State v. Timmy Lansing Johnson

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.
June 25, 2026
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. 2024AP2074-CR Cir. Ct. No. 2021CF5

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TIMMY LANSING JOHNSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Dodge County: KRISTINE A. SNOW, Judge. Affirmed.

Before Graham, P.J., Nashold, 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. 2024AP2074-CR

¶1 PER CURIAM. Timmy Lansing Johnson appeals a judgment of
conviction for battery by a prisoner as a repeater and an order denying his motion
for postconviction relief. On appeal, Johnson argues that he is entitled to a new
trial because the circuit court erred when it determined that he was competent to
represent himself at trial and when it directed a verdict against him in the
responsibility phase of his bifurcated trial. Johnson also argues that he is entitled
to resentencing because trial counsel provided ineffective assistance of counsel at
his sentencing and that the court erroneously exercised its discretion at sentencing
by imposing a consecutive sentence. We reject Johnson’s arguments and affirm.

BACKGROUND

¶2 Johnson was an inmate at Waupun Correctional Institution. In 2019,
as he was receiving his evening medication, a correctional officer observed
Johnson attempting to conceal the medication in his upper lip rather than ingesting
it. The correctional officer informed Johnson that he would be receiving “a
conduct report for misuse of medication.” Later, Johnson approached the
correctional officer and asked if this meant he would be “going to the hole.” The
officer told Johnson that he would speak with him “after the med line was
finished” and ordered him to step into a different area. Johnson did not comply
with the officer’s directive, and he began “violently punching and swinging both
arms with closed fists” at a different correctional officer standing nearby. Johnson
hit the “head and facial area” of this officer “approximately 20-30 times.”

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¶3 The State charged Johnson with battery by a prisoner as a repeater.
See WIS. STAT. §§ 940.20(1), 939.62(1).1 Johnson, by his counsel, entered pleas
of not guilty and not guilty by reason of mental disease or defect (NGI).

¶4 Because of Johnson’s NGI plea and pursuant to WIS. STAT.
§ 971.16, the circuit court ordered pretrial mental examinations of Johnson by
three court-appointed experts. In reports that they submitted to the court, all three
experts opined that Johnson did not meet the criteria for suffering from a mental
disease or defect at the time he committed the charged offense. Specifically, the
experts opined that there was not “sufficient data” to support that Johnson, at the
time of the battery, lacked substantial capacity to conform his conduct to law or
appreciate the wrongfulness of his conduct due to a mental disease or defect. The
State indicated that it intended to call at least one of the experts at trial.

¶5 Johnson’s trial was held in July 2022 and was bifurcated pursuant to
WIS. STAT. § 971.165 (providing that a bifurcated trial is required when a
defendant enters a plea of not guilty and a plea of NGI). In a bifurcated trial, the
first phase of the trial concerns the defendant’s guilt and is the same as a regular
criminal trial where the State has the burden to prove guilt beyond a reasonable
doubt. See § 971.165(1). In contrast, the second phase concerns whether the
defendant is to be relieved of responsibility for the criminal conduct due to the
defendant’s mental disease or defect, and in that phase, the burden of proof is on
the defendant. See § 971.165(3). We provide a general overview of what
occurred during Johnson’s bifurcated trial in this background section and
additional detail as needed in the discussion section.

1
All references to the Wisconsin Statutes are to the 2023-24 version.

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¶6 On the morning that Johnson’s bifurcated trial was scheduled to
begin, Johnson informed the circuit court that he wished to represent himself at
trial. The court conducted a lengthy colloquy with Johnson, after which it
determined that Johnson was “making a knowing, intelligent, and voluntary
waiver of [his] right to counsel” and that Johnson was competent to represent
himself. As part of its decision, the court ordered Johnson’s attorney to act as
stand-by counsel at trial.

¶7 Johnson’s trial commenced with the guilt phase, and the State called
a number of witnesses in its case-in-chief, including the victim correctional officer
and several other correctional officers who had witnessed the attack. Johnson was
the sole witness in his own defense, and before he testified, he requested that
stand-by counsel act as adversary counsel and take over for the remainder of the
trial, which the circuit court allowed. During his direct examination, Johnson
admitted to engaging in a physical altercation and punching the correctional
officer. The jury found Johnson guilty of battery by a prisoner as a repeater.

¶8 Johnson’s trial then proceeded to the responsibility phase to
determine whether Johnson, at the time of the battery, “ha[d] a mental disease or
defect” and, as a result, “lacked substantial capacity either to appreciate the
wrongfulness of the conduct or to conform that conduct to the requirements of
law.” See WIS JI—CRIMINAL 603. Johnson was the sole witness for the defense
at the responsibility phase of the trial, and he testified that he had been diagnosed
with various mental health issues over the years. He testified that on the day of
the battery, he had not been taking his medication, tramadol, and as a result, he
was experiencing “racing thoughts” and “paranoia,” and was hearing “spirits.”
Johnson stated that he thought the officer he attacked was trying to kill him.
When asked whether the “mental health issues” that he was experiencing that day

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made him “able to conform [his] conduct to the requirements of law” or
“appreciate the wrongfulness of his conduct,” Johnson responded that these
symptoms rendered him incapable of doing so. When asked to elaborate on “why”
this was the case, Johnson again referenced his racing thoughts, paranoia and that
he was not feeling like himself.

¶9 On cross-examination, the State asked Johnson whether he had any
medical records to corroborate the various mental health diagnoses that he alleged
he had, and Johnson acknowledged that he did not have any such records. In
addition, the State asked Johnson about his conduct both immediately before and
immediately after the battery. Among other things, Johnson answered that he was
able to successfully comply with officer directives and prison rules both before
and after the battery; he was able to ask questions to officers that showed that he
understood that violating prison medication rules had consequences; and he was
able to understand that other prison guards were approaching while he was
attacking the officer, which resulted in Johnson stopping the conduct.

¶10 After Johnson presented his testimony and the defense rested, the
State moved for a directed verdict, arguing that Johnson had not provided
“sufficient testimony” to allow a reasonable jury to find that he was not
responsible for the battery due to mental disease or defect. Following argument
from both sides, the circuit court granted the State’s motion.

¶11 A judgment of conviction was entered, and Johnson’s sentencing
hearing was held in August 2022. At the hearing, both the prosecutor and defense
counsel erroneously told the circuit court that pursuant to a state statute that is not
clearly identified in the record, the court had to impose a sentence consecutive to
the sentences that had already been imposed on Johnson which he was then

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No. 2024AP2074-CR

serving. After considering various sentencing factors, the court sentenced Johnson
to five years of initial confinement and three years of extended supervision and
ordered that the sentence run consecutively to any previously imposed sentence.

¶12 Johnson filed a motion for postconviction relief, which the circuit
court denied following a hearing. Johnson appeals.

DISCUSSION

¶13 On appeal, Johnson reiterates his postconviction arguments that he is
entitled to a new trial because the circuit court erred in determining that he was
competent to represent himself at trial and in granting a directed verdict against
him at the responsibility phase of his bifurcated trial. He also argues that he is
entitled to resentencing because trial counsel was constitutionally ineffective at his
sentencing and that the court erroneously exercised its discretion in imposing a
consecutive sentence. We address Johnson’s arguments in turn.

I. Competency for Self-Representation

¶14 A criminal defendant has a constitutional right to self-representation.
See Faretta v. California, 422 U.S. 806, 807, 822 (1975); State v. Klessig, 211
Wis. 2d 194, ¶8, 564 N.W.2d 716 (1997); U.S. CONST. amend. VI; WIS. CONST.
art. I. When a defendant seeks to represent himself, the circuit court must
undertake a two-part inquiry to determine that the defendant “(1) has knowingly,
intelligently, and voluntarily waived the right to counsel, and (2) is competent to
proceed pro se.” State v. Marquardt, 2005 WI 157, ¶56, 286 Wis. 2d 204, 705
N.W.2d 878. If both of these criteria are satisfied, the court “must allow” the
defendant to represent himself. See Klessig, 211 Wis. 2d 194, ¶9. On appeal,

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Johnson solely challenges the second part of the inquiry: whether he was
competent to represent himself.2

¶15 When considering a defendant’s competency to proceed pro se, the
circuit court must determine whether the defendant “possesses the minimal
competence necessary to conduct his own defense.” See State v. Pickens, 96 Wis.
2d 549, 568-69, 292 N.W.2d 601 (1980), overruled, in part, on other grounds by
Klessig, 211 Wis. 2d 194, ¶13. Although the standard to determine competency
for self-representation is “higher” than the standard of whether a defendant is
competent to stand trial,3 defendants of “average ability and intelligence” should
not be prevented from representing themselves, “unless ‘a specific problem or
disability can be identified which may prevent a meaningful defense from being
offered.’” Klessig, 211 Wis. 2d 194, ¶24 (quoting Pickens, 96 Wis. 2d at 569). In
determining whether a defendant is competent to represent themselves, “the circuit
court should consider factors such as ‘the defendant’s education, literacy, fluency
in English, and any physical or psychological disability which may significantly
affect his ability to communicate a possible defense to the jury.’” Id. (quoting
Pickens, 96 Wis. 2d at 569). The competency determination “rest[s] to a large
extent upon the judgment and experience of the trial judge.” Id. Thus, we will
uphold the circuit court’s determination that a defendant is competent to proceed
pro se unless it is “totally unsupported by the facts apparent in the record.”

2
Because Johnson does not argue on appeal that his waiver to his right to counsel was
not knowing, intelligent, and voluntary, we do not address this issue further.
3
The standard for determining competency to stand trial is whether the defendant is able
to understand the proceedings and to assist in his own defense. See WIS. STAT. § 971.13(1) (“No
person who lacks substantial mental capacity to understand the proceedings or assist in his or her
own defense may be tried, convicted or sentenced for the commission of an offense so long as the
incapacity endures.”).

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No. 2024AP2074-CR

Pickens, 96 Wis. 2d at 570; see also Marquardt, 286 Wis. 2d 204, ¶21 (providing
that “[w]e review a circuit court determination of whether a defendant is
competent to proceed pro se under what is ‘essentially a clearly erroneous standard
of review’” (citation omitted)).

¶16 Here, the circuit court’s determination that Johnson was competent
to proceed pro se was not “totally unsupported by the facts apparent in the record.”
Pickens, 96 Wis. 2d at 570. The court conducted a lengthy and robust colloquy
with Johnson, in which it inquired about his education, his fluency in English, his
physical and mental state, his medication use, his understanding of the
proceedings, and his preparation to proceed pro se. Johnson told the court, among
other things, that he could read and write in the English language; that he had a
high-school education; and that he had completed some college courses. The
court inquired into the nature of the medication that Johnson was taking, and
Johnson explained that the medication was prescribed to “[h]elp [him] focus” and
“calm [him] down,” and that it did not “impair [his] ability to understand the
proceedings.” Although Johnson acknowledged that he had not always been in the
best place mentally at earlier points prior to trial, he explained that doctors had
recently “upped” his medication dosage and that he had a “clear head,” was of
“sound mind,” and was able to represent himself.

¶17 Moreover, in response to the circuit court’s questions about the
nature of the proceedings, Johnson exhibited an understanding that his trial was
bifurcated and the State had the burden of proof in the first, guilt phase of the trial;
that he had the burden of proof in the second, responsibility phase of the trial; and
further, that it was his responsibility to hear the prosecution’s evidence, ask
questions, and present evidence on his own behalf. Johnson also acknowledged
that it was “more difficult” to proceed without an attorney, but explained that he

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No. 2024AP2074-CR

had prepared for trial by reading law books, consulting with his family attorney,
and reviewing the discovery materials.

¶18 The circuit court found that Johnson’s responses were “thoughtful”
and “understandable,” and it determined that Johnson’s “psychological state [was]
such that [he was] able to represent [him]self effectively.” This determination was
not clearly erroneous. The court was in the “best position” to “observe [Johnson],
his conduct and his demeanor, and to evaluate his ability to present at least a
meaningful defense.” Pickens, 96 Wis. 2d at 568. The record here, as shown
above, supports the court’s determination that Johnson possessed at least “the
minimal competence necessary to conduct his own defense.” Id. at 568-69.

¶19 Johnson makes three arguments to the contrary. We consider and
reject each.

¶20 Johnson first points out that the circuit court asked Johnson a
number of questions about the law that Johnson did not answer correctly. These
questions concerned character evidence, prior bad-acts evidence, motions in
limine, and the number of jurors that Johnson needed to convince in the
responsibility phase of his trial, among other things. Johnson argues that his
failure to answer these questions correctly demonstrates that he “did not
understand the proceeding sufficient[ly] to allow [for] self-representation.”

¶21 Although it is true that Johnson was not aware of the specific rules
surrounding certain legal and evidentiary concepts, the circuit court was only
required to conclude that Johnson possessed “the minimal competence necessary”
for self-representation. See id. at 568-69. Here, the record shows that Johnson
broadly understood that there were rules that governed evidence and the trial
generally; that he had to follow these rules; and that he may be prohibited from

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No. 2024AP2074-CR

presenting evidence and asking certain questions based on these rules. The court
could have reasonably determined that Johnson’s general grasp of the process and
proceeding was sufficient to allow for self-representation. Moreover, given that
Johnson’s attorney remained present as stand-by counsel, with the understanding
that the attorney could help Johnson navigate legal issues at trial, we are not
persuaded that the court erred in determining that Johnson was competent to
proceed pro se in spite of his ignorance of some legal rules and concepts.

¶22 Johnson next argues that the circuit court’s determination is
undermined by concerns the prosecutor voiced about Johnson’s “ability to
represent himself.” According to Johnson, because the prosecutor was in “an
equally opportune position” as the court to observe Johnson’s conduct and
demeanor, the prosecutor’s concerns should carry “some weight” in determining
whether Johnson had the minimum competency required to proceed pro se.

¶23 We disagree. Johnson cites no legal authority to support the
proposition that the prosecutor’s opinion should carry “some weight” in the
analysis of whether a defendant is competent to represent himself. See State v.
Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (a court need
not consider arguments that are unsupported by legal citations or are otherwise
undeveloped). Moreover, when read in context, it appears that the prosecutor’s
concerns were less about Johnson’s competency and more about his actions
throughout the case, which the prosecutor believed demonstrated that Johnson was
“malingering” and attempting to repeatedly “delay this case.”

¶24 Lastly, Johnson argues that the circuit court’s determination was
erroneous because the court did not properly account for “the history of
competency concerns” in Johnson’s case. We disagree. The court was tasked

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No. 2024AP2074-CR

with evaluating whether Johnson was competent to proceed pro se at the time of
trial, when Johnson requested the court to do so. It is not necessarily pertinent
that Johnson may have exhibited behavior that raised questions about his
competency to be tried at an earlier point in his case.

¶25 Accordingly, for the reasons explained above, we conclude that the
circuit court did not clearly err when it determined that Johnson was competent to
represent himself at trial.

II. Directed Verdict

¶26 We now turn to Johnson’s argument that the circuit court erred in
granting a directed verdict in the responsibility phase of the bifurcated trial. For
reasons we now explain, we conclude that the court did not err.

¶27 As noted, when a criminal defendant enters pleas of not guilty and
NGI, WIS. STAT. § 971.165 requires a bifurcated trial. The first phase of the trial
determines guilt, and the second phase determines whether the defendant will be
held responsible for the criminal conduct. See WIS. STAT. §§ 971.15, 971.165. A
defendant is not responsible for criminal conduct when, as a result of a mental
disease or defect, the defendant lacked substantial capacity either to appreciate the
wrongfulness of his or her conduct, or to conform his or her conduct to the
requirements of the law at the time of the criminal conduct. See § 971.15(1).

¶28 The defendant bears the burden to prove that the defendant is not
responsible for the criminal offense due to mental disease or defect “to a
reasonable certainty by the greater weight of the credible evidence,” WIS. STAT.
§ 971.15(3), and may not have that issue presented to a jury without making a
“prima facie case,” State v. Kazee, 192 Wis. 2d 213, 223, 531 N.W.2d 332 (Ct.

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No. 2024AP2074-CR

App. 1995). A directed verdict against a defendant is proper if “there is no
credible probative evidence toward meeting the burden of establishing the defense
of not guilty by reason of mental disease or defect by a preponderance of the
evidence after giving the evidence the most favorable interpretation in favor of the
accused asserting the defense.” State v. Leach, 124 Wis. 2d 648, 663, 370
N.W.2d 240 (1985). On appeal from a decision to grant a motion for directed
verdict, the standard of review “is whether the [circuit] court was clearly wrong.”
Id. at 665 (quoting Greiten v. La Dow, 70 Wis. 2d 589, 598, 235 N.W.2d 677
(1975)).

¶29 Here, the circuit court concluded that a directed verdict was
appropriate with respect to Johnson’s defense of not guilty by reason of mental
disease or defect because it found that Johnson failed to provide sufficient
evidence that “the jury could rely upon” to make a determination in his favor.
Although the court noted that Johnson provided testimony that he had been
diagnosed with various mental health disorders, the court pointed out that Johnson
did not support his testimony with records or any other corroborating evidence.
The court also reasoned that even when crediting Johnson’s testimony that he
“wasn’t himself,” heard “spirits,” and had “paranoia” on the day of the battery,
Johnson did not explain how these symptoms made him unable to “conform his
actions … to the requirements of law” or appreciate the wrongfulness of his
conduct.

¶30 We conclude that the circuit court was not “clearly wrong” for
directing a verdict against Johnson under these circumstances. As noted, Johnson
had the burden to present sufficient evidence on two elements: that he had a
“mental disease or defect” at the time of the battery; and that “[a]s a result of the
mental disease or defect,” he lacked “substantial capacity” to conform his conduct

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No. 2024AP2074-CR

to law or appreciate the wrongfulness of his conduct. See WIS JI—CRIMINAL 605;
State v. Maggett, 2014 WI 67, ¶39, 355 Wis. 2d 617, 850 N.W.2d 42. Johnson
chose to carry this burden solely with his own testimony. Although expert
testimony is not an indispensable prerequisite to an NGI defense, our supreme
court has explained that “[i]n only an exceptional case with extraordinary facts
may a defendant carry his burden in the responsibility phase of a criminal trial by
relying solely on his own testimony.” Id., ¶7. This is no such case.

¶31 As the circuit court emphasized, Johnson did not provide any
records, medical or otherwise, to establish or support that he had “a mental disease
or defect” at the time of the battery. Instead, with respect to this first element,
Johnson testified about various symptoms he alleged to be experiencing that day,
among them, “paranoia,” “racing thoughts,” and hearing “spirits.” Although this
is no small assumption, we assume that Johnson’s trial testimony was sufficient on
its own to meet his burden to provide “credible, probative evidence” with respect
to this first element. See Leach, 124 Wis. 2d at 663. In other words, we assume
that a reasonable jury may have inferred that the symptoms that Johnson described
in his testimony were the result of a mental disease or defect that Johnson had at
the time of the battery. See WIS JI—CRIMINAL 605 (“Mental disease or defect is
an abnormal condition of the mind which substantially affects mental or emotional
processes.”).

¶32 However, even making this assumption in Johnson’s favor, as the
circuit court noted, Johnson did not explain how these various symptoms made
him unable to conform his conduct to the law or appreciate the wrongfulness of his
conduct. Put another way, it does not necessarily follow that because Johnson
experienced “paranoia” and “racing thoughts” and heard “spirits,” that he would
lack substantial capacity to conform his conduct to the law or appreciate the

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No. 2024AP2074-CR

wrongfulness of his conduct. Many people suffer from mental illness and retain
the capacity to understand and control their conduct. Thus, it was incumbent on
Johnson to provide some evidence of a link between the symptoms he was
experiencing and his capacity at the time of battery. See Leach, 124 Wis. 2d at
664 (juries may not be left to “speculat[e],” “conjecture,” or “theorize” as to an
ultimate fact based on a “mere possibility” (citation omitted)).

¶33 At best, Johnson testified that the spirits he heard made him believe
that the correctional officer he assaulted was “going to kill [him].” However,
Johnson did not elaborate on this claim in any meaningful way. The circuit court
also had appointed three experts to evaluate Johnson—each of whom had
completed and filed reports with the court in which they opined that Johnson did
not lack capacity—and the court was aware that the State intended to call at least
one of these experts to testify at trial. Therefore, we conclude that the court was
not “clearly wrong” when it determined that Johnson could not meet his burden
based on his testimony alone. See Maggett, 355 Wis. 2d 617, ¶¶50-51 (concluding
that the circuit court did not err in determining that the defendant could not meet
his burden with his testimony alone in part because “the court knew that the State
had substantial evidence,” the “most detrimental” being an expert that “was
prepared to testify for the State”).

III. Resentencing

¶34 Johnson argues that he is entitled to resentencing because his trial
counsel provided ineffective assistance of counsel at his sentencing hearing and
that the court erroneously exercised its discretion in imposing a consecutive
sentence. We address Johnson’s arguments about resentencing in that order.

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No. 2024AP2074-CR

A. Ineffective Assistance of Counsel

¶35 A defendant has the right to effective assistance of counsel at
sentencing. Darden v. Wainwright, 477 U.S. 168, 184 (1986). To succeed on a
claim of ineffective assistance of counsel, a defendant has the burden to prove that
trial counsel’s performance was deficient, and also that the deficiency prejudiced
the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984).

¶36 To show deficient performance, “the defendant must show that
counsel’s representation fell below an objective standard of reasonableness.” Id.
at 687-88. To show prejudice, “[t]he defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding”—in this case, the sentencing hearing—“would have been
different.” Id. at 694; see also State v. Anderson, 222 Wis. 2d 403, 408, 588
N.W.2d 75 (1998). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694.

¶37 Here, Johnson argues that trial counsel was constitutionally
ineffective for “asserting that the circuit court had to impose a consecutive
sentence.” Johnson points out that counsel’s erroneous assertion was based on
counsel’s misinterpretation of a state statute, and he argues that the “[f]ailure to
understand controlling authority is deficient performance as a matter of law.”
Johnson further argues that he was prejudiced by counsel’s error because it
deprived Johnson of “any opportunity … to receive a concurrent sentence.” In
other words, the argument is that had counsel understood that the court could
impose a concurrent sentence and argued for a concurrent sentence, there is a
reasonable probability that the result of Johnson’s sentencing would have been

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No. 2024AP2074-CR

different. That is, there is a reasonable probability that the court would have
imposed a concurrent sentence, rather than a consecutive sentence.

¶38 We disagree. Even assuming that trial counsel’s failure to correctly
understand the law constituted deficient performance, we are not persuaded that
there is a reasonable probability that the result of Johnson’s sentencing hearing
would have been different. At the postconviction hearing, the circuit court
explained that based on “the seriousness of the offense” and the need to deter
“people in the prison population” from committing similar acts, its intent “was to
have additional time for Mr. Johnson to serve beyond whatever he was serving in
prison already.” The court further explained that “counsel informing me that it
had to be consecutive really didn’t play a factor into my decision making, and it
would have been a consecutive sentence anyway, essentially in order to affect the
results that I wanted in that particular case.” Under these circumstances, our
confidence in the outcome of Johnson’s sentencing is not undermined.

¶39 Moreover, our conclusion that the result of the sentencing hearing
would not have been different is bolstered when we consider the argument that
trial counsel did make at Johnson’s sentencing. Although counsel was under the
mistaken impression that he could not argue for a concurrent sentence, counsel
argued for a sentence that was close to that in substance. Specifically, counsel
asked the court to order an “imposed and stayed sentence” and “place [Johnson]
on probation,” the effect being that Johnson would not be required to serve any
additional confinement time, unless he violated the conditions of his probation. In
other words, the court was presented with a sentencing option that did not
automatically result in additional confinement time. Given that the court chose

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No. 2024AP2074-CR

not to exercise that option, we are not persuaded that, but for counsel’s error, the
outcome of the sentencing hearing would have been different.4

B. Exercise of Discretion

¶40 Lastly, Johnson argues that he is entitled to resentencing on the
ground that the circuit court “failed to exercise discretion in ordering a consecutive
sentence.” Specifically, Johnson contends that the court was required by law to
provide an on-the-record explanation of why the sentence imposed was
consecutive, and that because the court did not do so, it erroneously exercised its
discretion. In support of his argument, Johnson cites to our decision in State v.
Hall, 2002 WI App 108, ¶8, 255 Wis. 2d 662, 648 N.W.2d 41, in which we stated
that, “[i]n sentencing a defendant to consecutive sentences, the trial court must
provide sufficient justification for such sentences and apply the same factors
concerning the length of a sentence to its determination of whether sentences
should be served concurrently or consecutively.”

4
In his reply brief, Johnson also argues that trial counsel’s error prejudiced him because
he was deprived of the opportunity to argue the disposition of his choosing, and that the prejudice
was “not the ultimate sentence being consecutive.” As we understand it, he seems to be arguing
that he did not have to establish a reasonable probability that he would have received a different
sentence.

As a general rule, we will not “consider issues raised by appellants for the first time in a
reply brief.” See Swartwout v. Bilsie, 100 Wis. 2d 342, 346 n.2, 302 N.W.2d 508 (Ct. App.
1981). Even so, Johnson’s argument appears to be somewhat at odds with the legal standard. As
stated, the legal standard requires us to consider whether “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding”—in this case, the sentencing
hearing—“would have been different.” See Strickland v. Washington, 466 U.S. 668, 694 (1984).
Thus, our task requires us to consider counsel’s error in light of the outcome. As we explain in
the text, even if Johnson’s counsel had understood the law correctly and argued for a concurrent
sentence, we are not persuaded that there is a reasonable probability of a different outcome—i.e.,
the imposition of a sentence that was not consecutive.

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No. 2024AP2074-CR

¶41 Johnson’s argument is unavailing. Although at first blush Hall may
appear to support Johnson’s argument, in subsequent decisions, we have rejected
arguments that were almost identical to Johnson’s and explained that such
interpretations of Hall are not sound. See, e.g., State v. Berggren, 2009 WI App
82, ¶45, 320 Wis. 2d 209, 769 N.W.2d 110. In Hall, we determined that the
circuit court in that case erroneously exercised its discretion because it provided
inadequate reasons for the consecutive sentences it imposed. See Hall, 255 Wis.
2d 662, ¶5. However, we did not establish in Hall “a new procedural requirement
at sentencing that the [circuit] court [must] state separately why it chose a
consecutive rather than a concurrent sentence.” Berggren, 320 Wis. 2d 209, ¶45
(explaining the Hall decision). Instead, Hall “emphasized the well-settled right of
defendants to have the relevant and material factors influencing their sentences
explained on the record.” Id.

¶42 Here, the circuit court considered the relevant and material factors
on the record when it imposed Johnson’s sentence. Specifically, the sentencing
transcript shows that the court considered, among other things, the gravity of the
offense, the protection of the public, Johnson’s character, and his rehabilitative
needs. Although the court did not explicitly articulate its reasoning for imposing a
consecutive rather than a concurrent sentence during the sentencing hearing, such
an explanation was not required. And, given that the court provided “a rational
and explainable basis” for Johnson’s sentence, we are not persuaded that it
erroneously exercised its discretion. See McCleary v. State, 49 Wis. 2d 263, 276-
77, 182 N.W.2d 512 (1971).

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No. 2024AP2074-CR

CONCLUSION

¶43 For the reasons outlined above, the judgment of conviction and
postconviction order are affirmed.

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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