearing on a postconviction motion. State v. Ruffin, 2022 WI 34, ¶28, 401 Wis.
2d 619, 974 N.W.2d 432. Whether the record conclusively demonstrates that the
defendant is entitled to no relief is an issue of law we review independently. Id.,
¶27.

II. The Circuit Court Did Not Err in Denying Latta’s Motion on the
Accuracy of the PSI Without a Postconviction Evidentiary Hearing.

¶21 On appeal, Latta argues that the circuit court erroneously denied his
postconviction motion without an evidentiary hearing regarding certain statements
attributed to him in the PSI and the agent’s assertions that he refused to take
responsibility for his conduct. Specifically, Latta’s postconviction motion alleged
that the following portions of the “Defendant’s Version” section of the PSI are
false: “[Latta] claims that he did not commit this offense”; “[Latta] states that he
only plead no contest because nobody would believe him due to the victim’s age”;
“[Latta] completely denies that anything criminal occurred and maintains the idea
that he did nothing wrong”; and “[Latta] does state in communication with his step
grandson’s ex-girlfriend, that the victims are lying and making the allegations up.”
The motion does not argue that Latta never made such statements, but instead
argues that he did not make these statements to the agent or to any third parties
following his plea.

¶22 As best as we can tell from Latta’s briefing on appeal, he contends
that, because the circuit court allegedly failed in its duty to rule on whether the PSI
was accurate and to assess the agent’s credibility, he is entitled to a postconviction
evidentiary hearing on the alleged inaccuracies in the PSI. We disagree. As
discussed in more detail below, we conclude that the material parts of the record

10
No. 2022AP2188-CR

conclusively show that Latta is not entitled to relief. Therefore, it was not error
for the court to deny Latta’s postconviction motion without holding a hearing
regarding the alleged inaccuracies.

A. Latta Is Not Entitled to a Postconviction Evidentiary Hearing
Under Melton.

¶23 After a felony conviction but before sentencing, a circuit court has
the discretion to order that the Department of Corrections prepare a PSI addressing
aspects of the case relevant to sentencing. See State v. Melton, 2013 WI 65, ¶26,
349 Wis. 2d 48, 834 N.W.2d 345 (citing WIS. STAT. § 972.15(1)). “The primary
purpose of a PSI is ‘to provide the sentencing court with accurate and relevant
information upon which to base its sentencing decision.’” Id. (citation omitted).
To protect the integrity of the sentencing process and to ensure that the sentencing
court bases its decision on reliable information, the court is required to “disclose
the contents of the [PSI] to the defendant’s attorney and to the district attorney
prior to sentencing.”5 Sec. 972.15(2). Because a defendant has a constitutional
due process right to be sentenced on accurate information, the defendant has the
“right to challenge any statement in the PSI he or she believes is inaccurate or
incomplete” and the defendant must be given the opportunity to refute allegedly
inaccurate information. State v. Greve, 2004 WI 69, ¶11, 272 Wis. 2d 444, 681
N.W.2d 479; State v. Perez, 170 Wis. 2d 130, 141, 487 N.W.2d 630 (Ct. App.
1992).

¶24 Latta’s postconviction motion asserted that the alleged inaccuracies
in the PSI identified in his sentencing memorandum “made it clear” that he was

5
If a defendant is not represented, the PSI shall be disclosed to the defendant. See WIS.
STAT. § 972.15(2).

11
No. 2022AP2188-CR

challenging the accuracy of the statements attributed to him in the PSI and the
agent’s conclusion that he refused to take responsibility for his criminal conduct.
The motion contended that Latta’s sentencing memorandum “triggered a duty of
the Court to ‘rule [whether] the information [was] accurate’ and to assess [the
agent’s] credibility.”6 Because the circuit court failed to perform this alleged
required function, Latta argued, he is entitled to such a hearing postconviction. In
support of his position, Latta relied on a portion of our supreme court’s decision in
Melton, which states: “In the event the defendant wishes to contest any of the
factual matters set forth in a PSI, the defendant is entitled to an evidentiary hearing
where evidence regarding the issue in controversy may be presented by the State
or the defendant.” Melton, 349 Wis. 2d 48, ¶65 (citation omitted).

¶25 Contrary to Latta’s argument, Melton does not control our analysis
of whether a postconviction motion necessitated an evidentiary hearing. In
Melton, after concluding that a circuit court does not have authority to destroy an
inaccurate PSI, our supreme court set forth presentence procedures “that ought to
be employed when a party disputes a PSI.” Id., ¶¶25, 64. Specifically, “the
defendant should file a motion with the court (1) identifying specific problems
with the PSI, and (2) requesting specific remedies to deal with those problems.”
Id., ¶66. “The remedies requested in the motion should be tailored to the
problems alleged” and could include striking, redacting, or otherwise not

6
At one point in Latta’s appellate briefing, he states that because the “PSI was among
the criteria upon which [the court] relied in deciding Mr. Latta’s sentence, it was required to hold
a hearing to determine the accuracy of the PSI.” Latta appears to argue that, whenever a
defendant alleges that there is any error in a PSI, this automatically precludes the circuit court
from relying on the other portions of the PSI. Because Latta does not support this argument with
any legal authority, we need not consider it further. State v. Pettit, 171 Wis. 2d 627, 646, 492
N.W.2d 633 (Ct. App. 1992).

12
No. 2022AP2188-CR

considering the contested PSI portions at sentencing. Id., ¶¶69, 71. Not only does
Latta concede that he did not follow the presentence procedures recommended in
Melton to secure a hearing on alleged inaccuracies in the PSI, but Latta’s
application of Melton to the postconviction setting also conflicts with the well-
established standards that appellate courts apply, as set forth above, when
determining whether an evidentiary hearing is required for a postconviction
motion. Thus, we conclude that Melton did not entitle Latta to an evidentiary
hearing on his postconviction motion.

B. Latta Is Not Entitled to a Postconviction Evidentiary Hearing
Under Allen.

¶26 Under the framework for determining whether an evidentiary
hearing is required for a postconviction motion, as set forth above, “if the
[postconviction] motion does not raise facts sufficient to entitle the movant to
relief, or presents only conclusory allegations, or if the record conclusively
demonstrates that the defendant is not entitled to relief, the circuit court has the
discretion to grant or deny a hearing.” State v. Allen, 2004 WI 106, ¶9, 274 Wis.
2d 568, 682 N.W.2d 433 (citations omitted).

¶27 Because the material portions of the record conclusively demonstrate
that Latta forfeited his argument that he is entitled to an evidentiary hearing on the
alleged inaccuracies in the PSI, we reject Latta’s claim.7

7
Latta’s postconviction motion characterizes trial counsel’s failure to fully resolve the
alleged PSI inaccuracies by seeking a “proper hearing” as a possible “waiver.” This claim,
however, is properly characterized as a “forfeiture.” “Whereas forfeiture is the failure to make
the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a
known right.” State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612 (citation
omitted). “[S]ome rights are forfeited when they are not claimed at trial; a mere failure to object
constitutes a forfeiture of the right on appellate review.” Id., ¶30. Hence, the issue here is not
(continued)

13
No. 2022AP2188-CR

1. Principles of Forfeiture.

¶28 “The [forfeiture] rule is not merely a technicality or a rule of
convenience; it is an essential principle of the orderly administration of justice.”
State v. Huebner, 2000 WI 59, ¶11, 235 Wis. 2d 486, 611 N.W.2d 727. This rule
serves two main objectives. State v. Counihan, 2020 WI 12, ¶¶26, 27, 390 Wis.
2d 172, 938 N.W.2d 530. First, the forfeiture rule serves the efficient
administration of justice by enabling the circuit court “to avoid or correct any error
as it comes up, with minimal disruption of the judicial process and maximum
efficiency,” potentially eliminating the need for appeal. Id., ¶26. Second, the rule
facilitates a fair process because a timely and contemporaneous objection “gives
the parties and the circuit court notice of an issue and a fair opportunity to address
the objection.” Id., ¶27. The rule ensures that these dual objectives are met by
“encourag[ing] attorneys to diligently prepare for and conduct trials” and
“prevent[ing] attorneys from ‘sandbagging’ opposing counsel by failing to object
to an error for strategic reasons and later claiming that the error is grounds for
reversal.” Id. (citing State v. Ndina, 2009 WI 21, ¶30, 315 Wis. 2d 653, 761
N.W.2d 612). Whether a party forfeited an argument is an issue of law that we
review de novo. State v. Mercado, 2021 WI 2, ¶32, 395 Wis. 2d 296, 953 N.W.2d
337.

¶29 Because the forfeiture rule is designed to foster the fair, efficient,
and orderly administration of justice, it should be applied only when its
application would further these purposes. See Counihan, 390 Wis. 2d 172, ¶32.

whether Latta “waived” his right to request an evidentiary hearing or to otherwise rebut the
alleged inaccuracies in the PSI, but whether Latta forfeited such a right.

14
No. 2022AP2188-CR

Hence, there are circumstances in which a reviewing court may determine that it is
“appropriate” to address the merits of an unpreserved issue.8 Id., ¶27. For
example, in Counihan, the Supreme Court declined to apply forfeiture when a
circuit court raised previously unknown information for the first time at sentencing
and trial counsel failed to object. Id., ¶31. The Supreme Court reasoned that
applying forfeiture in that scenario, when the defendant had not had a chance to
investigate or rebut the information, would hinder judicial economy by causing
defendants to seek adjournments in order to investigate new information when
raised by the circuit court at sentencing. Id., ¶32. The Supreme Court
acknowledged that while it would be “best practice” for defense counsel to raise
such issues at the sentencing hearing, “it does not behoove the interests protected
by the forfeiture rule to require such an objection.” Id., ¶33. By contrast, in State
v. Coffee, 2020 WI 1, ¶32, 389 Wis. 2d 627, 937 N.W.2d 579 (lead op.), a
plurality of justices stated that the forfeiture rule ordinarily applies to situations
where the accuracy of a PSI is at issue. The plurality reasoned that when it comes
to contesting a PSI, “defense counsel receives a copy and has the opportunity to
review the PSI with the defendant before the sentencing hearing. And defense
counsel can make a fully-informed and carefully-prepared objection to the
contents of a PSI at sentencing.” Id.

¶30 Thus, in factual situations in which a defendant does not have access
to certain information or the ability to investigate that information prior to
sentencing, the defendant may properly challenge that error by raising it in a

8
A court may also disregard a forfeiture when a fundamental right is at stake, such as the
right to the assistance of counsel, the right to refrain from self-incrimination, and the right to trial
by jury. Ndina, 315 Wis. 2d 653, ¶31. These rights are “so important to a fair trial that courts
have stated that the right is not lost unless the defendant knowingly relinquishes the right.” Id.

15
No. 2022AP2188-CR

postconviction motion. See Counihan, 390 Wis. 2d 172, ¶36 (“Filing a
postconviction motion is a timely means of raising an alleged error by the circuit
court during sentencing.” (citation omitted)); see also Coffee, 389 Wis. 2d 627,
¶31 (lead op.) (“[W]e conclude that the forfeiture rule does not apply to previously
unknown, inaccurate information first raised by the prosecution at sentencing.
Rather, while an objection may be the best practice, a postconviction motion is
also a timely manner in which to assert that claim.”). By contrast, when the
defendant seeks to challenge information contained in the PSI to which the
defendant had access and the ability to rebut in advance of sentencing, the
defendant will ordinarily be precluded from raising that error in a postconviction
motion. See Counihan, 390 Wis. 2d 172, ¶32; State v. Mosley, 201 Wis. 2d 36,
46, 547 N.W.2d 806 (Ct. App. 1996) (“Where the facts stated in a presentence
report are not challenged or disputed by the defendant at the time of sentencing,
the sentencing judge may appropriately consider them.”).

¶31 We now apply these principles to Latta’s postconviction motion.

2. Latta Forfeited His Right to Seek an Evidentiary Hearing.

¶32 The material portions of the record conclusively demonstrate that
Latta is not entitled to relief because he failed to preserve the issue of the accuracy
of the PSI for appellate review. See State v. Pinno, 2014 WI 74, ¶66, 356 Wis. 2d
106, 850 N.W.2d 207 (when the defendant failed to object to the circuit court
closing the court room to the public during voir dire, the circuit court properly
denied his postconviction motion without holding an evidentiary hearing on that
issue).

¶33 As Latta conceded in his postconviction motion, and as the record
conclusively demonstrates, he did not ensure that the accuracy of the PSI was

16
No. 2022AP2188-CR

“fully resolved by a proper hearing” and never requested or moved for an
evidentiary hearing prior to or during sentencing. Latta additionally conceded that
he did not request any remedies from the circuit court regarding the alleged
inaccuracies in the PSI, such as by moving to strike any of the disputed portions.
Latta also conceded that he did not object when the court allegedly relied on the
inaccuracies at sentencing. As summarized above, ten days prior to the sentencing
hearing, Latta was explicitly ordered by the circuit court “to submit in writing any
and all corrections or clarifications” to the PSI. The court specified that “[i]f the
parties are in disagreement as to any such corrections or clarifications, those
corrections or clarifications will be addressed at the sentencing hearing.” See
Melton, 349 Wis. 2d 48, ¶76 (stating that the court may address PSI disputes at the
sentencing hearing). Consequently, Latta was on notice to prepare to rebut all
alleged inaccuracies in the PSI at the sentencing hearing. The record indicates that
Latta never objected to the court’s decision to address whatever concerns he had
about the accuracy of the PSI at the sentencing hearing nor, prior to his reply brief
to this court on appeal, did he contend that he was deprived of an adequate
opportunity to rebut the alleged inaccuracies.

¶34 Though Latta asserted in his postconviction motion that the circuit
court “failed to make findings on the controverted issues of [the agent’s]
credibility and her PSI at the initial sentencing [hearing],” the record conclusively
establishes that at the sentencing hearing, Latta never challenged the agent’s
credibility or the PSI. Latta had an opportunity at the hearing to thoroughly
question the agent, who reaffirmed the statements she attributed to Latta in the
PSI, but he did not attempt to present other witnesses or any evidence supporting
an argument that the PSI was inaccurate. In their sentencing remarks, neither
Latta nor trial counsel ever mentioned alleged errors in the PSI.

17
No. 2022AP2188-CR

¶35 Additionally, Latta’s failure to preserve any challenges to the PSI is
not factually analogous to Counihan, in which the Supreme Court concluded that
it was “appropriate” to disregard the forfeiture rule. As explained above, both
Counihan and Coffee recognize that applying the forfeiture rule does not promote
the principles of fairness and judicial efficiency when previously unknown
information is first raised at the sentencing hearing and the defendant has not had a
chance to investigate or rebut the information. Counihan, 390 Wis. 2d 172, ¶32;
Coffee, 389 Wis. 2d 627, ¶¶31-32. Latta’s situation is akin to that of defendants
who had access to the PSI and the ability to investigate and object to the accuracy
of the information prior to sentencing. See Counihan, 390 Wis. 2d 172, ¶¶34 n.9,
35; Mosley, 201 Wis. 2d at 46. Though Latta was aware of the alleged errors in
the PSI, besides questioning the agent, he took no steps to challenge or object to
the contested PSI portions.

¶36 For the foregoing reasons, we conclude that a review of the material
portions of the record indicate that Latta failed to preserve any factual objections
to the PSI for appeal and that applying the forfeiture rule serves the fair and
efficient administration of the judicial system. See Pinno, 356 Wis. 2d 106, ¶66.
Therefore, the circuit court did not err in denying Latta’s postconviction motion
regarding alleged inaccuracies in the PSI without an evidentiary hearing. See id.;
Ruffin, 401 Wis. 2d 619, ¶28.

III. The Circuit Court Did Not Err in Denying Latta’s Ineffective Assistance
of Counsel Motion Without a Machner Hearing.

¶37 Having determined that Latta fails to demonstrate that the circuit
court erred in not holding a postconviction hearing regarding the accuracy of the
PSI, we now address his alternative argument that his trial counsel provided
ineffective assistance of counsel. See State v. Erickson, 227 Wis. 2d 758, 766,

18
No. 2022AP2188-CR

596 N.W.2d 749 (1999) (“[T]he normal procedure in criminal cases is to address
[a forfeited issue] within the rubric of the ineffective assistance of counsel.”).
Latta argues that his trial counsel was ineffective by failing to request an
evidentiary hearing or otherwise rebut the alleged inaccuracies in the PSI, failing
to request that the court refrain from considering these inaccuracies at sentencing,
and failing to object to the court’s alleged reliance on these inaccuracies at
sentencing. For the following reasons, we conclude that the court properly denied
Latta’s ineffective assistance of counsel claim without holding a Machner
hearing.

A. Governing Principles of Machner Hearings.

¶38 We review whether a defendant is entitled to a Machner hearing
using the same test as that used for other requests for postconviction evidentiary
hearings, as set forth above. See Ruffin, 401 Wis. 2d 619, ¶¶35-38. In evaluating
an ineffective assistance of counsel claim, we apply the well-established, two-
prong Strickland test: “[A] defendant must demonstrate both that (1) counsel’s
representation was deficient, and (2) the deficiency was prejudicial.” Ruffin, 401
Wis. 2d 619, ¶29; Strickland v. Washington, 466 U.S. 668, 687 (1984); State v.
Carter, 2010 WI 40, ¶22, 324 Wis. 2d 640, 782 N.W.2d 695; State v. Sholar, 2018
WI 53, ¶32, 381 Wis. 2d 560, 912 N.W.2d 89. “Both prongs of the inquiry need
not be addressed if the defendant makes an insufficient showing on one.” Ruffin,
401 Wis. 2d 619, ¶29.

¶39 In order to show deficient performance, a defendant must allege
“that counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment” and must establish
that counsel’s representation fell below an objective standard of reasonableness

19
No. 2022AP2188-CR

considering all the circumstances. Strickland, 466 U.S. at 687; Carter, 324 Wis.
2d 640, ¶22.

¶40 Even if trial counsel performed effectively in most regards, trial
counsel’s performance may still be ineffective based on a single, prejudicial error.
United States v. Cronic, 466 U.S. 648, 657 n.20 (1984) (“[T]he type of breakdown
in the adversarial process that implicates the Sixth Amendment is not limited to
counsel’s performance as a whole—specific errors and omissions may be the
focus of a claim of ineffective assistance as well.” (citing Strickland, 466 U.S. at
693-96)). Hence, even an attorney who performs effectively in most aspects of
representation can commit a single error that may result in prejudicing a
defendant.

¶41 To prove prejudice, a defendant must establish that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” State v. Balliette, 2011 WI 79, ¶24,
336 Wis. 2d 358, 805 N.W.2d 334 (citation omitted). “It is not sufficient for the
defendant to show that … counsel’s errors ‘had some conceivable effect on the
outcome of the proceeding.’” Carter, 324 Wis. 2d 640, ¶37 (citation omitted).
Rather, “[a] ‘reasonable probability’ in this context means ‘a probability sufficient
to undermine confidence in the outcome.’” Jackson, 405 Wis. 2d 458, ¶10
(citation omitted). “The focus of the inquiry is not on the outcome of the trial, but
on ‘the reliability of the proceedings.’” State v. Love, 2005 WI 116, ¶30, 284 Wis.
2d 111, 700 N.W.2d 62 (citation omitted).

¶42 Ineffective assistance claims present mixed issues of fact and law.
Balliette, 336 Wis. 2d 358, ¶19. We will uphold the circuit court’s factual

20
No. 2022AP2188-CR

findings “unless shown to be clearly erroneous,” but “[t]he ultimate conclusion as
to whether there was ineffective assistance of counsel is a question of law.” Id.

¶43 Like most other postconviction motions, a circuit court may deny a
postconviction motion for a Machner hearing if sufficient material and non-
conclusory facts, assuming them to be true, do not entitle a movant to relief or if
the record conclusively demonstrates that the movant is not entitled to relief.
Allen, 274 Wis. 2d 568, ¶12. Concerning the latter situation, we must determine
whether the record conclusively demonstrates either that trial counsel’s
performance was not deficient or that Latta was not prejudiced. See id. Because
we conclude that the material portions of the record conclusively demonstrate that
any deficiency of trial counsel did not prejudice Latta, the circuit court was not
required to hold a Machner hearing.

B. The Record Conclusively Demonstrates That Latta Is Not Entitled
to Relief.

¶44 Latta’s postconviction motion did not recognize and apply
Strickland’s prejudice prong of an ineffective assistance of counsel claim—i.e.,
that there was a “reasonable probability” that, but for trial counsel’s deficiencies,
Latta’s sentence would be more favorable. See Balliette, 336 Wis. 2d 358.
Rather, Latta argued that the alleged inaccuracies in the PSI “infected” and
“poisoned” the circuit court’s sentencing decision, improperly influencing the
court to “quadruple[]” the one-year jail sentence jointly recommended by the
parties. But this is not the legal standard we apply in evaluating whether Latta was
prejudiced by counsel’s alleged deficiencies. On appeal, Latta also fails to apply
the Strickland prejudice standard in discussing his ineffective assistance of

21
No. 2022AP2188-CR

counsel claim, rendering this claim undeveloped.9 See State v. Pettit, 171 Wis. 2d
627, 647, 492 N.W.2d 633 (Ct. App. 1992) (stating that this court may decline to
address undeveloped arguments). We could reject Latta’s ineffective assistance of
counsel claim on that basis, but we choose to proceed to the merits.

¶45 Even if Latta had properly analyzed the prejudice prong, we
conclude that the material portions of the record conclusively establish that Latta
was not prejudiced by counsel’s alleged deficiencies. In other words, there was
not a “reasonable probability” of a more favorable sentencing outcome had trial
counsel attempted to rebut the alleged inaccuracies in the PSI or objected to the
circuit court’s consideration of these alleged deficiencies. Latta is therefore not
entitled to relief. In reaching this conclusion, we assume without deciding that the
record conclusively shows that trial counsel’s performance was deficient in not
attempting to rebut or object to the alleged inaccuracies.10 We consider six main
9
Latta’s arguments at various points in his briefing conflate the prejudice standard we
apply in an ineffective assistance of trial counsel claim, see State v. Ruffin, 2022 WI 34, ¶35, 401
Wis. 2d 619, 974 N.W.2d 432, with the harmless error standard that we apply in a due process
claim for resentencing because of a circuit court’s use and reliance on inaccurate information, see
State v. Tiepelman, 2006 WI 66, ¶¶26, 31, 291 Wis. 2d 179, 717 N.W.2d 1. The conflation of a
due process claim with an ineffective assistance of counsel claim may have resulted from Latta’s
reliance on State v. Anderson, 222 Wis. 2d 403, 588 N.W.2d 75 (Ct. App. 1998), which our
supreme court has explained “came perilously close to conflating its analysis of the due process
challenge with the claim of ineffective assistance of counsel.” Tiepelman, 291 Wis. 2d 179, ¶23
(citing Anderson, 222 Wis. 2d at 410). We address Latta’s ineffective assistance of counsel
argument, which is the specific claim he pursues on appeal.
10
Although it is not pertinent to our analysis, we note that in the circuit court’s order
denying Latta’s postconviction motion, the court determined that Latta’s counsel did not perform
deficiently because he performed effectively in most aspects of his representation. As discussed
above, however, a successful ineffective assistance of counsel claim may be limited to one or
more specific errors by counsel, regardless of counsel’s effective performance in most other
areas. See United States v. Cronic, 466 U.S. 648, 657 n.20 (1984) (citing Strickland v.
Washington, 466 U.S. 668, 693-96 (1984)). We need not decide whether Latta’s counsel
performed deficiently because, as explained in the text, the alleged deficiencies were not
prejudicial. See State v. Earl, 2009 WI App 99, ¶18 n.8, 320 Wis. 2d 639, 770 N.W.2d 755 (“On
appeal, we may affirm on different grounds than those relied on by the trial court.”).

22
No. 2022AP2188-CR

factors in determining that trial counsel’s assumed deficiencies did not prejudice
Latta.

¶46 First, the record conclusively shows that the circuit court’s
sentencing decision did not reference the alleged inaccurate statements in the PSI
attributed to Latta, but merely referenced the PSI generally. Hence, we reject
Latta’s conclusory assertions that the alleged inaccurate statements attributed to
him “poisoned” or “infected” the court’s sentencing decision.

¶47 Second, the record shows that the portions of the PSI that the circuit
court did reference at sentencing regarding Latta’s continued denial of
responsibility for his criminal conduct were the agent’s subjective impressions as a
result of her entire investigation, fittingly summarized in a section of the PSI titled
“Agent Impressions.”11 The agent explained at the sentencing hearing that she
compiled the PSI using multiple sources, including a questionnaire that Latta filled
out, a phone call that she had with Latta, and interviews with Latta’s family
members.

¶48 As this court has explained, “[t]he purpose of the PSI is to do more
than simply compile the factual background regarding a specific defendant.” State
v. Howland, 2003 WI App 104, ¶34, 264 Wis. 2d 279, 663 N.W.2d 340. Rather,

11
Latta identifies two statements of the circuit court at sentencing which specifically
referenced the PSI: (1) “The Presentence Investigation prepared by the Department of
Corrections indicates that [Latta] refuses to take responsibility for [his] actions and continually
ha[s] claimed the victims to be lying”; and (2) “The Presentence Investigation indicates that
without incarceration [Latta] [is] likely to continue to victimize [A.F.B.], her sister, as well as
create more victims.” These references by the court to the PSI are a near verbatim recitation of
the following statements in the “Agent Impressions” section of the PSI: (1) “It is abundantly
clear that [Latta] refuses to take responsibility for his actions and continually claims the victims
are lying”; and (2) “If [Latta] is not incarcerated he will continue to victimize these minors and he
is likely to create more victims.”

23
No. 2022AP2188-CR

the PSI “contains a variety of areas where the PSI writer is able to make
discretionary determinations.” Id. “[The agent impressions] portion of the PSI
involves the writer’s subjective feelings regarding the defendant to be sentenced.”
Id. Hence, we are unclear as to how the agent’s subjective impressions were
capable of being proved or disproved, even had the circuit court held an
evidentiary hearing on the alleged inaccuracies in the PSI.

¶49 Third, the record supports the agent’s subjective impression that,
after his plea, Latta continued to deny responsibility for his criminal conduct. The
“Defendant’s Version” section of the PSI contains the following statement: “The
defendant mentioned that [A.F.B.] and [R.G.B.] would call him often and tell him
they love him. He believes that is a clear sign they were not being abused.”
Although Latta’s postconviction motion disputed some other statements attributed
to him in this section of the PSI, Latta did not dispute the accuracy of this
statement. Consequently, even if Latta were successful in proving at an
evidentiary hearing that he never made the disputed statements to the agent, the
agent’s subjective opinion that Latta continued to deny responsibility for his
criminal conduct even after his plea is supported by the record. Hence, any
objection by trial counsel to the court’s recognition of the agent’s impression that
Latta continued to deny responsibility for his criminal conduct would have been
without a basis.

¶50 Fourth, rather than being “infected” or “poisoned” by the allegedly
inaccurate statements in the PSI, the circuit court’s statements that Latta had
previously denied his criminal conduct and blamed the victims are independently
corroborated by the record. As previously referenced, Latta’s own sentencing

24
No. 2022AP2188-CR

materials submitted to the court referenced his prior denials of his criminal
conduct and his victim-blaming statements.12 At sentencing, the court specifically
referenced Dr. Kelley’s psychosexual report of Latta: “The assessment prepared
by Dr. Kelley indicates … that you deny the current and previous sexual assault
allegations. And that when asked about the allegations by [A.F.B.], you denied
touching her in a sexual manner.” The court also referenced this assessment as
evidence that Latta had previously accused the victims of lying: “I acknowledge
and appreciate the work that went into Dr. Kelley’s evaluation. I have read it. I
have considered it. Frankly I have concerns, Mr. Latta, about your amenability to
treatment in light of your previous denials and apparent victim blaming.” These
references to Dr. Kelley’s assessment demonstrate that, even if Latta’s trial
counsel succeeded in disproving the contested statements in the PSI, any objection
to the court’s statements would have failed because the record shows that the court
had a factual basis for referencing Latta’s previous denials of his criminal conduct
and victim blaming.

¶51 Fifth, we see nothing improper about the following sentencing
statements by the circuit court which Latta argues were improperly influenced by
the alleged inaccuracies in the PSI: “I am not impressed by [Latta’s] lack of
insight. And it is unclear to me how or whether [he has] made any attempt to
analyze and address [his] actions in a meaningful or positive way.” These

12
Latta’s psychosexual evaluation prepared by Dr. Kelley, which he attached to his
sentencing memorandum, stated in relevant part that “Mr. Latta denied the current and previous
sexual assault allegations” and that, “[w]hen asked about the allegations by [A.F.B.], Mr. Latta
denied ever touching her in a sexual manner.” This assessment also referenced the victim-
blaming nature of Latta’s denials when it stated that Latta’s alleged justification for buying a
vibrator for A.F.B., who was approximately ten years old at the time, was purportedly to address
alleged sexualized behavior with peers and to prevent her from getting pregnant.

25
No. 2022AP2188-CR

statements are supported by the record. For instance, Latta’s own sentencing
memorandum alludes to Latta’s struggle to understand the scope of the effects that
his abusive conduct had on his young relatives: “While he may not have the
sophistication to appreciate what is meant by grooming, he acknowledges that he
failed to observe necessary and proper boundaries, such as when he purchased …
a vibrator for AFB or when he caused her to read sexual stories.” Further, the
record shows no “rehabilitative” actions by Latta prior to sentencing to address his
admitted conduct of sexually abusing a child in his family. Hence, any objection
to these sentencing statements would have failed.

¶52 Sixth, Latta has not demonstrated that, even if he had been granted
an evidentiary hearing or objected to the circuit court’s various sentencing
statements, these occurrences would have had any bearing on the circuit court’s
exercise of sentencing discretion such that he would have received a more
favorable sentence. The court’s primary focus in imposing its sentence was on the
seriousness of the offense and the need to protect the victims and the public, which
are well-established sentencing factors.13 See Gallion, 270 Wis. 2d 535, ¶44; WIS.
STAT. § 973.017(2). Further, the court appropriately balanced Latta’s positive and
negative character traits in determining that Latta’s rehabilitation was best
accomplished in a confined setting. Latta sets forth no reason for us to conclude
that his sentence would have been more favorable had he been granted a hearing
on the alleged inaccuracies in the PSI or objected to the court’s sentencing
statements with which he takes issue.

13
The circuit court specifically said that “[t]he seriousness of the offense and the
protection of the public require a period of incarceration in a strict and structured environment.”

26
No. 2022AP2188-CR

¶53 Finally, we reject Latta’s argument that State v. Anderson, 222 Wis.
2d 403, 588 N.W.2d 75 (Ct. App. 1998), requires us to conclude that trial
counsel’s failure to request an evidentiary hearing on the accuracy of the PSI
prejudiced Latta. In that case, Anderson pled no contest to two counts of first-
degree sexual assault of a child, which involved sexual touching, and two counts
of causing mental harm to a child. Id. at 404-05. At the sentencing hearing,
Anderson’s counsel alerted the circuit court that the defense had received the PSI
only one half-hour before the scheduled sentencing hearing, that the victims’
statements were partially inaccurate, that information derived from police reports
was determined to be untrue, and that some of the more serious, aggravated
allegations of sexual abuse contained in the PSI not at issue in the case had been
investigated and found to be baseless. Id. at 405. Although the court offered to
adjourn the sentencing hearing so that the defense could have more time to
prepare, Anderson consulted with counsel and decided to continue with
sentencing. Id. at 406. The court imposed an 80-year sentence, reasoning that
some of Anderson’s conduct as detailed in the PSI “make this some of the most
aggravated violations I have ever heard about or read about.” Id. at 406-07.

¶54 Anderson filed a postconviction motion alleging that the circuit court
relied on inaccurate information when sentencing him and that his counsel
provided ineffective assistance by: failing to request a continuance so that he and
Anderson could read the entire PSI; failing to investigate the inaccuracies in the
PSI; and failing to submit evidence that other men had committed the severe abuse
of the children detailed in the PSI that were not at issue in the case. Id. at 407.

¶55 On appeal, this court reversed and determined that Anderson’s trial
counsel performed deficiently by failing to request an evidentiary hearing to
resolve the accuracy of the PSI and that this deficiency was prejudicial because the

27
No. 2022AP2188-CR

circuit court relied on the allegations of sexual abuse set forth in the PSI that were
later recanted. Id. at 410.

¶56 In this appeal, Latta argues that there is “no daylight” between
Anderson and his fact situation. We disagree. In Anderson, this court explained
that the disputed allegations in the PSI described “far more serious and
aggravating conduct” than the conduct underlying the offense to which Anderson
pled. Id. at 411. By contrast, here, the disputed portions of the PSI merely
involve statements Latta made to the PSI author regarding whether he continued to
deny his criminal conduct after entering his plea. These contested statements
come nowhere near the severity of the undisputed incorrect information in the
Anderson PSI.

¶57 Additionally, we determined in Anderson that “it is clear that some
of the PSI’s allegations which Anderson did challenge influenced the court’s
assessment of Anderson’s character and the gravity of his offenses and its
conclusion that a very lengthy sentence was necessary.” Id. Here, as explained
above, the record conclusively demonstrates that the circuit court appropriately
weighed Latta’s negative and positive character traits and relied on the gravity of
Latta’s offense and the need to protect the public in determining his sentence. To
repeat, the sentencing court did not reference the disputed statements the PSI
attributed to Latta but rather the agent’s subjective impressions resulting from her
entire investigation. Further, the agent’s impression that Latta denied
responsibility for his criminal conduct is supported when examining the entire
record. Thus, Anderson does not support Latta’s argument.

¶58 For the reasons articulated above, we conclude that the record
conclusively demonstrates that there was not a “reasonable probability” that

28
No. 2022AP2188-CR

Latta’s sentence would have been more favorable but for trial counsel’s assumed
deficiencies. Consequently, Latta was not prejudiced by trial counsel’s conduct,
and he was not entitled to a Machner hearing on his ineffective assistance of
counsel claim.

CONCLUSION

¶59 For the foregoing reasons, the judgment and order of the circuit
court are affirmed.

By the Court.—Judgment and order affirmed.

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

29