State v. Cindy L. Cooper

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. 2025AP652-CR Cir. Ct. No. 2021CF553

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CINDY L. COOPER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Jefferson County: WILLIAM F. HUE and BENNETT J. BRANTMEIER, Judges.
Affirmed.

Before Kloppenburg, 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. 2025AP652-CR

¶1 PER CURIAM. Cindy L. Cooper appeals her sentence related to a
judgment of conviction for operating while intoxicated as a seventh offense
(“OWI 7th”) in violation of WIS. STAT. § 346.63(1)(a) (2023-24),1 and the denial
of her postconviction motion for resentencing without an evidentiary hearing. For
the reasons set forth below, we affirm.

BACKGROUND

¶2 The relevant facts are undisputed and derived from the evidence
presented at the jury trial.

¶3 Around 4:00 a.m. on November 3, 2021, Deputy William Johnson
was dispatched by the Jefferson County Sheriff’s Office to respond to a report of a
disabled car on County Highway N, south of Jaekel Road. On arrival at the scene,
Johnson saw a car parked partially in a lane of traffic and a woman sitting in the
driver’s seat. When Johnson parked his squad car behind the car, the woman
exited the car and met the officer near the driver’s side door. She identified
herself as Cooper and said that she had left her purse at home.

¶4 Cooper told Johnson that she was traveling from Jefferson to Fort
Atkinson when her car ran out of gas. Johnson observed that Cooper was not
dressed appropriately for the cold weather because she wore only slipper socks,
sweatpants, and a sweatshirt, and that she smelled of intoxicants, slurred her
speech, had bloodshot and glassy eyes, and struggled to balance. Cooper admitted
to drinking beer on the prior evening, stating she had stopped drinking about six

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

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No. 2025AP652-CR

hours ago, which she incorrectly estimated was around 6:30 p.m. Johnson offered
Cooper the opportunity to warm up in his squad car, which she accepted.

¶5 As Cooper sat in the back of the squad car, Johnson returned to
Cooper’s car and looked inside. Johnson observed a wine glass filled with red
liquid in the center cupholder console. Johnson lifted the glass to his nose and
believed it to be alcoholic wine based on the odor.

¶6 Johnson returned to the squad car and asked Cooper about the wine
glass. Cooper admitted that the beverage inside was alcoholic but denied that it
belonged to her or that she had consumed the alcohol in the glass. Johnson
advised Cooper that he would like her to undergo field sobriety testing. Because it
was cold and Cooper was not properly dressed, Johnson transported her in his
squad car to the sheriff’s department to conduct the testing.

¶7 Johnson had Cooper perform two field sobriety tests: the horizontal
gaze nystagmus test and the walk and turn test. Cooper exhibited clues of
impairment on each. Johnson also requested that Cooper perform the one-leg
stand test, but Cooper was unable to do so. Johnson arrested Cooper for operating
while intoxicated and read the Informing the Accused form to her. Cooper
consented to a blood draw, which showed a blood alcohol concentration (“BAC”)
of 0.253 g/100mL.

¶8 The State charged Cooper with OWI 7th in violation of WIS. STAT.
§ 346.63(1)(a) and operating with a prohibited alcohol concentration as a seventh
offense in violation of § 346.63(1)(b).

¶9 The case proceeded to a jury trial, and Cooper was found guilty of
both counts. She received a single conviction for OWI 7th. See WIS. STAT.

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No. 2025AP652-CR

§ 346.63(1)(c) (“[i]f a person is found guilty of any combination of par. (a), (am),
or (b), for acts arising out of the same incident or occurrence, there shall be a
single conviction for purposes of sentencing”).

¶10 Following the jury trial, Cooper requested that the circuit court move
immediately to sentencing, which it did.

¶11 The parties agreed on a thirty-six-month period for the revocation of
Cooper’s driver’s license and the installation of an ignition interlock device, and a
$1,400 fine. Although the parties agreed on a seven-year imprisonment term, they
disagreed about the length of initial confinement and extended supervision.

¶12 The State argued for a sentence of four years of initial confinement
and three years of extended supervision and acknowledged that this sentence
recommendation was above the three-year statutory minimum requirement for
initial confinement but below the range of sentences based on mitigated factors set
forth in the Third Judicial District OWI/PAC Sentencing Guidelines (“the
sentencing guidelines”), which noted a range between four and one-half years and
five years of initial confinement.2 The State reasoned that while Cooper’s prior
OWIs were “aged,” there were still the aggravating factors of Cooper’s high BAC
and the open intoxicant in her car.

¶13 Cooper’s counsel argued for three years of initial confinement and
four years of extended supervision. Cooper’s counsel emphasized that the

2
See District OWI/PAC Sentencing Guidelines Committee, Third Judicial District
OWI/PAC Sentencing Guidelines for Offenses Committed On or After March 1, 2020, Wis. Ct.
Sys., https://www.wicourts.gov/publications/fees/docs/d3owi2020.pdf. The complete sentencing
guidelines are not provided in the appellate record.

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No. 2025AP652-CR

following mitigating factors necessitated the circuit court imposing the statutory
minimum period of confinement: it had been eleven years since Cooper’s prior
OWI and Cooper had a long period of sobriety; there was no bad driving that led
to the charges; her successful performance on bond; and her treatment efforts for
her mental health issues and compliance with taking her prescribed medication.

¶14 The circuit court sentenced Cooper to four years of initial
confinement and three years of extended supervision.

¶15 Cooper filed a motion for postconviction relief seeking resentencing,
arguing that the circuit court erroneously exercised its discretion in imposing a
$1,400 fine and a four-year period of initial confinement. In the alternative,
Cooper argued that trial counsel had performed ineffectively at sentencing,
necessitating a Machner hearing.3 In a written decision, the court denied
Cooper’s postconviction motion without a hearing, concluding that the motion did
not allege sufficient facts that entitled Cooper to relief or to a Machner hearing.
Cooper appeals.

DISCUSSION

¶16 On appeal, Cooper renews her postconviction arguments that the
circuit court erroneously exercised its discretion at sentencing when it imposed a
$1,400 fine and four years of initial confinement, instead of the statutory minimum
three years of initial confinement. In the alternative, Cooper argues that the court

3
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979). A Machner
hearing is “[t]he evidentiary hearing to evaluate counsel’s effectiveness, which includes counsel’s
testimony to explain [counsel’s] handling of the case.” State v. Balliette, 2011 WI 79, ¶31, 336
Wis. 2d 358, 805 N.W.2d 334.

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No. 2025AP652-CR

erred in denying her postconviction motion for relief based on ineffective
assistance of trial counsel at sentencing without a Machner hearing. We reject
each argument in turn and affirm.

I. Sentencing

¶17 Because sentencing falls within the discretionary authority of the
circuit court, on review we “will not interfere with the court’s sentencing decision
unless the court erroneously exercised its discretion.” State v. Jorgensen, 2003
WI 105, ¶12, 264 Wis. 2d 157, 667 N.W.2d 318 (citation omitted); State v.
Gallion, 2004 WI 42, ¶17, 270 Wis. 2d 535, 678 N.W.2d 197. “[S]entencing
decisions of the circuit court are generally afforded a strong presumption of
reasonability because the circuit court is best suited to consider the relevant factors
and demeanor of the convicted defendant.” Gallion, 270 Wis. 2d 535, ¶18
(citation omitted). We will search the record to determine whether, in the proper
exercise of discretion, the sentence imposed can be sustained. State v. Hall, 2002
WI App 108, ¶19, 255 Wis. 2d 662, 648 N.W.2d 41 (citing McCleary v. State, 49
Wis. 2d 263, 282, 182 N.W.2d 512 (1971)).

¶18 However, when discretion is exercised on the basis of clearly
irrelevant or improper factors, there is an erroneous exercise of discretion.
McCleary, 49 Wis. 2d at 278. “The defendant has the burden of showing that the
‘sentence was based on clearly irrelevant or improper factors.’” Gallion, 270
Wis. 2d 535, ¶72 (citation omitted).

¶19 The sentencing discretion of the circuit court is constrained in
several additional ways. First, there are three primary sentencing factors a court
must consider at sentencing, referred to as the Gallion factors: the protection of
the public; the gravity of the offense; and the rehabilitation needs of the defendant.

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No. 2025AP652-CR

Id., ¶23; WIS. STAT. § 973.017(2) (requiring consideration of the Gallion factors
and any applicable mitigating or aggravating factors).

¶20 Second, in addition to the Gallion factors, criminal OWI convictions
are generally subject to statutory minimum and maximum sentences and courts
must also consider certain statutory aggregating factors. See WIS. STAT. §§ 346.65
(enumerating mandatory minimum periods of confinement), 973.017(3)-(8)
(enumerating aggregating factors). For example, pursuant to § 346.65(2)(am)6.,
an OWI 7th conviction is a class F felony, subject to a minimum of three years of
initial confinement and a maximum of seven and one-half years of initial
confinement. See also WIS. STAT. § 973.01(2)(b)6m. (“For a Class F felony, the
term of confinement in prison may not exceed 7 years and six months.”).

¶21 As noted, sentencing guidelines issued by the chief judge of each
judicial administrative district may be considered at sentencing for OWI
convictions. See WIS. STAT. § 346.65(2m)(a) (“The chief judge of each judicial
administrative district shall adopt guidelines … for the consideration of
aggravating and mitigating factors.”); see also Jorgensen, 264 Wis. 2d 157, ¶18
(use of guidelines that match up to appropriate sentences within statutory ranges
for considering aggravating and mitigating factors is not inappropriate). Although
sentencing guidelines for alcohol-related offenses do not specifically apply to WIS.
STAT. § 346.63(1)(a) convictions for driving or operating a motor vehicle while
under the influence of an intoxicant,4 which is the situation here, a sentencing
4
For violations of WIS. STAT. § 346.63(1)(am) or (b), which concern, respectively, a
person who drives or operates a motor vehicle with a detectable amount of a restricted controlled
substance in their blood or when the person has a prohibited alcohol concentration, the circuit
court may consider sentencing recommendations identified in district guidelines adopted by the
chief judge of the judicial administrative district in which the sentencing court is located. See
WIS. STAT. § 346.65(2m)(a).

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No. 2025AP652-CR

court may refer to sentencing guidelines when considering such an offense as long
as the guidelines are not applied by rote and do not form the sole basis for the
court’s sentence. Jorgensen, 264 Wis. 2d 157, ¶27.

¶22 Like the graduated-penalty system which Wisconsin has adopted for
OWI-related offenses, see State v. Forrett, 2022 WI 37, ¶7, 401 Wis. 2d 678, 974
N.W.2d 422, the sentencing guidelines applicable here are divided into categories
based on the number of alcohol-related offenses and the level of the individual’s
BAC.5 Higher numbers of OWI-related offenses and BAC levels correspond to
more significant penalties. The categories are further distinguished between cases
with mitigating factors, such as pre-conviction assessment and treatment or aged
prior offenses, and cases with aggravating factors, such as a having an open
intoxicant in the car or a particularly high BAC.6 For example, the sentencing
guidelines for an OWI 7th for an individual with a BAC level of “.25 and above”
with mitigating factors, the category in which Cooper fell as determined by the
circuit court, recommend an initial range of confinement between four and one-
half to five years and a fine of $6,200. Sentencing Guidelines at 13. When there
are aggravating factors, the range of confinement is the same but the
recommended fine increases to $7,000. Sentencing Guidelines at 13.

5
See Sentencing Guidelines, supra note 2.
6
The sentencing guidelines identify additional “mitigating factors” as including:
verifiable consistent sobriety; good driving record; minimal poor driving; cooperation with
authorities; and positive attitude/steps toward problem recognition. Sentencing Guidelines at 2.
Additional “aggravating factors” include: poor driving; accident or injury involved; poor prior
driving record; lack of remorse; recent prior OWI/PAC offense; operating without valid driving
privileges; poor/limited problem recognition as evidenced by prior treatment history or lack
thereof; amount consumed; and uncooperative/belligerent behavior, among others. Sentencing
Guidelines at 2.

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No. 2025AP652-CR

¶23 We quickly reject Cooper’s assertion that the circuit court
erroneously exercised its discretion in imposing a $1,400 fine, which is the lowest
fine recommended in the sentencing guidelines for an OWI 7th with the lowest
BAC category of between a .02 and .079 g/100ml. with mitigating factors. This
was a significant downward departure from the $6,200 fine recommended in the
sentencing guidelines for the “.25 and above” g/100ml range with mitigating
factors. Consider also WIS. STAT. § 346.65(2)(g)3. (“If a person convicted had an
alcohol concentration of 0.25 or above, the applicable minimum and maximum
fines under par. (am) 3. to 5. are quadrupled.”). The record reveals that the $1,400
fine was suggested by the State, and specifically not objected to by trial counsel.
“It is a fundamental principle of appellate review that issues must be preserved at
the circuit court. Issues that are not preserved at the circuit court, even alleged
constitutional errors, generally will not be considered on appeal.” State v.
Huebner, 2000 WI 59, ¶10, 235 Wis. 2d 486, 611 N.W.2d 727. Therefore, we
conclude that Cooper has forfeited this issue in the sentencing proceedings, and
we consider it no further.

¶24 We also conclude that Cooper has not demonstrated that the circuit
court erroneously exercised its discretion when it imposed four years of initial
confinement. Specifically, Cooper has not shown that the court considered
irrelevant or improper factors or applied an incorrect standard of law.

¶25 First, when imposing Cooper’s sentence, the circuit court properly
recognized the applicability of the mandatory minimum three-year period of initial
confinement set forth in WIS. STAT. § 346.65(2)(am)6. See § 346.65(2)(am)6.
(For an OWI 7th, “[t]he court shall impose a bifurcated sentence under [WIS.
STAT. §] 973.01 and the confinement portion of the bifurcated sentence imposed
on the person shall be not less than 3 years.”). The court also referred to the

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No. 2025AP652-CR

sentencing guidelines which recommended four and one-half to five years of
initial confinement for an OWI 7th offender with a BAC above 0.25 g/100mL.
The court agreed with trial counsel that, despite Cooper’s high BAC of
.253 g/100mL, Cooper’s conduct fell within the mitigated range because of her
efforts in treatment, in abstaining from alcohol consumption, and in taking
medication for her mental health issues.

¶26 Second, although the circuit court recognized mitigating factors, it
nonetheless recognized the serious nature of an OWI 7th conviction and the
danger that repeated instances of driving while intoxicated pose to the public. The
court specifically stated that Cooper “just has too many OWIs and that’s a
dangerous, dangerous thing. So, nobody can afford other people’s lives [being]
dependent on her addressing these issues outside the prison system.” From these
remarks, we conclude that the court additionally considered Cooper’s
rehabilitation needs and identified Cooper’s noticeable improvement since her
arrest due to medication, the importance of keeping Cooper stable, and Cooper’s
need for continued treatment in a confined setting in order to mitigate the threat
that repeated driving while intoxicated poses to the public. Contrary to Cooper’s
argument, in imposing a four-year initial confinement period, the court did not
overly rely on the sentencing guidelines because it imposed less than the
recommended range due to Cooper’s improved condition with treatment, but more
than the statutory minimum given the threat to the public that Cooper’s driving
while intoxicated imposed and the repeated nature of Cooper’s crime.
Accordingly, although the court did not itemize each of the three required Gallion
factors, it addressed each factor in its remarks and articulated a rational, reasoned
basis for the sentence.

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No. 2025AP652-CR

¶27 Cooper argues that the circuit court erroneously exercised its
discretion when it sentenced her to four years of initial confinement in two ways:
the court did not begin at, or justify deviating from, the statutory minimum of
three years of initial confinement and the court should have relied on a different
BAC category in the district guidelines. We reject each argument in turn.

¶28 Although Cooper accurately summarizes the requirement that circuit
courts impose “the minimum amount of … confinement which is consistent with
the protection of the public, the gravity of the offense and the rehabilitative needs
of the defendant,” McCleary, 49 Wis. 2d at 276 (citation omitted), this
requirement does not mandate that a court default to adopting the mandatory
minimum sentence unless an upward deviation is justified. For this court to
impose such a presumption would go beyond the mandatory minimum statutory
language and impose a requirement not contained in the statutory language. See
WIS. STAT. § 346.65 (2)(am)6. (“The court shall impose a bifurcated sentence
under [WIS. STAT. §] 973.01 and the confinement portion of the bifurcated
sentence imposed on the person shall be not less than 3 years.”). The effect would
be to improperly limit the discretion of the sentencing court. See McCleary, 49
Wis. 2d at 278. Furthermore, Cooper cites no supporting legal authority for the
proposition that the mandatory minimum sentence must be presumptively imposed
unless a sentencing court specifically justifies a deviation. We need not consider
arguments that are unsupported by legal citations or are otherwise undeveloped.
State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).

¶29 We also reject Cooper’s argument that the circuit court should have
used a lower BAC category in the sentencing guidelines to account for scientific
error in the calculation of the BAC. As noted, the court was allowed to consider
the guidelines for an OWI offense under WIS. STAT. § 346.63(1)(a), but it was not

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No. 2025AP652-CR

obligated to do so. See Jorgensen, 264 Wis. 2d 157, ¶2 (a defendant “sentenced
under § 346.63(1)(a) may potentially be sentenced by a court referring to the
sentencing guidelines established for § 346.63(1)(b)”). Indeed, the court imposed
a shorter period of confinement than the range provided in the guidelines for an
individual with a BAC of 0.253 g/100mL and the existence of mitigating
circumstances. Cooper does not persuasively explain why the court’s
consideration of the applicable BAC category constitutes an erroneous exercise of
discretion. Again, we need not address undeveloped arguments. See Associates
Fin. Servs. Co. of Wis., Inc. v. Brown, 2002 WI App 300, ¶4 n.3, 258 Wis. 2d
915, 656 N.W.2d 56 (the court may decline to consider conclusory and
undeveloped arguments).

¶30 In sum on this issue, we conclude that the circuit court did not
erroneously exercise its discretion when it sentenced Cooper to four years of initial
confinement.

II. Ineffective Assistance of Counsel

¶31 In the alternative, Cooper argues that the circuit court improperly
denied her postconviction motion alleging ineffective assistance of trial counsel
without conducting a Machner hearing. We conclude that Cooper was not
entitled to a Machner hearing because the record as a whole conclusively
establishes that she is not entitled to relief.

¶32 An evidentiary hearing on a postconviction ineffective assistance of
counsel claim is not mandatory, even if the motion alleges sufficient facts, which
if true, would entitle the movant to relief, if the record as a whole conclusively
demonstrates that the defendant is not entitled to relief. State v Ruffin, 2022 WI
34, ¶¶3, 37, 401 Wis. 2d 619, 974 N.W.2d 432.

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No. 2025AP652-CR

¶33 A defendant alleging ineffective assistance of counsel must
demonstrate that counsel performed deficiently and the performance prejudiced
the defendant. Id., ¶29; Strickland v. Washington, 466 U.S. 668 (1984). If the
defendant fails to show one part of the analysis, the claim fails and no analysis of
the other part is necessary. Ruffin, 401 Wis. 2d 619, ¶29.

¶34 To prove deficient performance, a defendant must show that, when
considering all the circumstances, counsel’s representation fell below an objective
standard of reasonableness. Id., ¶30. Alleging simply that trial counsel’s
performance was “imperfect or less than ideal” is insufficient to demonstrate
deficient performance. State v. Balliette, 2011 WI 79, ¶22, 336 Wis. 2d 358, 805
N.W.2d 334. There is a strong presumption that counsel’s performance fell
“within the wide range of reasonable professional assistance.” Strickland, 466
U.S. at 689 (citation omitted).

¶35 Cooper alleges that her trial counsel performed deficiently at
sentencing because counsel failed to provide the circuit court with mitigating
information. This claim is conclusively disproven by the record. See Ruffin, 401
Wis. 2d 619, ¶35 (“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”). Cooper’s counsel argued for the statutory minimum initial confinement
period of three years because of mitigating factors, including that: eleven years
had passed since Cooper’s prior OWI; Cooper had been clean and sober for over a
decade before her relapse; there was no evidence of bad driving in this case;
during the pendency of the case, Cooper addressed issues with her mental health
by meeting with therapists and psychologists, obtaining a diagnosis and complying
with taking recommended medications; and Cooper performed well on bond and
abstained from alcohol consumption during the pendency of the action while

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No. 2025AP652-CR

monitored. The court accepted these arguments and determined that Cooper’s
situation contained mitigating circumstances for sentencing purposes. As noted,
the court imposed a shorter period of initial confinement than the lower range of
confinement recommended in the sentencing guidelines.

¶36 To the extent that Cooper intends to argue that counsel was deficient
for failing to request a presentence investigation (PSI) or provide a defense
sentencing memorandum, we note that neither of these documents is required for
sentencing. State v. Jackson, 187 Wis. 2d 431, 439, 523 N.W.2d 126 (Ct. App.
1994) (PSI not required at sentencing). Moreover, the record demonstrates that
Cooper directed trial counsel to proceed to sentencing directly after trial, without a
PSI or a defense sentencing memorandum. See Balliette, 336 Wis. 2d 358, ¶26
(“Even decisions made [by counsel] with less than a thorough investigation may
be sustained if reasonable, given the strong presumption of effective assistance
….”).

¶37 In sum on this issue, in the context of an adequate sentencing
argument by trial counsel which raised pertinent mitigating factors, in light of
Cooper’s desire to proceed to sentencing immediately following trial, and there
being no requirement for the production of a PSI or defense sentencing
memorandum prior to sentencing, the record conclusively demonstrates that
Cooper was not entitled to relief on her ineffective assistance of counsel claim and
no Machner hearing was required.

CONCLUSION

¶38 Accordingly, for the reasons set forth above, we affirm.

By the Court.—Judgment and order affirmed.

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No. 2025AP652-CR

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

15