COURT OF APPEALS

DECISION

DATED AND FILED

January 22, 2020

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal Nos. 2018AP817-CR

2018AP818-CR

Cir. Ct. Nos. 2016CF2472

2016CF2652

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MICHAEL L. WINFIELD,

DEFENDANT-APPELLANT.

APPEALS from judgments and orders of the circuit court for 

Milwaukee County: PEDRO COLON, Judge. Affirmed. 

Before Brash, P.J., Kessler and Dugan, 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). 
Nos. 2018AP817-CR

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2

¶1 PER CURIAM. Michael L. Winfield appeals judgments entered 

after he pled guilty to four felonies: second-degree recklessly endangering safety, 

operating a vehicle without the owner’s consent, fleeing an officer, and burglary as 

a party to a crime. He also appeals orders denying his motions for postconviction 

relief from his aggregate sentence of sixteen and one-half years of imprisonment. 

The circuit court concluded that Winfield did not demonstrate either the existence 

of a new factor or that he was sentenced on the basis of inaccurate information. 

The circuit court therefore denied his postconviction motions without a hearing. 

We agree with the circuit court, and we additionally conclude that Winfield fails to 

show on appeal that his aggregate sentence violates the prohibition against cruel 

and unusual punishment contained in the Eighth Amendment of the United States 

Constitution. We affirm. 

BACKGROUND

¶2 According to the criminal complaint in Milwaukee County case No. 

2016CF2472, which underlies appeal No. 2018AP817, Winfield participated in 

two armed carjackings on June 4, 2016. A.L. told police that she was driving her

GMC Terrain and had come to a complete stop when a minivan struck her car 

from behind. The force of the impact pushed her car into the vehicle ahead of 

hers, a Ford Escape. Two men emerged from the minivan and approached A.L. 

One, later identified as Winfield, pointed a gun at her and demanded that she get 

out of her car. While she was taking her three-year-old child out of the back seat, 

Winfield hit her and her child with the gun, eventually shoving both victims to the 

ground and injuring them. Winfield then got into A.L.’s car and fled the scene. 

His coactor took the keys from the driver of the Ford Escape and also drove away.
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¶3 Approximately two hours later, officers saw Winfield driving the 

GMC Terrain on a city street and activated their squad car’s emergency lights and 

siren to initiate a traffic stop. Winfield did not comply, and police in pursuit 

observed that he drove at speeds exceeding seventy miles per hour, disregarded 

stop signs and traffic lights, drove through a park, and endangered other motorists 

and pedestrians as he successfully evaded police. Later that evening, officers 

again observed Winfield driving the GMC Terrain and arrested him. The State 

charged him with six felonies: two counts of armed robbery as a party to a crime,

and one count each of physical abuse of a child, operating a vehicle without the 

owner’s consent, second-degree recklessly endangering safety, and fleeing or 

eluding an officer. He faced an aggregate term of sixty years and six months of 

imprisonment. See WIS. STAT. §§ 943.32(2) (2015-16),1 948.03(3)(b), 943.23(3), 

941.30(2), 346.04(3), 939.50(3)(c), (g), (i).

¶4 In Milwaukee County case No. 2016CF2652, which underlies appeal 

No. 2018AP818, the State alleged that on May 16, 2016, and again on May 18, 

2016, Winfield and numerous coactors broke into Milwaukee car dealerships early 

in the morning, seized keys from the businesses, and drove several vehicles off the 

lots. On May 20, 2016, Winfield was arrested in one of the stolen cars. The State 

charged Winfield with two counts of burglary as a party to a crime and two counts 

of taking and driving a vehicle without the owner’s consent. He faced an 

aggregate term of thirty-seven years of imprisonment. See WIS. STAT.

§§ 943.10(1m)(a), 943.23(2), 939.05, 939.50(3)(f), (h).

 

1

 All references to the Wisconsin Statutes are to the 2015-16 version unless otherwise 

noted.
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4

¶5 Within a few months, Winfield decided to resolve each case with a 

plea agreement. In case No. 2016CF2472, Winfield pled guilty to second-degree 

recklessly endangering safety, operating a vehicle without the owner’s consent,

and fleeing an officer. In case No. 2016CF2652, Winfield pled guilty to one count 

of burglary as a party to a crime. The State agreed to recommend a prison 

sentence for the burglary and a substantial prison sentence for the other three 

crimes, all without specifying a recommended term of imprisonment, and to 

recommend that Winfield serve the burglary sentence concurrently with any other 

sentence imposed. Additionally, the State moved to dismiss and read in the 

remaining six charges pending against Winfield. As a result of his plea 

agreements, Winfield reduced his aggregate maximum term of imprisonment from 

ninety-seven years and six months to twenty-nine years and six months.

¶6 The matters proceeded to a joint sentencing hearing in September 

2016. At the outset of the proceeding, the State advised the circuit court that 

Winfield was eighteen years old and a high school student at the time he 

committed the crimes in these cases. The State then described Winfield’s juvenile 

record, explaining that Winfield was adjudicated delinquent for second-degree 

sexual assault when he was fifteen years old and for battery when he was sixteen 

years old. The State went on to discuss the crimes in the instant cases in detail and 

disclosed that Winfield’s coactors described him as the ringleader.

¶7 Winfield, by counsel, did not dispute that prison was the appropriate 

disposition and asked the circuit court to impose an aggregate six-year term of 

imprisonment bifurcated as two years of initial confinement and four years of 

extended supervision. In support of this position, trial counsel described 

Winfield’s troubled background, explaining that his mother died when he was 
Nos. 2018AP817-CR

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5

fourteen years old and that his father was imprisoned. Trial counsel told the 

circuit court that Winfield had a learning disability, carried diagnoses of attentiondeficit hyperactivity disorder (ADHD) and post-traumatic stress disorder (PTSD), 

and that he had a history of “anger problems,” “low self-confidence,” “upsetting 

thoughts that interfere with his ability to interact in society,” and “issues with 

sleeping, eating, [and] pain.” In response to the circuit court’s inquiry, trial 

counsel explained that the information he offered about Winfield’s mental health 

was contained in a ten-page psychological report prepared in December 2015 by 

one Dr. Gust-Brey. Trial counsel added that he did not think it necessary to file 

the report and did not do so.

¶8 Following the parties’ statements, the circuit court discussed the 

gravity of the offenses, Winfield’s character, and the need to protect the public. 

The circuit court recognized that Winfield had serious mental health problems and 

had suffered many misfortunes, but the circuit court put greatest emphasis on the 

terror that Winfield’s actions aroused and the extent to which he “posed [a] danger 

to everybody around [him].” The circuit court reminded Winfield that he had 

victimized a woman and a “helpless child” at gun point and engaged in “erratic, 

incredibly dangerous driving.” 

¶9 At the conclusion of the sentencing remarks, the circuit court 

imposed three consecutive sentences in case No. 2016CF2472: an evenly 

bifurcated ten-year term of imprisonment for second-degree recklessly 

endangering safety; and two three-year terms, each consisting of one year of initial 

confinement and two years of extended supervision, for the crimes of operating a 

motor vehicle without owner’s consent and fleeing an officer. For the burglary 

conviction in case No. 2016CF2652, the circuit court imposed a twelve and one-
Nos. 2018AP817-CR

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6

half year term of imprisonment, bifurcated as seven and one-half years of initial 

confinement and five years of extended supervision, and the circuit court ordered 

Winfield to serve that sentence concurrently with any other sentence. The 

aggregate disposition was thus sixteen and one-half years of imprisonment, 

bifurcated as seven and one-half years of initial confinement and nine years of 

extended supervision.2

¶10 Winfield filed a postconviction motion seeking relief from his 

sentences on two related grounds. First, he claimed that a new factor, namely, 

information about his mental health, warranted sentence modification. Second, he 

claimed that he should be resentenced because his original sentences were based 

on inaccurate and incomplete information about his “behavioral/emotional health 

status.” 

¶11 In support of the postconviction motion, Winfield submitted a fourpage excerpt—pages one, eight, nine, and ten—from the ten-page psychological 

examination prepared in December 2015 by Dr. Karyn L. Gust-Brey. The excerpt 

reflects Gust-Brey’s view that Winfield carried five diagnoses: conduct disorder;

oppositional defiant disorder; ADHD; specific learning disorder with impairment 

in reading; and perpetrator of nonparental child sexual abuse. The excerpt 

 

2

 The circuit court also found Winfield eligible to participate in the Wisconsin substance 

abuse program and the challenge incarceration program after he has served three and one-half 

years of initial confinement. When an inmate successfully completes either program, his or her 

remaining initial confinement time is converted to time on extended supervision. See WIS. STAT.

§§ 302.045(3m)(b), 302.05(3)(c)2. 
Nos. 2018AP817-CR

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7

discloses that the sources of information on which Gust-Brey relied in preparing 

her report included materials from Wraparound Milwaukee services providers.3 

¶12 As additional attachments to the postconviction motion, Winfield 

submitted five pages of materials from Wraparound Milwaukee, including three 

pages of a Plan of Care dated May 19, 2015, and two pages of clinical progress 

notes for the period from November 17, 2015, through January 19, 2016. These 

materials reflected a history of additional diagnoses, specifically PTSD and 

depression, and suggested that some months before Winfield committed the 

crimes in the instant cases, he may have stopped taking the medication that had in 

the past “decreased ... the frequency” of his “rough behavioral instances.” Finally, 

Winfield submitted several pages of information about conduct disorders and 

ADHD from the websites webmd.com, cdc.gov, and CurrentPsychiatry.com. In 

light of his submissions, he contended that he was entitled to a more lenient 

aggregate sentence because his crimes “were unavoidable products of his multiple 

then-untreated behavioral/emotional pathologies.” 

¶13 The circuit court denied Winfield’s claims without a hearing and 

then denied Winfield’s motion for reconsideration. This appeal followed.

4

 

3

 Wraparound Milwaukee is a program operated by the Milwaukee County Behavioral 

Health Division. The program coordinates care for Milwaukee youth with serious behavioral, 

emotional, and mental health needs. See https://www.dhs.wisconsin.gov/medicaid/wam.htm (last 

visited Nov. 26, 2019).

4

 With our permission, Winfield filed his opening brief under seal. Neither the State’s 

response brief nor Winfield’s reply brief was similarly filed under seal. The sealed brief is 

hereby deemed unsealed only to the extent that it is quoted, referenced, or described in this 

opinion. 
Nos. 2018AP817-CR

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8

DISCUSSION

¶14 Winfield asserts that the circuit court wrongly denied him a hearing 

to present his sentencing claims. We review this assertion under a familiar 

standard. We consider de novo whether a postconviction motion on its face 

alleges material facts that, if true, would entitle the defendant to an evidentiary 

hearing. See State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433. 

“If the motion raises such facts, the circuit court must hold an evidentiary 

hearing.” Id. If the motion does not present such facts, however, 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 discretion to grant or deny a 

hearing. See id., ¶¶9, 12. “We review a circuit court’s discretionary decisions 

under the deferential erroneous exercise of discretion standard.” Id., ¶9. 

¶15 A motion sufficient to earn a postconviction hearing should allege 

within its four corners “who, what, where, when, why, and how.” See id., ¶23. 

Even if a postconviction motion contains such allegations, however, the circuit 

court may deny the defendant’s claims without a hearing when the record as a 

whole conclusively demonstrates that the defendant is not entitled to relief. See 

State v. Sulla, 2016 WI 46, ¶29, 369 Wis. 2d 225, 880 N.W.2d 659. With the 

foregoing in mind, we turn to the substance of Winfield’s contentions.5

 

5

 Winfield makes many arguments in his lengthy submissions, and we address some of 

those arguments differently from the way in which he presents them. We are not bound by the 

manner in which a party frames the issues. See Travelers Indem. Co. of Ill. v. Staff Right, Inc., 

2006 WI App 59, ¶8, 291 Wis. 2d 249, 714 N.W.2d 219. 
Nos. 2018AP817-CR

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9

¶16 Winfield first claims that the circuit court erroneously denied his 

motion for sentence modification based upon the alleged new factor of

information about his mental health. We disagree.

¶17 A new factor for purposes of sentence modification is “a fact or set 

of facts highly relevant to the imposition of sentence, but not known to the trial 

judge at the time of original sentencing, either because it was not then in existence 

or because ... it was unknowingly overlooked by all of the parties.” See State v. 

Harbor, 2011 WI 28, ¶40, 333 Wis. 2d 53, 797 N.W.2d 828 (citation omitted). A 

circuit court has inherent authority to modify a defendant’s sentence upon a 

showing of a new factor. See id., ¶35. To prevail, the defendant must satisfy a 

two-prong test. See id., ¶36. First, the defendant must demonstrate by clear and 

convincing evidence that a new factor exists. See id. This presents a question of 

law, which we review de novo. See id., ¶¶33, 36. Second, the defendant must 

demonstrate that the new factor justifies sentence modification. See id., ¶37. This 

determination rests in the circuit court’s discretion. See id. If a defendant fails to 

satisfy one prong of the test, a court need not address the other. See id., ¶38. 

¶18 The record shows that Winfield did not demonstrate the existence of 

a new factor because he failed to show that the psychological information he 

presented in his postconviction motion had been “unknowingly overlooked by all 

of the parties” at sentencing. See id., ¶40. To the contrary, his trial counsel 

advised the sentencing court that he was reading from a ten-page psychological 

evaluation prepared by Gust-Brey in December 2015, and, as we have seen, that 

evaluation disclosed that it drew on reports and assessments from Wraparound 

Milwaukee services providers. The record thus plainly shows that at the time of 

sentencing, Winfield was aware of the Gust-Brey evaluation and its source 
Nos. 2018AP817-CR

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10

materials. Therefore, although Winfield did not offer the sentencing court the 

entirety of the documents that he subsequently submitted in the postconviction 

proceedings, Winfield himself did not lack knowledge of those documents. 

Accordingly, the documents and the information that they contain do not amount 

to a new factor as a matter of law.6 See State v. Crockett, 2001 WI App 235, ¶14, 

248 Wis. 2d 120, 635 N.W.2d 673. The circuit court properly denied this claim 

without a hearing. See Allen, 274 Wis. 2d 568, ¶12.

¶19 In light of the foregoing, we need not consider the second prong of 

Winfield’s new factor claim. See Harbor, 333 Wis. 2d 53, ¶38. Both parties have 

addressed that aspect of the claim, however, and for the sake of completeness we 

do so as well. We are satisfied that the circuit court properly exercised its 

discretion in concluding that, even assuming Winfield offered new information in 

his postconviction motion, he nonetheless failed to demonstrate that the 

information warranted sentence modification. 

¶20 The postconviction order reflects the circuit court’s findings that 

carjackings, thefts, and physical attacks such as those Winfield perpetrated in 

these cases harm local businesses, damage property, and threaten the safety and 

security of the police and citizens alike. Further, the circuit court found that 

Winfield’s crime spree necessitated “significant punishment,” notwithstanding his 

troubled background and history of mental health problems. In the circuit court’s 

 

6 Winfield suggests in his reply brief that his trial counsel was ineffective for failing to 

present at sentencing all of the information submitted in support of postconviction relief, and he 

requests a hearing to address trial counsel’s alleged ineffectiveness. Winfield did not raise the 

issue of trial counsel’s ineffectiveness in either his opening brief or in his postconviction motion. 

We decline to consider an issue raised for the first time in a reply brief. See State v. Anderson, 

215 Wis. 2d 673, 683, 573 N.W.2d 872 (Ct. App. 1997).
Nos. 2018AP817-CR

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11

view, the sentences imposed in these cases were necessitated by a key 

determination: “the community cannot be subjected to the danger presented by 

this kind of criminality.” As the circuit court explained, Winfield’s contentions

that he exhibited “‘longstanding violent, disruptive, rule-transgressing ... 

uncontrollable impulsive, aggressive, and transgressive behaviors’ as set forth in 

the [postconviction] motion wholly underline the need for substantial punishment 

and community protection.” The circuit court therefore concluded that the 

information Winfield presented did not earn him a more lenient sentence.7

¶21 Winfield, of course, disagrees with that conclusion. Sentencing

decisions, however, rest in the circuit court’s discretion, see State v. Gallion, 2004 

WI 42, ¶17, 270 Wis. 2d 535, 678 N.W.2d 197, and therefore the circuit court—

not the defendant and not this court—has the duty to “navigate the fine line 

between what is clearly too much time behind bars and what may not be enough,” 

see State v. Ramuta, 2003 WI App 80, ¶25, 261 Wis. 2d 784, 661 N.W.2d 483.

¶22 The postconviction order reflects a proper exercise of discretion. 

The circuit court did not make any legal errors, and it fully set forth its reasons for 

concluding that Winfield did not present information warranting sentence 

modification. See Harbor, 333 Wis. 2d 53, ¶63. Accordingly, we reject 

Winfield’s challenges to the decision denying sentence modification based on an 

alleged new factor. 

 

7

 We observe that the policy of this state is that a person is not absolved of responsibility 

for his or her crimes when the person suffers from “an abnormality manifested only by repeated 

criminal or otherwise antisocial conduct.” See WIS. STAT. § 971.15(1)-(2). 
Nos. 2018AP817-CR

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¶23 Winfield next asserts that he is entitled to resentencing on the ground 

that the circuit court sentenced him based on inaccurate information. A defendant 

has a due process right to be sentenced upon accurate information. State v. 

Tiepelman, 2006 WI 66, ¶9, 291 Wis. 2d 179, 717 N.W.2d 1. To establish a 

denial of this right, the defendant must show both that the disputed information 

was inaccurate and that the sentencing court actually relied on the inaccurate 

information. See id., ¶26. Whether a defendant has been denied the due process 

right to be sentenced on accurate information is a constitutional question we 

review de novo. See id., ¶9. 

¶24 Winfield argues that the circuit court here sentenced him based on an 

“incorrect, inaccurate, and incomplete picture” that he describes as consisting of 

five parts: (1) he “had no chronic behavior disorders manifesting continually 

through impulsive/compulsive (i.e. involuntary) ... behaviors”; (2) PTSD and 

ADHD were his only behavioral or mental health disorders and they “did not 

manifest through persistent impulsive/compulsive (i.e. involuntary) transgressive 

and/or violent conduct”; (3) his criminal conduct “was [the] voluntary behavior of 

a healthy but immature youth”; (4) his criminal conduct was not a symptom of a 

mental illness or a behavioral disorder “so its seriousness was not mitigated by any 

medical considerations”; and (5) his culpability “was not mitigated by any 

medical, mental health, or behavioral-emotional considerations.”

¶25 Preliminarily, we observe that numerous aspects of Winfield’s 

argument are flatly contradicted by the record. The circuit court did not sentence 

Winfield as “a healthy but immature youth,” nor did the circuit court suggest that 

his personal circumstances did not include any mitigating facts. To the contrary, 

the circuit court explicitly told Winfield: “You have a serious diagnosis. I don’t 
Nos. 2018AP817-CR

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doubt that you have PTSD. You’ve been through a lot in your life. You caused a 

lot to people [sic] but you’ve also been through a lot for your life and I 

acknowledge that.”

¶26 We next observe that, although Winfield repeatedly asserts that the 

materials he filed in support of his postconviction motion show that his 

“transgressive and/or violent” conduct was “involuntary,” he does not point to any 

expert opinion supporting that claim.8 To the contrary, an entry in the November 

2015 physician’s notes states that Winfield “refuses to take responsibility for his 

behaviors,” not that his behaviors are excused because he cannot control them. 

¶27 Relatedly, and critically, Winfield did not include an expert opinion 

linking any of his criminal conduct in the instant cases to any medical cause. 

Indeed, the last of the professionals’ notes and evaluations that he submitted was 

prepared four months before he committed any of the crimes at issue here. As the 

circuit court aptly observed, Winfield’s repeated assertion that his crimes in these 

cases were symptoms of his various conditions therefore “falters upon the thin legs 

of speculation.” To be sure, Winfield requested a hearing to provide additional 

information, including expert testimony from unidentified sources, but the wellestablished methodology for seeking postconviction relief required him to 

demonstrate in his postconviction motion the material facts explaining precisely 

whose testimony would establish precisely what proposition and how that 

testimony would prove his claim. See Allen, 274 Wis. 2d 568, ¶¶23-24.

 

8

 Our review of the briefs and the record reveals that the word “involuntary” appears 110 

times in the text of Winfield’s appellate brief and an additional forty-four times in the reply brief, 

but the word does not appear even once in the professionals’ evaluation, plan of care, and clinical 

notes that Winfield submitted in support of his postconviction motion.
Nos. 2018AP817-CR

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¶28 We turn to the remaining components of Winfield’s contention that 

the circuit court relied on inaccurate information. “Whether the circuit court 

‘actually relied’ on ... incorrect information at sentencing, according to the case 

law, turns on whether the circuit court gave ‘explicit attention’ or ‘specific 

consideration’ to the inaccurate information, so that the inaccurate information 

‘formed part of the basis for the sentence.’” State v. Travis, 2013 WI 38, ¶28, 347 

Wis. 2d 142, 832 N.W.2d 491 (citations omitted). Here, Winfield states at the 

outset of his appellate argument that the defense “overlooked the relevant correct 

information” and failed to present it to the sentencing court. This contention does 

not support a claim of inaccurate information at sentencing. Rather, it reflects that 

the circuit court sentenced Winfield based on information that he now views as 

incomplete. Winfield, however, does not cite any authority—and we know of 

none—supporting the proposition that offenders must be resentenced merely 

because the circuit court had less than complete information about them. A 

sentencing court can never possess the entirety of information about a defendant.9 

Nothing in Tiepelman transforms that reality into a due process violation.

¶29 Moreover, we agree with the State that, insofar as Winfield’s claim 

turns on information that the sentencing court actually received, Winfield’s 

 

9

 Indeed, Winfield himself has ensured that neither the circuit court nor this court has the 

complete picture his health care services providers presumably painted in their reports and notes. 

He hastened to advise the circuit court at sentencing that he did not think it necessary to file the 

entirety of the psychological evaluation that Gust-Brey prepared in December 2015, and he 

submitted only four of its ten pages with his postconviction motion. As to the five pages of 

materials that Winfield submitted from Wraparound Milwaukee, these consist of two pages of 

physician’s notes describing a visit in November 2015 and a cancellation in January 2016; and 

three pages of a Plan of Care, the last of which reflects that it was “completed on 5/19/15” and 

was “page 9 of 24.” When a defendant’s sentencing presentation does not include information 

within the party’s knowledge and control, we generally view the omission as a tactical decision,

not as a basis for relief. Cf. Rosado v. State, 70 Wis. 2d 280, 288-89, 234 N.W.2d 69 (1975). 
Nos. 2018AP817-CR

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15

allegation is not that the information was inaccurate but that the circuit court 

assessed the information differently than Winfield would have preferred. Such an 

allegation, however, does not identify an error. A sentencing court has broad 

discretion to determine the factors it deems significant and to weigh those factors 

as it sees fit. See State v. Stenzel, 2004 WI App 181, ¶16, 276 Wis. 2d 224, 688 

N.W.2d 20. Here, the circuit court learned about Winfield’s troubled past and 

found that Winfield had a “serious diagnosis.” The circuit court concluded, 

however, that this information did not support more lenient sentences than those 

imposed because Winfield was dangerous and must serve a significant period of 

time in prison to protect the public and to punish him. Winfield may disagree with 

that calculation, but his disagreement does not earn him resentencing. Cf. State v. 

Prineas, 2009 WI App 28, ¶34, 316 Wis. 2d 414, 766 N.W.2d 206 (stating that 

assessment of a circuit court’s exercise of sentencing discretion turns on whether 

the circuit court exercised such discretion, not whether the circuit court could have 

exercised discretion differently).

¶30 In sum, Winfield fails to show, by clear and convincing evidence, 

that the circuit court sentenced him based on inaccurate information. The circuit 

court properly denied this claim without a hearing.

¶31 Last, Winfield asserts that his aggregate sentence violates his right 

under the Eighth Amendment of the United States Constitution to be free from 

cruel and unusual punishment.10 He states that “neither the [circuit] court nor the 

 

10

 The protections of the Eighth Amendment of the United States Constitution are made 

applicable to the states through the Fourteenth Amendment. See State v. Ninham, 2011 WI 33, 

¶45, 333 Wis. 2d 335, 797 N.W.2d 451. We presume that Winfield intended to invoke both 

amendments in support of his constitutional claim.
Nos. 2018AP817-CR

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postconviction court addressed this issue.” This statement is misleading, as it 

suggests that the circuit court ignored one of his claims. In fact, Winfield failed to 

raise his Eighth Amendment challenge in the circuit court at any time.11 “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. In the interests of judicial efficiency, however, 

we elect to discuss the claim.

¶32 Winfield argues that because his criminal conduct was a symptom of 

his behavioral disorders, the circuit court wrongly punished him for his medical 

status. In support, he directs our attention to the United States Supreme Court’s 

statement that “a law which made a criminal offense of ... a disease would 

doubtless be universally thought to be an infliction of cruel and unusual 

punishment in violation of the Eighth and Fourteenth Amendments.” See 

Robinson v. California, 370 U.S. 660, 666 (1962). He tacitly acknowledges 

clarifying language in Powell v. Texas, 392 U.S. 514 (1968), but he asserts that 

the Powell plurality opinion, if read in conjunction with the concurrence and with 

Robinson, supports his claim “that the Eighth Amendment prohibits the state from 

punishing an involuntary act which is the unavoidable consequence of one’s 

status.”

 

11

 If Winfield presented his Eighth Amendment claim to the circuit court, he has not 

directed our attention to the place in the record where he did so. “The party raising [a 

constitutional] issue on appeal has the burden of establishing, by reference to the record, that the 

issue was raised before the circuit court.” State v. Caban, 210 Wis. 2d 597, 604, 563 N.W.2d 501 

(1997). It is not our role to scour the record for indications that an issue was preserved for 

appeal. Regardless, we have reviewed the record, including the sentencing transcript, the 

postconviction motion, and the motion for reconsideration, and found no hint of an Eighth 

Amendment claim in the circuit court proceedings.
Nos. 2018AP817-CR

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¶33 We are not persuaded. Leaving aside Winfield’s failure to establish 

that the criminal conduct at issue here was either involuntary or a symptom of any 

medical condition Winfield may have, the Wisconsin Supreme Court long ago 

rejected his construction of Robinson and Powell.

In Robinson the accused was charged under a statute which 

made it a crime to be addicted to narcotics. The [C]ourt 

held that such addiction was a disease and the accused’s 

condition was merely symptomatic of that affliction. Thus, 

the [C]ourt concluded, the accused could not be punished 

for his condition. The rationale of Robinson was extended 

to cases involving public drunkenness where the accused 

was an alcoholic in [a fourth circuit decision], but the 

[S]upreme [C]ourt rejected that extension in Powell. The 

[C]ourt in Powell distinguished the Robinson case by 

stating that the accused was not charged for being an 

alcoholic but for being drunk in public. The rule in Powell

indicates that the Robinson rationale only applies where the 

alleged unlawful conduct is the accused’s condition.

Loveday v. State, 74 Wis. 2d 503, 509-10, 247 N.W.2d 116 (1976) (internal 

citations omitted).

¶34 The Powell Court ultimately upheld a defendant’s state conviction 

for public drunkenness, notwithstanding the defendant’s alcoholism. The Court 

explained that the thrust of Robinson “is that criminal penalties may be inflicted 

only if the accused has committed some act, has engaged in some behavior, which 

society has an interest in preventing.” See Powell, 392 U.S. at 533. The defendant 

in Powell, however, had not been punished for “a mere status”; rather, the State

had imposed “a criminal sanction for public behavior.” See id. at 532.

¶35 In the instant case, the circuit court sentenced Winfield for his illegal 

acts, not for his afflictions. Therefore, nothing in Robinson or Powell renders 

Winfield’s sentences unconstitutional. See State v. Gardner, 2006 WI App 92, 
Nos. 2018AP817-CR

2018AP818-CR

18

¶14, 292 Wis. 2d 682, 715 N.W.2d 720 (stating that the Supreme Court made clear 

in Powell that Robinson “does not prohibit penalizing conduct”). 

¶36 Accordingly, to the extent that Winfield has a claim under the Eighth 

Amendment, that claim is governed by the well-settled rule that the Eighth 

Amendment prohibits “sentences that are grossly disproportionate to the severity 

of the crime.” See State v. Borrell, 167 Wis. 2d 749, 775, 482 N.W.2d 883 

(1992), clarified on other grounds by State v. Greve, 2004 WI 69, ¶31, 272 

Wis. 2d 444, 681 N.W.2d 469. 

“‘[W]hat constitutes adequate punishment is ordinarily left 

to the discretion of the trial judge. If the sentence is within 

the statutory limit, appellate courts will not interfere unless 

clearly cruel and unusual.’” A sentence is clearly cruel and 

unusual only if 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.’”

State v. Ninham, 2011 WI 33, ¶85, 333 Wis. 2d 335, 797 N.W.2d 451 (internal 

citations omitted). Further, “[a] sentence well within the limits of the maximum 

sentence is not so disproportionate to the offense committed as to shock the public 

sentiment and violate the judgment of reasonable people concerning what is right 

and proper under the circumstances.” State v. Berggren, 2009 WI App 82, ¶47, 

320 Wis. 2d 209, 769 N.W.2d 110 (citation omitted). 

¶37 When we review a claim that a defendant’s sentences are shocking 

and disproportionate, we compare the defendant’s aggregate sentence to the 

aggregate maximum sentence that the circuit court could have lawfully imposed. 

See id., ¶48. Here, Winfield faced a possible twenty-nine and one-half years of 

imprisonment for a series of vicious and dangerous crimes. The aggregate 
Nos. 2018AP817-CR

2018AP818-CR

19

sentence of sixteen and one-half years of imprisonment that he received was far 

below the aggregate statutory maximum, and therefore is not grossly 

disproportionate to the severity of his offenses. For all the foregoing reasons, we 

affirm. 

By the Court.—Judgments and orders affirmed.

This opinion will not be published. See WIS. STAT RULE 

809.23(1)(b)5. (2017-18).