State v. Willie G. Allison

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.
December 29, 2021
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. 2020AP1519-CR Cir. Ct. No. 2017CF890

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

WILLIE G. ALLISON,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Outagamie County: VINCENT R. BISKUPIC, Judge. Affirmed.

Before Stark, P.J., Hruz and Reilly, 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. Willie Allison appeals a judgment, entered upon a
jury’s verdicts, convicting him of three counts of human trafficking, as a repeater;
No. 2020AP1519-CR

one count of second-degree reckless injury, as a repeater; two counts of delivering
three grams or less of heroin, as a second or subsequent offense, with one count as
a party to a crime; and one count of maintaining a drug trafficking place, as a
second or subsequent offense. Allison also appeals the order denying his
postconviction motion, which sought a new trial or, in the alternative,
resentencing.

¶2 Allison argues that the State engaged in prosecutorial misconduct
related to the cross-examination of a witness; the circuit court erroneously
exercised its discretion by limiting cross-examination of the same witness; the
evidence was insufficient to support his conviction for second-degree reckless
injury; and he was denied the effective assistance of trial counsel. Allison also
claims that the court erroneously exercised its sentencing discretion, and that he is
entitled to resentencing with a new presentence investigation report (“PSI”).
Finally, Allison contends that the court erred by denying his motion for a new trial
without an evidentiary hearing. We reject Allison’s arguments, and we affirm the
judgment and order.

BACKGROUND

¶3 The charges against Allison arose from allegations that he forced
three women—Melissa, Debra, and Susan1—to engage in prostitution by using
physical violence, threats of physical violence, and their heroin and cocaine

1
Consistent with the policy underlying WIS. STAT. RULE 809.86(4) (2019-20), we refer
to the victims by pseudonyms.

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

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addictions to control them. The State further alleged that police and medical
personnel responded to what turned out to be Debra’s drug overdose at Allison’s
home on Durkee Street in Appleton. According to the complaint, Debra
overdosed on heroin that Allison gave her, but she regained consciousness
following the administration of Narcan. The State also alleged that Allison and an
associate, Marcell Brown, sold heroin to a confidential informant with whom they
met in the parking lot of the Outagamie County Justice Center. Multiple witnesses
reported that Allison also sold heroin and cocaine from his home.

¶4 After a multi-day trial, a jury convicted Allison of the crimes
charged. Out of a maximum possible 136-year sentence (with the repeater
enhancements), the circuit court imposed consecutive sentences resulting in a
ninety-year term, consisting of sixty years’ initial confinement and thirty years’
extended supervision. Allison’s postconviction motion for a new trial or for
resentencing was denied without a hearing. This appeal follows.

DISCUSSION

A. Prosecutorial Misconduct

¶5 Allison argues that the prosecutor engaged in misconduct by
objecting to evidence of Melissa’s probationary status, prior convictions, and
conditions of her probation, which Allison offered to show an underlying reason
for Melissa’s incriminating testimony. Whether prosecutorial misconduct
occurred and whether such conduct requires a new trial are within the circuit
court’s discretion. State v. Lettice, 205 Wis. 2d 347, 352, 556 N.W.2d 376
(Ct. App. 1996).

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¶6 Before trial, the State disclosed that Melissa was placed on probation
in three Outagamie County cases on April 4, 2017—more than six months before
the complaint was filed in Allison’s case. The State provided defense counsel
with the sentencing hearing transcript from Melissa’s cases, and it further
disclosed that Melissa had an open criminal referral that the State did not intend to
charge. At a pretrial conference, the State asserted that the disclosed information
regarding Melissa was irrelevant because her cases were “long settled” prior to the
charges against Allison. The circuit court acknowledged that defense counsel
could cross-examine witnesses regarding any concession received in exchange for
testimony. It determined, however, that “[i]f there’s some case that’s remote that
was resolved a long time before this case even started and there’s no link, that
should not be brought up[.]” After jury selection, the court reiterated that if
defense counsel wished to cross-examine the witnesses regarding any
consideration they allegedly received beyond the scope of their proffer letters, he
needed to submit an offer of proof. The record does not reflect that defense
counsel did so.

¶7 At trial, defense counsel repeatedly attempted to cross-examine
Melissa regarding her probationary status and prior arrests. The prosecutor
objected, and the circuit court, consistent with its pretrial ruling, sustained the
objections. Citing State v. White, 2004 WI App 78, ¶25, 271 Wis. 2d 742, 680
N.W.2d 362, Chambers v. Mississippi, 410 U.S. 284, 294 (1973), and Crane v.
Kentucky, 476 U.S. 683, 690 (1986), Allison asserts that the prosecutor committed
misconduct by denying him his due process right to present evidence.

¶8 Allison’s reliance on these cases is misplaced. White involved a
prosecutor’s failure to disclose evidence, which is not at issue in this case. See
White, 271 Wis. 2d 742, ¶22. Chambers involved the review of a Mississippi

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common-law rule that a party may not impeach his or her own witness, Chambers,
410 U.S. at 295, and Crane held that a blanket exclusion of proffered testimony
about the circumstances of a defendant’s confession deprived him of a fair trial,
Crane, 476 U.S at 690. Ultimately, Allison provides no citation to case law
suggesting that a prosecutor’s trial objection to the admission of fully-disclosed
but irrelevant evidence constitutes prosecutorial misconduct.

B. Circuit Court Limitation on Cross-Examination

¶9 Allison relatedly argues that the circuit court erroneously exercised
its discretion by precluding defense counsel from cross-examining Melissa
regarding any effect of her probationary status and conditions of probation on her
testimony. A circuit court’s decision to limit cross-examination is reviewed for an
erroneous exercise of discretion. State v. Rhodes, 2011 WI 73, ¶24, 336 Wis. 2d
64, 799 N.W.2d 850. Beyond Melissa’s admission to eight prior convictions and
the admission of her proffer letter from the State,2 Allison sought to cross-examine
Melissa about the details of her prior cases as well as her probationary status.

2
The letter, dated November 15, 2017, provided, in relevant part:

The State will not use any proffered information [Melissa]
provides related to the criminal activities of Willie Allison and
others, not already in our possession, to prosecute [Melissa] for
charges which are premised on the proffered statements. This
does not preclude the State from using against [Melissa]
statements [Melissa] has made prior to the date of this
agreement, or any information that the State has obtained or may
obtain independent of [Melissa]’s statements.

(continued)

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¶10 The circuit court properly excluded cross-examination on cases
resolved long before Allison’s case commenced, as Melissa’s testimony in the
present matter could not have benefitted her in the prior cases. Defense counsel
nevertheless asserts that Melissa may have believed “she needed to testify either
falsely, inaccurately or with exaggeration, respectively, in order to comply with
the terms of her probation.” The State’s proffer letter to Melissa, however,
explicitly required her to tell the truth. In any event, Allison’s claim is based on
unsubstantiated speculation, and our supreme court has held that “a defense
inquiry based upon [a] purely speculative theory is too far afield of any rational
relationship to the truthful character of the witness or [the witness]’s testimony.”
State v. McCall, 202 Wis. 2d 29, 40, 549 N.W.2d 418 (1996).

C. Sufficiency of the Evidence

¶11 Next, Allison argues the evidence at trial was insufficient to support
his conviction for second-degree reckless injury arising from Debra’s heroin
overdose. Whether the evidence supporting a conviction is direct or
circumstantial, we utilize the same standard of review regarding its sufficiency.
State v. Poellinger, 153 Wis. 2d 493, 501-02, 451 N.W.2d 752 (1990). We must
uphold Allison’s conviction “unless the evidence, viewed most favorably to the
state and the conviction, is so insufficient in probative value and force that it can
be said as a matter of law that no trier of fact, acting reasonably, could have found

The statements also may be used against [Melissa] in a
prosecution related to obstructing, perjury, or a similar charge
related to the integrity of the investigative or criminal justice
process, if the information provided proves false, or if [Melissa]
later testifies untruthfully in a matter related to the subject of the
statements. The information provided by [Melissa] must be
complete and truthful.

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guilt beyond a reasonable doubt.” See id. If there is a possibility that the jury
“could have drawn the appropriate inferences from the evidence adduced at trial to
find the requisite guilt,” we must uphold the verdict even if we believe that the
jury “should not have found guilt based on the evidence before it.” Id. at 507.

¶12 It is the jury’s function to decide the credibility of witnesses and
reconcile any inconsistencies in the testimony. State v. Toy, 125 Wis. 2d 216,
222, 371 N.W.2d 386 (Ct. App. 1985). If more than one inference can be drawn
from the evidence, this court will follow the inference that supports the jury’s
finding “unless the evidence on which that inference is based is incredible as a
matter of law.” Poellinger, 153 Wis. 2d at 506-07. A jury is free to piece together
the bits of testimony it found credible to construct a chronicle of the circumstances
surrounding the crime. See State v. Sarabia, 118 Wis. 2d 655, 663-64, 348
N.W.2d 527 (1984). Further, “[f]acts may be inferred by a jury from the objective
evidence in a case.” Shelley v. State, 89 Wis. 2d 263, 273, 278 N.W.2d 251
(Ct. App. 1979).

¶13 To find Allison guilty of second-degree reckless injury, the State
was required to prove that Allison caused death or great bodily harm to Debra by
criminally reckless conduct. See WIS. STAT. § 940.23(2). “[C]riminal
recklessness means the actor creat[ed] an unreasonable and substantial risk of
death or great bodily harm … and the actor [was] aware of that risk.” WIS. STAT.
§ 939.24(1). Allison argues the evidence was insufficient to prove he was actually
aware that his delivery of heroin to Debra created a risk of overdose. We disagree.

¶14 At trial, Susan testified that the heroin Allison gave to Debra was
“very pure,” as Allison had not “cut this heroin with anything.” According to
Susan, Allison was aware that Debra had just been incarcerated for weeks thereby

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No. 2020AP1519-CR

reducing her heroin tolerance. Debra also testified that Allison had cautioned her
to “not do too much [heroin], because of the chance of overdose.” Debra added
that Allison’s usual practice, which he followed on the night of the overdose, was
to hand her only the amount of heroin that she was going to immediately use.

¶15 Putting all the evidence together, and viewing it in the light most
favorable to the guilty verdict, a reasonable jury could conclude that Allison was
aware of the unreasonable and substantial risk of death or great bodily harm
created by his delivery of heroin to Debra. The evidence submitted at trial is
sufficient to support the challenged conviction.

D. Sentencing Discretion

¶16 Next, Allison argues that the circuit court erroneously exercised its
sentencing discretion. Sentencing lies within the circuit court’s discretion. See
State v. Echols, 175 Wis. 2d 653, 681, 499 N.W.2d 631 (1993). The sentence
imposed should be the minimum amount of confinement that is consistent with
three primary sentencing factors: (1) the gravity of the offense; (2) the character
of the defendant; and (3) the need to protect the public. See State v. Gallion, 2004
WI 42, ¶¶23, 59-61, 270 Wis. 2d 535, 678 N.W.2d 197. The weight to be given
each of the primary factors is within the discretion of the sentencing court, and the
sentence may be based on any or all of the three primary factors after all relevant
factors have been considered. See State v. Wickstrom, 118 Wis. 2d 339, 355, 348
N.W.2d 183 (Ct. App. 1984). Although the court should explain the reasons for
the particular sentence imposed, “[h]ow much explanation is necessary … will
vary from case to case.” Gallion, 270 Wis. 2d 535, ¶39. “[T]he exercise of
discretion does not lend itself to mathematical precision.” Id., ¶49. Rather, the

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sentencing court must provide an explanation for the general range of the
sentence. Id.

¶17 Allison contends that his aggregate sentence is unduly harsh and
excessive, and the circuit court erroneously exercised its discretion by failing to
explain how the sentencing factors justified sixty years of initial confinement. To
the extent Allison argues that given his age, his sentence is tantamount to a life
sentence, the court is not required to consider a defendant’s life expectancy at
sentencing. See State v. Stenzel, 2004 WI App 181, ¶20, 276 Wis. 2d 224, 688
N.W.2d 20. When a defendant argues that his or her sentence is unduly harsh or
excessive, we will hold that the sentencing court erroneously exercised its
discretion “only where the sentence is so excessive and unusual and so
disproportionate to the offense committed as to shock public sentiment and violate
the judgment of reasonable people concerning what is right and proper under the
circumstances.” Ocanas v. State, 70 Wis. 2d 179, 185, 233 N.W.2d 457 (1975).
There is a presumption that Allison’s sentence, which is well within the maximum
allowed by law, is not unduly harsh or unconscionable, nor “so excessive and
unusual” as to shock public sentiment. See State v. Grindemann, 2002 WI App
106, ¶¶31-32, 255 Wis. 2d 632, 648 N.W.2d 507. Allison does not point to
anything in the record that would lead us to conclude that presumption has been
overcome.

¶18 Further, the record shows that the circuit court considered the proper
sentencing factors and explained why the sentence was appropriate. The court
noted that it placed less emphasis on then-thirty-nine-year-old Allison’s
rehabilitative needs given his extensive criminal history and past opportunities for
rehabilitation. The court explained that it deemed the protection of the public and
the gravity of the offenses to be the most important factors in this case,

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No. 2020AP1519-CR

emphasizing the “immeasurable” impact Allison’s crimes had on Susan, Debra
and Melissa. Ultimately, the court determined that given the “extremely
aggravated” nature of the crimes, “significant confinement was needed to protect
the public from further criminal activity by this defendant.” Because the court
considered the proper factors when imposing sentence, we conclude that it did not
erroneously exercise its sentencing discretion.

E. Presentence Investigation Report

¶19 Allison alternatively claims that he is entitled to resentencing with a
new PSI prepared by a “neutral agent.” Allison asserts that the PSI writer “had a
‘treatment’ relationship with [Melissa] between 3/29/18 and 5/10/18 while
apparently employed by [the Department of Corrections].” A biased PSI may
violate a defendant’s due process right to a fair sentence hearing, though the
defendant bears the burden of demonstrating that the PSI writer was biased. State
v. Suchocki, 208 Wis. 2d 509, 516, 518, 561 N.W.2d 332 (Ct. App. 1997),
abrogated on other grounds by State v. Tiepelman, 2006 WI 66, ¶31, 291 Wis. 2d
179, 717 N.W.2d 1.

¶20 The State acknowledges that a close emotional relationship between
the PSI writer and a person involved in the criminal case may be sufficient to taint
the objectivity of the PSI. In Suchocki, for example, the PSI writer was married to
the prosecutor, and this court held that this marital relationship created a conflict
of interest that rendered the PSI writer biased. Id. at 509, 513. This court has
likewise held that a mental health professional’s “extensive treatment relationship”
with a victim created a conflict of interest calling into question the objectivity of
an evaluation that was incorporated into the PSI. See State v. Stafford, 2003

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No. 2020AP1519-CR

WI App 138, ¶¶6, 11, 265 Wis. 2d 886, 667 N.W.2d 370, abrogated on other
grounds by State v. Harbor, 2011 WI 28, ¶52, 333 Wis. 2d 53, 797 N.W.2d 828.

¶21 Here, the PSI writer disclosed before trial that as part of her role as a
probation and parole agent, she was involved with human trafficking outreach
efforts in the community, and she was also assigned to supervise individuals
involved in human trafficking, which included supervising human trafficking
survivors who were receiving treatment in residential programs. It was in this
supervisory capacity that the PSI writer had three face-to-face meetings with
Melissa over the course of approximately six weeks.

¶22 There is nothing in the record to suggest that the writer herself
provided any sort of clinical treatment to Melissa. Because there is no evidence of
an improper relationship necessitating disqualification of the PSI writer, Allison
fails to show that his due process rights were violated by a biased PSI.

F. Ineffective Assistance of Counsel

¶23 Allison raises several challenges to the effectiveness of his trial
counsel and he argues that he was entitled to an evidentiary hearing on his claims.
However, a defendant who alleges ineffective assistance of counsel is not
automatically entitled to an evidentiary hearing. To obtain an evidentiary hearing,
the defendant’s motion must allege, with specificity, both that counsel provided
deficient performance and that the deficiency was prejudicial. State v. Bentley,
201 Wis. 2d 303, 313-18, 548 N.W.2d 50 (1996). If the motion alleges facts that
would entitle the defendant to relief, the circuit court has no discretion and must
hold an evidentiary hearing. Id. at 310. Whether a motion alleges facts that, if
true, would entitle a defendant to relief is a question of law that we review
independently. Id.

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No. 2020AP1519-CR

¶24 If the factual allegations of the motion are insufficient or conclusory,
or if the record irrefutably demonstrates that the defendant is not entitled to relief,
the circuit court may, in its discretion, deny the motion without a hearing. Id. at
309-10. When reviewing a circuit court’s discretionary act, this court utilizes the
deferential erroneous exercise of discretion standard. Id. at 310-11.

¶25 To substantiate a claim of ineffective assistance of counsel, a
defendant must show both that counsel’s performance was deficient and that
counsel’s errors were prejudicial. Strickland v. Washington, 466 U.S. 668, 687
(1984). A court need not address both components of this inquiry if the defendant
does not make a sufficient showing on one. See id. at 697. This court’s review of
an ineffective assistance of counsel claim is a mixed question of fact and law.
State v. Erickson, 227 Wis. 2d 758, 768, 596 N.W.2d 749 (1999). The circuit
court’s findings of fact will not be disturbed unless they are clearly erroneous. Id.
However, the ultimate determination of whether the attorney’s performance falls
below the constitutional minimum is a question of law that this court reviews
independently. Id.

¶26 In order to establish deficient performance, a defendant must show
that “counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466
U.S. at 687. A defendant proves prejudice by demonstrating there is “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694. “It is not enough
for the defendant to show that the errors had some conceivable effect on the
outcome of the proceeding.” Id. at 693. However, “a defendant need not prove
the outcome would ‘more likely than not’ be different in order to establish

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No. 2020AP1519-CR

prejudice in ineffective assistance cases.” State v. Sholar, 2018 WI 53, ¶44, 381
Wis. 2d 560, 912 N.W.2d 89 (citing Strickland, 466 U.S. at 693). Thus, “a
defendant need not prove the jury would have acquitted him [or her], but he [or
she] must prove there is a reasonable probability it would have, absent the error.”
Id., ¶46.

¶27 The question for this court on review is whether Allison’s
postconviction motion was sufficient to entitle him to a hearing, so we review
“only the allegations contained in the four corners of [the] postconviction motion,”
not the allegations in any brief. See State v. Allen, 2004 WI 106, ¶27, 274 Wis. 2d
568, 682 N.W.2d 433. First, Allison’s postconviction motion alleged his counsel
was ineffective by conceding Allison’s guilt “on one or more counts” during
closing argument, without obtaining Allison’s agreement and without specifying
which counts were conceded or why the concession was made. Specifically,
Allison challenges the following portion of defense counsel’s closing argument:

[T]here’s some things in these jury instructions and the
verdict—they’re going to say the defendant is guilty of that.
I don’t think you’re going to have a problem answering a
few of these in all honesty. Some of these things like drug
house. Think about that now. Okay. Some of these things
you might be able to answer relatively pretty quick.

¶28 The United States Supreme Court has recognized that “[w]hen a
client expressly asserts that the objective of ‘his [or her] defen[s]e’ is to maintain
innocence of the charged criminal acts, his [or her] lawyer must abide by that
objective and may not override it by conceding guilt.” McCoy v. Louisiana, 138
S. Ct. 1500, 1509 (2018). There, in an attempt to avoid the death penalty, counsel
told the jury “my client committed three murders,” despite the defendant’s
repeated insistence that he did not want to concede guilt. Id. at 1507. Because the

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defendant in McCoy “adamantly objected to any admission of guilt,” the Court
held that his right to effective assistance of counsel was violated. Id. at 1505.

¶29 Here, Allison’s postconviction motion did not allege or show that
counsel conceded guilt over Allison’s objection. Rather, the motion alleged only
that counsel conceded guilt “without obtaining his client’s agreement.” Even
assuming this assertion is true, Allison would not be entitled to relief unless he
objected to the concession before or at trial. Id. at 1509. Ultimately, the
postconviction motion failed to allege sufficient facts to show that counsel was
deficient in this regard.

¶30 Second, Allison argues that his trial counsel was ineffective by
failing to “properly and fully” object to improper lay opinion testimony related to
the State’s allegation that Allison was a party to the crime of delivering heroin to a
confidential informant. During a jail phone call in which Allison discussed
Brown’s meeting with the confidential informant, Allison stated, “I thought he
was good.” Jonathan Cvengros, a sheriff’s investigator, testified at trial that the
fact Allison believed the confidential informant “was good” suggested to
Cvengros that he was aware of the drug transaction. According to Allison, this
testimony allowed the officer to operate as a “‘super’ juror,” providing an
inculpatory interpretation of an ambiguous telephone remark.

¶31 Defense counsel objected to the challenged testimony on relevance
grounds, and his objection was overruled. Ultimately, Allison fails to establish
that Cvengros’s testimony was improper. Lay opinion testimony is generally
permitted when it is “rationally based on the perception of the witness.” Poston v.
Burns, 2010 WI App 73, ¶22, 325 Wis. 2d 404, 784 N.W.2d 717. Here, Cvengros
listened to Allison’s jail call and gave his opinion, based on his own observations,

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as to whether Allison’s remark suggested awareness of Brown’s heroin
transaction.

¶32 Third, Allison claims his counsel was ineffective by failing to
“effectively establish” that Brown was working alone when he delivered heroin to
the confidential informant. Allison claimed that he drove to the justice center to
visit someone, and he had no knowledge that Brown was going to deliver heroin.
Allison appears to be arguing that Brown and the confidential informant arranged
the heroin transaction while Allison was already driving to the justice center for a
different and lawful purpose, thus establishing that Allison was unaware of the
transaction. This argument is based on a misunderstanding of the record and
ignores the video evidence of Allison’s involvement in the transaction.

¶33 The record on appeal shows that the call arranging to meet the
confidential informant in the justice center parking lot was at least the second call
between Brown and the informant that day. The buy was previously arranged to
take place at Allison’s residence, from which Allison and Brown left to go to the
justice center. This record does not support the inference that Brown suddenly
arranged the transaction on the way to the justice center and without Allison’s
knowledge. Further, security video showed Allison, Brown and the confidential
informant standing within feet of one another before Brown departed in the
informant’s car to complete the transaction. Therefore, any attempt on defense
counsel’s part to establish that Brown acted alone would have failed.

¶34 Fourth, Allison contends his counsel was ineffective by failing to
overcome the State’s objection to cross-examination based on Melissa’s
probationary status. As discussed above, the circuit court properly limited
cross-examination on this topic. An attorney “does not perform deficiently by

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No. 2020AP1519-CR

failing to make a losing argument,” see State v. Jacobsen, 2014 WI App 13, ¶49,
352 Wis. 2d 409, 842 N.W.2d 365 (2013), and Allison cites no legal authority to
suggest that an attorney performs deficiently merely because the circuit court ruled
against him on an evidentiary issue.

¶35 Allison relatedly argues that his counsel was ineffective by failing to
move for a mistrial on the grounds of prosecutorial misconduct in objecting to
cross-examination questions related to Melissa’s probationary status. As
discussed above, Allison cites no authority to support his claim that a prosecutor
engages in misconduct merely by objecting to evidence that he or she believes is
improper, and the circuit court properly limited Melissa’s cross-examination in
this regard. Again, counsel does not perform deficiently by failing to make a
losing argument. See id.

¶36 Allison asserts that his counsel was ineffective by failing to request a
hearing to investigate the PSI writer’s alleged bias based on a purported “treatment
relationship,” as discussed above. Defense counsel, however, raised the issue of a
potentially biased PSI writer on more than one occasion, even requesting an
adjournment at sentencing so a new PSI could be written by a different author. As
noted above, the circuit court proceeded over defense counsel’s objection after
properly concluding that no bias had been shown. Once again, an attorney does
not perform deficiently by failing to make a losing argument. Id.

¶37 Because the various claims in Allison’s postconviction motion failed
to allege facts that, if proven, would establish deficient performance or court error,
Allison was not entitled to an evidentiary hearing, and the circuit court properly
denied the motion. See Bentley, 201 Wis. 2d at 313-18.

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By the Court.—Judgment and order affirmed.

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

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