2022 WI APP 25

COURT OF APPEALS OF WISCONSIN

PUBLISHED OPINION

Case No.: 2021AP943

Complete Title of Case: 

†Petition for Review filed

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

HAJJI Y. MCREYNOLDS,

 DEFENDANT-APPELLANT.†

Opinion Filed: April 12, 2022

Submitted on Briefs: January 11, 2022

JUDGES: Stark, P.J., Hruz and Gill, JJ.

Concurred:

Dissented:

Appellant

ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the 

briefs of Colleen Marion, assistant state public defender, Madison. 

Respondent

ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the 

brief of Kiernan M. O’Day, assistant attorney general and Joshua L. 

Kaul, attorney general. 
2022 WI App 25

COURT OF APPEALS

DECISION

DATED AND FILED

April 12, 2022

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 No. 2021AP943-CR Cir. Ct. No. 2014CF872

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

HAJJI Y. MCREYNOLDS,

 DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for 

Eau Claire County: WILLIAM M. GABLER, SR. and EMILY M. LONG, Judges. 

Affirmed. 

Before Stark, P.J., Hruz and Gill, JJ. 

¶1 STARK, P.J. Hajji Y. McReynolds appeals from a judgment, 

entered after a jury trial, convicting him of two counts of delivery of a controlled 
No. 2021AP943-CR

2

substance and from an order denying his postconviction motion.1 McReynolds 

claims multiple errors, both at trial and at sentencing. He argues that his trial 

counsel provided constitutionally ineffective assistance by failing to object to both 

inadmissible vouching evidence provided by the investigating officer as well as the 

State’s elicitation of improper character evidence concerning McReynolds’ alleged 

affiliation with the Vice Lord gang. McReynolds also claims that WIS. STAT.

§ 973.017(10m)(b) (2019-20),

2

is unconstitutional as applied to him. Specifically, 

he argues that he was denied his constitutional rights to a public trial and to be 

present at sentencing when, after the sentencing court imposed his sentences, it 

failed to state in open court the reasons for the sentences imposed and instead filed 

a written statement of the reasons for its sentencing decision. 

¶2 We conclude that the investigating officer’s trial testimony regarding 

the truthfulness of information provided by the confidential informant during the 

investigation did not constitute impermissible vouching testimony in violation of 

State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984). McReynolds’ 

trial counsel, therefore, did not perform deficiently by failing to object to that 

testimony. We further conclude that McReynolds was not prejudiced by his 

counsel’s failure to object to the admission of improper character evidence 

pertaining to his alleged gang affiliation.

¶3 As to McReynolds’ as-applied constitutional claims, we first 

determine he forfeited his claim that his right to a public trial was violated when the 

 

1

 The Honorable William M. Gabler, Sr. presided over McReynolds’ trial and entered the 

judgment of conviction. We will refer to Judge Gabler as the “sentencing court.” The Honorable 

Emily M. Long entered the order denying McReynolds’ postconviction motion. We will refer to 

Judge Long as the “postconviction court.”

2

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

noted.
No. 2021AP943-CR

3

sentencing court filed a written statement with the reasons for its sentencing 

decision after the judgment of conviction was entered. We decline to apply the 

forfeiture rule to McReynolds’ subsequent argument that his right to be present at 

sentencing was violated through the court’s application of WIS. STAT.

§ 973.017(10m)(b), but we ultimately conclude that his as-applied constitutional 

claim in that regard is without authority and underdeveloped. While McReynolds 

has a constitutional and statutory right to be present at the imposition of his sentence, 

he does not show beyond a reasonable doubt that the court’s use of 

§ 973.017(10m)(b) to file a written statement of its rationale for the sentences

imposed violated his constitutional right to be present at sentencing. Accordingly, 

we affirm.

BACKGROUND

¶4 The State charged McReynolds in a four-count complaint after two 

informant-initiated controlled drug buys occurred.

3

 The case proceeded to trial on

two delivery of cocaine charges.

¶5 Investigator Aaron Ranallo of the Eau Claire County Sheriff’s Office 

testified that he was “contacted by a confidential informant who indicated that [he] 

would be able to purchase cocaine from Mr. McReynolds.” Ranallo, who had 

previously worked with the informant, coordinated with him to set up two controlled 

drug buys. Ranallo testified in detail about the process involved with controlled 

drug buys in general and for this case in particular. For each buy in this case, the 

 

3

 McReynolds was initially charged with one count of delivery of cocaine (more than one 

gram but less than five grams), one count of delivery of cocaine (less than one gram), and two 

counts of misdemeanor bail jumping. On the first day of trial, the State moved to dismiss the 

misdemeanor bail jumping charges and to reduce the first count of delivery of cocaine to less than 

one gram. The circuit court granted both motions.
No. 2021AP943-CR

4

informant was provided with $150 in prerecorded money to purchase the drugs, he 

was searched beforehand, and he wore a wire and carried a video camera. After 

each drug buy took place, the informant gave an oral statement to Ranallo.

¶6 When asked about his motivation for contacting the police to conduct 

these controlled drug buys, the informant suggested that his motives were altruistic. 

He testified that he was a former drug user—who acknowledged being convicted of 

a crime ten times—and was “sort of” friends with McReynolds, but he “felt that 

[McReynolds] was trying to get me to use again.... So I felt that [McReynolds] 

needed to be off the streets.” The informant was also paid $100 for each drug buy 

in exchange for cooperating with law enforcement.

¶7 The informant testified that he bought drugs from McReynolds during 

the first controlled drug buy on August 11, 2014. After the encounter, the informant 

provided police with an oral statement as well as three small plastic bags, which 

contained a white substance later confirmed to be cocaine. The State played the 

video of the drug buy for the jury, which was seven minutes and forty-seven seconds 

long, but the exchange itself was not visible, as the camera was in the palm of the 

informant’s hand.

¶8 The jury learned that between the first and second buys, an altercation 

occurred between the informant and McReynolds. McReynolds had asked the 

informant to meet him, and when he arrived, McReynolds “hit [the informant] in 

the nose, broke [his] nose. Then [McReynolds] left.” The informant testified that 

McReynolds did this because the informant “owed one of [McReynolds’] friends 

some money.” According to the informant, the friend was an individual called 

“KG.” The State then asked, “[W]ho is KG?” The informant responded, “One of 

[McReynolds’] Vice Lord friends.”
No. 2021AP943-CR

5

¶9 Days after the altercation, McReynolds called the informant and 

apologized, stating, “My fault. I shouldn’t have done what I did.” During that same 

call, McReynolds also told the informant, “And I’m still all good,” meaning that he 

had drugs available for purchase. The informant and Ranallo then set up the second 

drug buy. The informant admitted that his motivation for offering to conduct the 

second drug buy was that he was “mad” at McReynolds. However, he also testified

that his anger did not motivate him to lie about what happened.

¶10 The second controlled drug buy took place on August 18, 2014. The 

informant testified that when McReynolds arrived at the agreed-upon location, 

McReynolds was with the individual previously identified as KG. The State asked 

again, “And who is KG?” The informant responded, “His Vice Lord brother.” The 

informant got into the vehicle with McReynolds and KG, and they “went to a 

location around the corner somewhere, a couple blocks down the street.” According 

to the informant, McReynolds got out and “went between some houses, came back, 

[and] handed [him] the cocaine.” When Ranallo met up with the informant, the 

informant again “turned over two plastic bags containing a white substance,” which 

later tested positive for cocaine. The State also played the video of the second drug 

buy for the jury, which lasted approximately thirty-two minutes. McReynolds was 

visible on the video, but the drug exchange was not visible.

¶11 The jury found McReynolds guilty of both charges. At the sentencing

hearing, the court stated its sentencing decision on the record, imposing five years’ 

initial confinement and five years’ extended supervision on each count, to be served 

concurrently. The sentencing court then invoked WIS. STAT. § 973.017(10m)(b), 

explaining that the statute allowed the court to “state the reasons for its sentencing 

decision in writing and include the written statement in the record.” According to 

the court,
No. 2021AP943-CR

6

 I’ve never done that before, but I’m going to do it here 

today, and the reason for that is, Mr. McReynolds, really, as 

a courtesy to you, and I mean this sincerely, as a courtesy to 

you. I don’t want to go through the long and ponderous 

explanation [here] that I’m going to make in—in writing 

because I just think that you may consider it demeaning and 

insulting. I don’t want you to feel demeaned. I don’t want 

you to feel insulted. I don’t want you feel lectured to.

 You know, and particularly in light of the fact that, you 

know, in this particular case there were three separate times 

in which you refused to come to court, one on October 3rd, 

2014; another one on December 8th, 2014; and then, finally, 

the long experience we had on the first day of the jury trial 

on April 9th, 2015 when you refused to come, you were 

forced to show up in the wheelchair, you were disruptive in 

the courtroom, you had to be removed to the video room, 

you rolled off the wheelchair and unplugged the video 

connection, and you had to be restrained by jail staff. You 

ultimately did cooperate, but, really, I think that it is not in 

your interest for me to go through the long analysis [at the 

hearing] that I am going to do in writing. 

Three days later, the court filed its “Written Reasons for Sentencing Decision.”

4

¶12 McReynolds’ first postconviction counsel filed a WIS. STAT.

RULE 809.32 no-merit report. McReynolds subsequently filed a “lengthy document 

challenging his convictions,” which we deemed his response to the no-merit report. 

We rejected the no-merit report, noting an issue of arguable merit regarding the jury 

instructions. McReynolds’ first postconviction counsel then informed this court that 

he would file a WIS. STAT. § 974.02 postconviction motion, and we dismissed the 

no-merit appeal. McReynolds’ subsequently filed postconviction motion addressed

 

4

 As McReynolds does not challenge the sentencing court’s exercise of discretion as to the 

sentences it imposed, we will not recount the sentencing factors it considered.
No. 2021AP943-CR

7

only the jury instruction issue that we previously identified in our no-merit review.

5

 

After a Machner6 hearing, where McReynolds’ trial counsel testified and 

McReynolds refused to appear, the postconviction court denied the motion.

¶13 McReynolds then filed a notice of appeal from the postconviction 

court’s oral ruling. In response, we entered an order stating that we lacked 

jurisdiction to review the ruling until it was reduced to writing and extending the 

deadline for the court to decide the postconviction motion. We also stated that 

McReynolds’ notice of appeal would be “deemed filed on the date of the entry of 

the order on the postconviction motion.”7 The court filed the written order on 

September 26, 2019.8

 

5

 We agree with the State that McReynolds has abandoned this jury instruction issue by 

failing to raise it on appeal. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588 

N.W.2d 285 (Ct. App. 1998) (“[A]n issue raised in the trial court, but not raised on appeal, is 

deemed abandoned.”).

6

 State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

7

 McReynolds’ postconviction motion was filed February 5, 2019. The Machner hearing 

occurred on June 14, 2019. However, the record also contains an order, entered February 26, 2019, 

denying the motion for postconviction relief. As the State acknowledges, it is unclear from the 

record why the postconviction court initially denied the motion, then later held a Machner hearing, 

and again orally denied the motion. We also noted this issue in our order, and we “deem[ed] the 

[February 26, 2019 order] to be superseded by the circuit court’s decision to hold a hearing and 

rule further on the postconviction motion.”

8

 During this period, McReynolds’ first postconviction counsel also moved to withdraw, 

and the postconviction court granted the motion and ordered that the Office of the State Public 

Defender (SPD) appoint new counsel. The SPD filed a letter seeking reconsideration of the court’s 

order, noting that the issues seemed to involve disagreements in legal strategy and that McReynolds 

believes “that counsel somehow holds racist views towards himself.” In response, the court vacated 

its original order and entered a new order, allowing first postconviction counsel to withdraw but 

not ordering the SPD to appoint new counsel. 
No. 2021AP943-CR

8

¶14 McReynolds, now represented by new postconviction counsel, filed a 

second postconviction motion that gives rise to this appeal.9 McReynolds sought a 

new trial based on the erroneous admission of both improper character and vouching 

evidence, or, in the alternative, ineffective assistance of counsel based on both of 

those issues. He also sought resentencing based on the sentencing court’s use of 

WIS. STAT. § 973.017(10m)(b), which he argued violated his right to be present at 

sentencing. The State argued that McReynolds’ newest postconviction motion was 

barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), 

based on this being his “third series of postconviction arguments” and the fact that 

the postconviction court had already denied his prior motion.

¶15 Following a nontestimonial hearing, the postconviction court denied 

McReynolds’ motion, concluding that there was no vouching evidence and that 

McReynolds was not prejudiced by counsel’s failure to object to the improper 

character evidence. The court did not reach the merits on McReynolds’ argument

that his sentencing occurred in an unconstitutional manner, as it concluded that the 

sentencing court complied with the WIS. STAT. § 973.017(10m)(b) requirements. 

The court also did not address the Escalona bar. McReynolds appeals. We discuss 

additional facts below, where relevant to our analysis.

DISCUSSION

 

On December 16, 2019, we entered an order extending the time for McReynolds to file his

brief, noting this history and observing that it “appears that McReynolds is now proceeding pro 

se.” On January 14, 2020, the SPD filed a motion to extend the time for filing a postconviction 

motion or notice of appeal, asserting that the time to file a notice of appeal lapsed while the motion 

to withdraw as counsel was pending. We granted that motion and later entered an order clarifying 

that we were construing the prior motion “as also including a notice of voluntary dismissal.” We

dismissed McReynolds’ appeal. 

9

 McReynolds also filed another motion to extend the deadline to file a postconviction 

motion or notice of appeal, which we also granted.
No. 2021AP943-CR

9

I. Escalona Bar

¶16 As an initial matter, the State again argues on appeal that this case is 

procedurally barred under Escalona. “We need finality in our litigation.” 

Escalona, 185 Wis. 2d at 185. Thus, absent a sufficient reason, a defendant is 

procedurally barred from raising claims “in a [WIS. STAT. §] 974.06 motion that 

could have been raised on direct appeal or in a [WIS. STAT. §] 974.02 motion.” 

Escalona, 185 Wis. 2d at 181-82, 184-86; § 974.06(4). Whether a sufficient reason 

is stated for failing to bring claims earlier is a question of law subject to de novo 

review. State v. Romero-Georgana, 2014 WI 83, ¶30, 360 Wis. 2d 522, 849 

N.W.2d 668.

¶17 The State argues that because the postconviction court denied 

McReynolds’ first postconviction motion, “this present motion is a successive 

motion and is procedurally barred.” Citing State v. Evans, 2004 WI 84, ¶¶27, 29, 

273 Wis. 2d 192, 682 N.W.2d 784, abrogated on other grounds by State ex rel. 

Coleman v. McCaughtry, 2006 WI 49, ¶29, 290 Wis. 2d 352, 714 N.W.2d 900, the 

State asserts that “[o]nce the circuit court denied McReynolds’ original 

postconviction motion, McReynolds had the option to appeal that decision to this 

[c]ourt or let the time to appeal lapse,” but McReynolds “did not have the option to 

file a successive WIS. STAT. § 974.02 motion that raised entirely new arguments.” 

Further, the State claims that the arguments McReynolds now makes on appeal were 

known to him when he filed his first postconviction motion, and there is “simply no 

reason that McReynolds could not have made the arguments that he now makes in 

his first postconviction motion.”

¶18 McReynolds contends that his claims are not barred, as he obtained 

permission from this court to file a successive WIS. STAT. § 974.02 motion after his 
No. 2021AP943-CR

10

first appeal was voluntarily dismissed.10 According to McReynolds, he “is entitled 

to a (single) direct appeal from his judgment of conviction—and this is it.” Under 

the unique facts of this case, we agree.

¶19 As noted above, McReynolds’ first postconviction counsel filed a nomerit report, which we denied based on a jury instruction issue. McReynolds then 

filed a postconviction motion based on that purported error, alleging ineffective 

assistance of his trial counsel. Once the postconviction court denied that motion, he 

appealed to this court. While that appeal was pending, his first postconviction 

counsel moved to withdraw. Both before and after McReynolds obtained new 

postconviction counsel, we granted both of McReynolds’ requests to extend the 

WIS. STAT.RULE 809.30(2)(h) deadline to file a “notice of appeal or motion seeking 

postconviction” relief, and we granted the motion to voluntarily dismiss his first 

appeal. (Emphasis added.) The State did not object. 

¶20 The State’s reliance on Evans to object now is misplaced. In Evans,

the defendant asked appointed counsel “to close his file,” allowed his direct appeal 

rights to lapse, and then sought to have his direct appeal rights reinstated two years 

late. Evans, 273 Wis. 2d 192, ¶¶6-7, 11. Here, we granted McReynolds’ timely 

motion to file a successive postconviction motion and voluntarily dismiss his first 

appeal. His direct appeal rights did not lapse. Under the circumstances, and given 

 

10

 McReynolds also argues that the State waived this argument. McReynolds claims that 

despite the State arguing multiple times in its submissions before the postconviction court that the 

procedural bar set forth in State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), 

applied, the State waived its argument when it “retreated from requesting a ruling in its favor.” At 

the hearing, the State did again raise the issue, but it “defer[red]” to the court as to whether it would 

decide the motion on that basis, recognizing the pitfalls of “pav[ing] the way for a subsequent 

postconviction motion alleging ineffective assistance of postconviction counsel.” The court, 

thereafter, chose not to pursue the matter. Under the circumstances, the State did not waive the 

argument.
No. 2021AP943-CR

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the procedural history of this case, we conclude that McReynolds’ subsequent 

appeal of the denial of his postconviction motion is not barred.

II. Ineffective Assistance of Counsel

¶21 We next address McReynolds’ argument that his trial counsel 

provided constitutionally ineffective assistance using the well-known, two-pronged 

analysis provided in Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove 

ineffective assistance of counsel, a defendant must show both that counsel’s 

performance was deficient and that the defendant was prejudiced by counsel’s 

deficient performance. State v. Sholar, 2018 WI 53, ¶32, 381 Wis. 2d 560, 912 

N.W.2d 89. Under the first prong, “[c]ounsel’s conduct is constitutionally deficient 

if it falls below an objective standard of reasonableness.” State v. Thiel, 2003 WI 

111, ¶19, 264 Wis. 2d 571, 665 N.W.2d 305. However, “[j]udicial scrutiny of 

counsel’s performance must be highly deferential.” Strickland, 466 U.S. at 689. 

For the second prong, “[t]he defendant must show that there is a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different. A reasonable probability is a probability sufficient to 

undermine confidence in the outcome.” Id. at 694. However, a defendant need not 

prove the outcome would more likely than not be different in order to establish 

prejudice in ineffective assistance cases. Sholar, 381 Wis. 2d 560, ¶44 (citing 

Strickland, 466 U.S. at 693). If the defendant fails on one prong, we need not 

examine the other prong. Id. at 697. “The ultimate determination of whether 

counsel’s performance was deficient and prejudicial to the defense are questions of 

law which this court reviews independently.” State v. Johnson, 153 Wis. 2d 121, 

128, 449 N.W.2d 845 (1990).
No. 2021AP943-CR

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¶22 The postconviction court denied McReynolds’ second postconviction 

motion without an evidentiary hearing. McReynolds now seeks a Machner hearing 

on his ineffective assistance of counsel claim. A defendant, however, is not 

automatically entitled to an evidentiary hearing on his or her postconviction motion. 

State v. Bentley, 201 Wis. 2d 303, 308-11, 548 N.W.2d 50 (1996). The circuit court 

is required to hold an evidentiary hearing only if the defendant alleges “sufficient 

material facts that, if true, would entitle the defendant to relief.” State v. Allen, 

2004 WI 106, ¶14, 274 Wis. 2d 568, 682 N.W.2d 433. Whether a defendant’s 

motion “on its face” alleges sufficient material facts to entitle that defendant to relief 

is a question of law that we review de novo. Id., ¶9. If, on the other hand, the 

defendant’s motion “does not raise facts sufficient to entitle the movant to relief, or 

presents only conclusory allegations, or if the record conclusively demonstrates that 

the defendant is not entitled to relief,” the circuit court may either grant or deny a 

hearing in its discretion. Id. We review this decision “under the deferential 

erroneous exercise of discretion standard.” Id.

¶23 McReynolds argues that his trial counsel provided ineffective 

assistance in two ways: (1) by failing to object to Ranallo’s testimony purportedly 

vouching for the truthfulness of the informant in violation of Haseltine; and (2) by 

failing to object to the confidential informant’s statement that McReynolds was 

affiliated with the Vice Lord gang. For the reasons that follow, we conclude that 

counsel did not provide ineffective assistance and that the postconviction court 

properly exercised its discretion by denying his motion without an evidentiary 

hearing.

¶24 McReynolds first claims that the State committed a Haseltine

violation by eliciting improper testimony from Ranallo—that he believed the 

informant was telling the truth—and that counsel performed deficiently by failing 
No. 2021AP943-CR

13

to object to that testimony. In Haseltine, we held that “[n]o witness, expert or 

otherwise, should be permitted to give an opinion that another mentally and 

physically competent witness is telling the truth.” Haseltine, 120 Wis. 2d at 96. 

The purpose of this rule is to prevent a witness from usurping the jury’s role as a 

“lie detector in the courtroom.” See State v. Pittman, 174 Wis. 2d 255, 268, 496 

N.W.2d 74 (1993) (citation omitted); see also State v. Kleser, 2010 WI 88, ¶104, 

328 Wis. 2d 42, 786 N.W.2d 144 (“The essence of the rule prohibiting vouching 

testimony is that such testimony invades the province of the fact-finder as the sole 

determiner of credibility.”). To determine whether a witness’s testimony violates 

Haseltine, we examine the testimony’s purpose and effect. See Pittman, 174 

Wis. 2d at 268. This is a question of law that we review de novo. See State v. Davis, 

199 Wis. 2d 513, 519, 545 N.W.2d 244 (Ct. App. 1996). Further, even if a 

Haseltine violation occurred, it is only reversible error where the testimony “creates 

too great a possibility that the jury abdicated its fact-finding role” in relation to the 

witness or failed independently to find the defendant’s guilt. Haseltine, 120 Wis. 2d 

at 96.

¶25 McReynolds identifies four instances during the trial where Ranallo 

allegedly vouched for the informant’s credibility in violation of Haseltine. First, 

when Ranallo testified about an oral statement the informant gave after the first 

controlled drug buy, the State asked, “So do you believe this to be a truthful and 

accurate statement?” Ranallo responded, “Yes, I do.” In the second instance, which 

occurred immediately after the first, the State asked Ranallo what he believed 

happened on the day of the first controlled drug buy, and Ranallo stated that he 

agreed with the informant’s statement that McReynolds had sold the informant 

cocaine. The State then asked, “And do you have any reason to believe that [the 

informant] was in any way untruthful with respect to the information he provided to 
No. 2021AP943-CR

14

you?” Ranallo responded, “No.” Third, when discussing the second controlled buy 

and the altercation that occurred between McReynolds and the informant prior to 

that buy, the State asked Ranallo, “[W]ere you concerned about [the informant’s] 

credibility at that point?” Ranallo said, “No,” and when asked, “Why not?” Ranallo 

responded,

 [The informant] had explained that, you know, there was 

a physical altercation, and I—and [he] had said that he was 

injured during that. I met up with him, and he showed me 

the injuries that he had sustained, so I was able to corroborate 

that portion of it. And I was not given any information to 

lead me to believe that he was not being truthful. 

¶26 The fourth, and final, instance involved the informant’s oral statement 

after the second controlled drug buy. Similar to the first instance, the State asked 

Ranallo whether the informant’s statement was “consistent with what [he] observed 

or perceived during [his] observations of the controlled buy,” and Ranallo 

responded, “Yes.” The State then asked, “Do you have any reason to believe that 

[the informant] was in any way untruthful about his observations that day?” Ranallo 

responded, “No.” 

¶27 McReynolds argues that “[t]he first of the four instances of vouching 

was the most problematic,” and he admits that “Ranallo’s other statements were 

arguably focused on external indicators of untruthfulness.” He claims, however,

that “those [other] statements served to bolster [Ranallo’s] first statement, which 

was clearly vouching.” He argues that his trial counsel performed deficiently as he 

should have objected to all four vouching statements and moved to strike them.

¶28 According to McReynolds, these facts are “akin to” the facts 

considered by this court in State v. Patterson, 2009 WI App 161, 321 Wis. 2d 752, 

776 N.W.2d 602. There, the State asked a police investigator, “Do you believe [a 
No. 2021AP943-CR

15

witness the investigator interviewed] was being truthful when she gave [certain] 

information to you ...?” Id., ¶36 (alterations in original). The investigator then 

answered, “I believe she was being truthful.” Id. We concluded that “[i]t does not 

appear that this exchange was offered for any purpose other than bolstering the 

credibility of the other witness.” Id. Nonetheless, while we “assume[d] that the 

exchange ran afoul of Haseltine,” we held that the single instance of vouching, in 

the context of a seven-day trial, did not infect the trial with unfairness resulting in a 

denial of due process. Patterson, 321 Wis. 2d 752, ¶37. McReynolds argues that 

the exchange here was offered only to bolster the credibility of the informant, and, 

unlike in Patterson, it was not an isolated incident.

¶29 The State counters that when considered within the context of the 

questions at trial, “[n]one of the four allegedly improper statements here 

impermissibly interfered with the province of the jury to determine the credibility 

of any witness at trial,” and the statements were not offered to bolster the 

informant’s credibility.11 The State relies upon State v. Smith, 170 Wis. 2d 701, 

490 N.W.2d 40 (Ct. App. 1992), and State v. Snider, 2003 WI App 172, 266 Wis. 2d

830, 668 N.W.2d 784. 

¶30 In Smith, a police detective testified at trial that the defendant’s 

accomplice initially denied involvement in the crime but that the accomplice later 

changed his story to what the detective perceived to be the truth. Smith, 170 Wis. 2d 

at 719. We concluded that neither the purpose nor the effect of the testimony was 

 

11

 The State argues that State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 

1984), specifically “prohibits a witness from testifying that another witness is telling the truth at 

trial.” State v. Snider, 2003 WI App 172, ¶27, 266 Wis. 2d 830, 668 N.W.2d 784 (emphasis 

added). McReynolds counters that pursuant to State v. Kleser, 2010 WI 88, ¶104, 328 Wis. 2d 42, 

786 N.W.2d 144, the Haseltine rule also applies “where an expert vouches for an out-of-court 

declarant.” As we conclude no Haseltine violation occurred here, we need not address this issue.
No. 2021AP943-CR

16

to attest to the accomplice’s truthfulness, as the testimony “was not an attempt to 

bolster [the accomplice’s] credibility, but was simply an explanation of the course 

of events during the interrogation.” Id. at 718-19. We further explained that we did 

not believe that there was a risk that the jury used the detective’s testimony to assess 

the accomplice’s truthfulness, as the jury was instructed “that it was the sole judge 

of the witnesses’ credibility at the trial” and we presume that the jury follows those 

instructions. Id. at 719 (citing State v. Truax, 151 Wis. 2d 354, 362, 444 N.W.2d 

432 (Ct. App. 1989)).

¶31 In Snider, a child sexual abuse case, defense counsel repeatedly 

elicited testimony that the detective believed the victim rather than Snider in order 

to show that the detective was biased. Snider, 266 Wis. 2d 830, ¶¶25-26. Citing 

the reasoning in Smith, we concluded that

the detective similarly testified to what he believed at the 

time he was conducting the investigation, not whether Snider 

or the victim was telling the truth at trial. The detective, in 

response to questions on cross-examination, recounted how 

he conducted the interrogation and his thought processes at 

that time. As in Smith, his testimony did not violate the 

Haseltine rule.

Snider, 266 Wis. 2d 830, ¶27. 

¶32 We conclude that, like in Snider and Smith, Ranallo’s statements 

were not offered to bolster the informant’s credibility; instead, they were offered to 

explain the course of events during the interrogation. As such, they did not 

constitute improper vouching testimony, and there was no Haseltine violation.

¶33 The first, second, and fourth instances of alleged vouching were 

elicited because law enforcement officers were unable to directly observe the 

controlled drug buys. The State offered Ranallo’s testimony to establish whether 
No. 2021AP943-CR

17

the informant’s oral statements given to law enforcement immediately after the drug 

buys were consistent with Ranallo’s observations, including those from the videos 

and audio recordings. Ranallo’s opinions about the truthfulness of the informant’s 

statements were relevant to explain both the reason law enforcement relied upon the 

informant’s information—given their inability to observe the exchanges—and why 

they chose not to pursue any further investigation. Ranallo did not testify that the 

informant told the truth at trial. Rather, similar to the testimony provided in Smith

and Snider, Ranallo testified he thought the information provided by the informant 

at the time of the controlled buys was truthful, as it was supported by what he 

observed and it helped explain why he conducted the investigation as he did.

¶34 The third statement referenced the altercation between McReynolds 

and the informant and whether Ranallo was concerned about the informant’s 

credibility “at that point.” Ranallo responded that he “was not given any 

information to lead [him] to believe that [the informant] was not being truthful.” He 

stated that the informant “showed me the injuries ..., so I was able to corroborate 

that portion of it.” The inquiry and response related to whether Ranallo could have 

further confidence in what the informant told him about the altercation between 

McReynolds and himself and whether the altercation would provide the informant 

with a motive to participate in or lie about the second controlled buy. Ranallo’s 

testimony regarding the informant’s truthfulness as to the altercation was offered to 

explain why Ranallo continued in his investigation of McReynolds with the 

assistance of the informant and why the second drug buy took place despite the 

altercation. 

¶35 In summary, the purpose and effect of Ranallo’s four statements at 

trial were to explain what he believed at the time he was conducting the investigation 

and why he proceeded with it. The statements were not offered to bolster the 
No. 2021AP943-CR

18

informant’s credibility at trial. Further, the statements did not interfere with the 

province of the jury to determine the credibility of the informant, who himself 

testified extensively at trial.

12

 Thus, there was no Haseltine violation, and 

McReynolds’ trial counsel was not deficient for failing to object to Ranallo’s 

admissible testimony. See State v. Maday, 2017 WI 28, ¶55, 374 Wis. 2d 164, 892 

N.W.2d 611 (“Counsel’s performance cannot be considered deficient for failing to 

object to admissible evidence.”). As we find no deficient performance, we need not 

reach the prejudice prong.

¶36 McReynolds next claims that his trial counsel performed deficiently 

by failing to object to improper, prejudicial character evidence that McReynolds 

was affiliated with the Vice Lord gang.13 Character evidence, meaning “[e]vidence 

of a person’s character or a trait of the person’s character,” is inadmissible “for the 

purpose of proving that the person acted in conformity therewith on a particular 

occasion,” WIS. STAT. § 904.04(1), subject to certain exceptions not relevant here, 

see § 904.04(1)(a)-(c), (2). 

¶37 Twice during the trial, the State elicited testimony from the informant 

regarding the individual identified as “KG.” The first time, the informant identified 

KG as “one of” McReynolds’ “Vice Lord friends.” The second time, the informant 

identified KG as McReynolds’ “Vice Lord brother.” McReynolds’ trial counsel did 

not object in either instance.

 

12

 We note also that, like in State v. Smith, 170 Wis. 2d 701, 719, 490 N.W.2d 40 (Ct. App. 

1992), the jury in this case was instructed that the jury is the sole judge of the witnesses’ credibility.

13

 We note that in State v. Burton, 2007 WI App 237, 306 Wis. 2d 403, 743 N.W.2d 152, 

we referred to the gang as the “Vice Lords gang” or the “Vice Lords.” However, in this opinion, 

we will refer to the gang as the Vice Lord gang because that is how it is referenced in the record 

before us.
No. 2021AP943-CR

19

¶38 McReynolds argues that the references to the Vice Lord gang 

constituted character evidence. Citing State v. Burton, 2007 WI App 237, 306 

Wis. 2d 403, 743 N.W.2d 152, McReynolds asserts that “[t]he Vice Lord gang is 

notorious for drugs and violence.” Thus, he argues, “[t]estimony linking Mr. 

McReynolds to a gang implied that Mr. McReynolds had a propensity for crime. 

Not only was this character evidence, there was no foundation for the accusation.”

¶39 At the hearing on the postconviction motion, the court agreed that the 

evidence was improper:

 I absolutely agree there should have been witness prep to 

indicate that sort of statement should not come in. I 

absolutely agree that once you get that answer, the Vice Lord 

friend, then you have to do what you can to stay away from 

a repeat of that answer.

 You know, I don’t know all the gang names. I seriously 

doubt that the average juror from Eau Claire County knows 

all the gang names. 

 But that being said, saying somebody’s a Vice Lord 

brother, I think most people if they’re thinking about it 

would have an idea as to what that’s referring to. So clearly 

those statements are problematic as defense stated. 

¶40 Nevertheless, despite noting that the references to the Vice Lord gang 

was “an absolutely not proper reference,” the postconviction court acknowledged 

that “it is a very minor reference.” The court stated that it could have defense 

counsel testify as to whether the failure to object was part of his trial strategy, 

suggesting that “object[ing] and bring[ing] great attention” to the reference is 

“probably best ... avoid[ed].” Ultimately, however, the court found that the Vice 

Lord references “in the general context of the trial” were not “sufficient to 

undermine the legitimacy of the conviction.”
No. 2021AP943-CR

20

¶41 For the purpose of this appeal, and given the postconviction court’s 

finding that the evidence was improper, we will assume without deciding that 

defense counsel’s failure to object to the Vice Lord references constituted deficient 

performance. We conclude, however, that McReynolds suffered no resulting 

prejudice.

¶42 As to the prejudicial effect of counsel’s failure to object to the Vice 

Lord references, McReynolds argues only that “[t]he State improperly bolstered its 

case by disparaging Mr. McReynolds’ character.” His arguments on this issue are 

undeveloped, spanning only one short paragraph. Further, as the postconviction 

court found, and we agree, the informant’s references to the Vice Lord gang during 

the trial were both “quick” and “minor reference[s],” and the topic was not 

highlighted during questioning. While we acknowledge, as McReynolds suggests, 

that this case was largely based on witness credibility, we disagree that the State’s 

case could be categorized as weak. The jury heard consistent testimony from the 

confidential informant, Ranallo, and other officers, and that testimony was also 

consistent with the video and audio evidence presented. 

¶43 Given all the evidence presented at trial, we cannot conclude, and 

McReynolds has failed to establish, that there is a reasonable probability that the

result of the trial would have been different absent the Vice Lord references. See 

Sholar, 381 Wis. 2d 560, ¶¶44, 46. Because McReynolds must satisfy both prongs 

to show ineffective assistance of counsel and he has failed to establish prejudice, 

the postconviction court did not err when it denied his postconviction motion 

without a Machner hearing.

III. WISCONSIN STAT. § 973.017(10m)(b)
No. 2021AP943-CR

21

¶44 McReynolds’ final arguments relate to the sentencing court’s 

invocation of WIS. STAT. § 973.017(10m)(b) to issue a written explanation of the 

rationale for the sentences it previously imposed at the sentencing hearing. 

McReynolds argues that this procedure is unconstitutional as applied to him because 

it violated his constitutional rights to a public trial and to be present at sentencing.

¶45 The State first counters that McReynolds forfeited these arguments. 

The State further argues that “McReynolds conflates two distinct events: actual 

imposition of the sentence and the explanation for the sentence.... [H]e has a right 

to be physically present for the former but not the latter.” For the reasons that 

follow, we conclude that the State correctly argues that McReynolds forfeited his 

public trial claim and that he fails to meet his burden to prove beyond a reasonable 

doubt that the sentencing court’s use of § 973.017(10m)(b) violated his 

constitutional right to be present at sentencing.

¶46 We first address the State’s forfeiture claims. McReynolds did not 

object at the sentencing hearing to the court’s use of WIS. STAT. § 973.017(10m)(b). 

Accordingly, the State argues that by failing to object, McReynolds has forfeited his 

constitutional claims. We review de novo whether a defendant adequately 

preserved his or her right to appellate review of a particular claim. State v. Coffee, 

2020 WI 1, ¶17, 389 Wis. 2d 627, 937 N.W.2d 579.

¶47 As to the right to a public trial,14 the State argues that McReynolds 

forfeited this argument under State v. Pinno, 2014 WI 74, 356 Wis. 2d 106, 850 

N.W.2d 207. In Pinno, our supreme court determined that the right to a public trial 

 

14

 The Sixth Amendment to the United States Constitution guarantees criminal defendants 

the right to a public trial. U.S. CONST. amend. VI; State v. Ndina, 2009 WI 21, ¶40, 315 Wis. 2d

653, 761 N.W.2d 612.
No. 2021AP943-CR

22

is subject to forfeiture; thus, “the Sixth Amendment right to a public trial may be 

forfeited when a defendant knows that the judge has ordered the public to leave the 

courtroom but does not object.” Id., ¶¶57, 63.

¶48 McReynolds attempts to sidestep Pinno by arguing that Coffee and 

State v. Grady, 2007 WI 81, 302 Wis. 2d 80, 734 N.W.2d 364, require a different 

result: namely, that McReynolds was not required to contemporaneously object at 

sentencing. Instead, McReynolds contends that his postconviction motion was a 

timely means of raising the sentencing error.

¶49 In Coffee, the defendant argued that the circuit court violated his due 

process rights by relying on inaccurate information at sentencing, but he failed to 

object to the inaccurate information. Coffee, 389 Wis. 2d 627, ¶1. Our supreme 

court concluded that “the forfeiture rule does not apply to previously unknown, 

inaccurate information first raised by the State at sentencing. Rather, a 

postconviction motion is also a timely manner in which to bring that claim.” Id., ¶3. 

In Grady, the defendant argued that the circuit court erroneously exercised its 

discretion by failing to consider the applicable sentencing guidelines for the crime 

considered at sentencing. Grady, 302 Wis. 2d 80, ¶¶10-11. In a footnote, our 

supreme court rejected the State’s argument that the defendant “waived the issue[],” 

explaining that “[f]iling a postconviction motion is a timely means of raising an 

alleged error by the circuit court during sentencing.” Id., ¶14 n.4.

¶50 We disagree that this case is controlled by Coffee and Grady. This is 

not a case where McReynolds sought to challenge the basis for the sentencing 

court’s exercise of discretion as to its decision. McReynolds takes no issue with the 

reasons the court relied upon to issue its written sentencing explanation, nor does 
No. 2021AP943-CR

23

he argue that the court erroneously exercised its discretion in imposing his sentences 

or explaining its rationale for them. 

¶51 Instead, McReynolds argues that the process the sentencing court used 

to explain its sentencing rationale violated his rights. McReynolds was made aware 

of the court’s intention to utilize WIS. STAT. § 973.017(10m)(b), and the court 

explained its reasons for doing so on the record and in McReynolds’ presence. 

McReynolds could and should have raised his objection to the court issuing a written 

explanation of its sentencing rationale at that time. Had he done so, the court could 

have timely considered the issue, addressed any legal concerns with following the 

statute, and properly preserved the issue for appeal. See Schonscheck v. Paccar, 

Inc., 2003 WI App 79, ¶11, 261 Wis. 2d 769, 661 N.W.2d 476 (“A fundamental 

appellate precept is that we ‘will not ... blindside [circuit] courts with reversals 

based on theories which did not originate in their forum.’” (citation omitted)). We 

agree with the State that, pursuant to Pinno, McReynolds has forfeited his argument 

that his right to a public trial was violated.15 

¶52 The State also argues that McReynolds forfeited his argument

regarding the violation of his constitutional right to be present at sentencing. 

McReynolds counters that, pursuant to State v. Soto, 2012 WI 93, 343 Wis. 2d 43, 

817 N.W.2d 848, “[t]he right to be present cannot be forfeited by inaction.” In Soto, 

the defendant and his attorney appeared for his scheduled plea hearing via 

videoconferencing. Id., ¶6. Although Soto “agreed to the use of videoconferencing 

 

15

 To the extent that review may be available under an ineffective assistance of counsel 

framework, see State v. Pinno, 2014 WI 74, ¶¶81-86, 356 Wis. 2d 106, 850 N.W.2d 207, we note 

that McReynolds does not advance that argument.
No. 2021AP943-CR

24

for the hearing,” he later sought postconviction relief, arguing that the 

videoconferencing violated due process and his statutory right to be present under 

WIS. STAT. § 971.04(1)(g).16 Soto, 343 Wis. 2d 43, ¶¶7, 11. Our supreme court 

concluded that

a defendant’s right to be present in the same courtroom as 

the presiding judge at the proceedings listed in 

[§] 971.04(1)(g) is particularly important to the actual or

perceived fairness of the criminal proceedings. Therefore, if 

this right is to be relinquished, it must be done by waiver, the 

“intentional relinquishment of a known right.”

Soto, 343 Wis. 2d 43, ¶40 (citation omitted).

¶53 The State agrees that under Soto, a defendant’s statutory right to be 

present at “the imposition of sentence,” pursuant to WIS. STAT. § 971.04(1)(g), 

cannot be forfeited; it must be waived. The State argues, however, that “assuming 

Soto applies equally to the constitutional right to presence at sentencing, Soto’s 

waiver rule extends only as far as the imposition of a sentence.” It is the State’s 

position that a circuit court’s sentencing decision and its explanation of its reasons 

for the sentence imposed are “plainly distinct events.” According to the State, 

McReynolds was present for “the imposition of sentence”; therefore, “Soto’s waiver 

 

16

 WISCONSIN STAT. § 971.04(1) provides:

(1) Except as provided in subs. (2) and (3), the defendant shall be 

present:

 (a) At the arraignment;

 (b) At trial;

 (c) During voir dire of the trial jury;

 (d) At any evidentiary hearing;

 (e) At any view by the jury;

 (f) When the jury returns its verdict;

 (g) At the pronouncement of judgment and the imposition of 

sentence;

 (h) At any other proceeding when ordered by the court.
No. 2021AP943-CR

25

rule is inapposite” and McReynolds “forfeited any argument that WIS. STAT.

§ 973.017(10m)(b) was applied in violation of his constitutional right.”

¶54 Given the importance of the right at issue, we decline to apply the 

forfeiture rule to McReynolds’ argument that his right to be present at sentencing 

was violated through the sentencing court’s application of WIS. STAT.

§ 973.017(10m)(b), and we will address the claim on its merits. See State v. 

Erickson, 227 Wis. 2d 758, 766, 596 N.W.2d 749 (1999) (“[T]he [forfeiture] rule 

is one of judicial administration and ... appellate courts have authority to ignore the 

[forfeiture].”).

¶55 As noted above, this case requires us to interpret WIS. STAT.

§ 973.017(10m). The statute provides:

(a) The court shall state the reasons for its sentencing 

decision and, except as provided in par. (b), shall do so in 

open court and on the record.

(b) If the court determines that it is not in the interest of the 

defendant for it to state the reasons for its sentencing 

decision in the defendant’s presence, the court shall state the 

reasons for its sentencing decision in writing and include the 

written statement in the record.

Sec. 973.017(10m). Under the statute, “sentencing decision” is defined as

a decision as to whether to impose a bifurcated sentence 

under [WIS. STAT. §] 973.01 or place a person on probation 

and a decision as to the length of a bifurcated sentence, 

including the length of each component of the bifurcated 

sentence, the amount of a fine, and the length of a term of 

probation.

Sec. 973.017(1).

¶56 The issue of whether a circuit court’s use of WIS. STAT.

§ 973.017(10m) to state the reasons for its sentencing decision in writing, rather 
No. 2021AP943-CR

26

than orally in court at the time of the sentencing hearing, violates a defendant’s 

constitutional right to be present at sentencing is one of first impression in this state. 

“Statutory interpretation begins with the language of the statute.” State v. Mercado, 

2021 WI 2, ¶43, 395 Wis. 2d 296, 953 N.W.2d 337 (citing State ex rel. Kalal v. 

Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110). 

“If the meaning of the statute is plain, we ordinarily stop the inquiry.” Kalal, 271 

Wis. 2d 633, ¶45 (citation omitted). “Statutory language is given its common, 

ordinary, and accepted meaning,” but “[c]ontext is important to meaning. So, too, 

is the structure of the statute in which the operative language appears.” Id., ¶¶45-

46. Thus, “statutory language is interpreted in the context in which it is used; not 

in isolation but as part of a whole; in relation to the language of surrounding or 

closely-related statutes; and reasonably, to avoid absurd or unreasonable results.” 

Id., ¶46. Statutory interpretation presents a question of law we review de novo. 

Grady, 302 Wis. 2d 80, ¶14.

¶57 This appeal also requires us to consider whether WIS. STAT.

§ 973.017(10m)(b) is constitutional as applied to McReynolds. “The 

constitutionality of a statute is a question of law that we review de novo.” State v. 

Wood, 2010 WI 17, ¶15, 323 Wis. 2d 321, 780 N.W.2d 63. Our review begins with 

the presumption that a statute is constitutional; the party making the as-applied 

challenge carries the burden of proving that the statute “is unconstitutional beyond 

a reasonable doubt.” Id. “Under [an as-applied] challenge, the challenger must 

show that his or her constitutional rights were actually violated.” Id., ¶13. We 

evaluate as-applied challenges “considering the facts of the particular case in front 

of us, ‘not hypothetical facts in other situations.’” Id. (citation omitted).

¶58 Here, McReynolds argues that WIS. STAT. § 973.017(10m)(b) is 

unconstitutional as applied to him. He asserts that a defendant has a constitutional 
No. 2021AP943-CR

27

due process right to be present at sentencing, as it is a critical proceeding. See

Kentucky v. Stincer, 482 U.S. 730, 745 (1987) (“[A] defendant is guaranteed the 

right to be present at any stage of the criminal proceeding that is critical to its 

outcome if his [or her] presence would contribute to the fairness of the procedure.”). 

“Wisconsin recognizes and protects three due process rights of a defendant at 

sentencing.” State v. Perez, 170 Wis. 2d 130, 138, 487 N.W.2d 630 (Ct. App. 

1992). “First, the defendant has a right to be present at the sentencing and to be 

afforded the right of allocution.[17] Second, the defendant has the right to be 

represented by counsel. Finally, the defendant has the right to be sentenced on the 

basis of true and correct information.” Id.

¶59 McReynolds claims that the sentencing rationale is “intrinsic to the 

pronouncement of the sentence,” and, thus, he was denied his right to be present at 

sentencing when the sentencing court filed its “Written Reasons for Sentencing 

Decision.” Given that a defendant has a right to be present at sentencing, 

McReynolds argues, WIS. STAT. § 973.017(10m)(b) may be used only where the 

defendant waives his or her right to be present.18 We disagree and conclude that 

although a defendant has a statutory and constitutional right to be present when a 

sentence is imposed, McReynolds has failed to prove beyond a reasonable doubt 

that the court’s use of § 973.017(10m)(b), without his waiver, violated his right to 

be present at sentencing. 

 

17

 But see State v. Greve, 2004 WI 69, ¶31, 272 Wis. 2d 444, 681 N.W.2d 479 (clarifying 

prior decisions relying on a federal constitutional right of allocution and “withdrawing the language 

that implies there is a due process right of allocution under the federal constitution, in all 

circumstances”). 

18

 We note that McReynolds does not allege a facial constitutional challenge to WIS. STAT.

§ 973.017(10m)(b), as he concedes there would be no constitutional or statutory violation if a 

defendant waived his or her right to be present when the circuit court stated the rationale for the 

sentence imposed.
No. 2021AP943-CR

28

¶60 It is clear from the plain language of WIS. STAT. § 973.017(10m) that 

a circuit court’s “sentencing decision” and the pronouncement of “the reasons for 

its sentencing decision” are distinct events. As the State notes, “sentencing” is not 

defined under § 973.017. Rather, WIS. STAT. RULE 809.30(1)(f) defines 

“sentencing” as “the imposition of a sentence, a fine, or probation in a criminal 

case.” See also Sentencing, BLACK’S LAW DICTIONARY (11th ed. 2019) (“The 

judicial determination of the penalty for a crime.”). In accordance with those 

definitions, a “sentencing decision” under § 973.017(10m) is properly defined as “a 

decision as to whether to impose a bifurcated sentence ... or place a person on 

probation and a decision as to the length of a bifurcated sentence,” which includes 

the length of the initial incarceration and extended supervision, the amount of a fine, 

and the length of probation. Sec. 973.017(1) (emphasis added). Neither definition 

of sentencing includes a court’s statement of the reasons for the imposition of a 

sentence. Instead, the language of § 973.017(10m) clearly articulates the 

legislature’s intent to separate the “sentencing decision” from the “reasons for [the 

court’s] sentencing decision.” Under the statute, the reasons for the sentencing 

decision must (“shall”) be stated “in open court and on the record,” except “[i]f the 

court determines that it is not in the interest of the defendant for it to state the reasons 

for its sentencing decision in the defendant’s presence.” Sec. 973.017(10m)(a)-(b). 

Accordingly, we agree with the State that the sentencing decision, which includes 

the imposition of sentence, and the pronouncement of the reasons for the sentencing 

decision are distinct events under the statute.

¶61 McReynolds urges us to reject this distinction. He argues that “[t]he 

sentencing rationale is intrinsic to the pronouncement of sentence. If a court were 

to simply announce numerical figures, the sentence would be summarily vacated on 
No. 2021AP943-CR

29

appeal.” Although we agree with McReynolds’ basic premise, as far as it goes, it 

does not follow that the statute violates his constitutional rights.

¶62 McReynolds correctly argues that the sentencing court must detail its 

reasons for selecting the particular sentence imposed. See State v. Gallion, 2004 

WI 42, ¶¶39, 41-42, 45, 270 Wis. 2d 535, 678 N.W.2d 197.

 In all Anglo-American jurisprudence a principal 

obligation of the judge is to explain the reasons for his 

actions. His decisions will not be understood by the people 

and cannot be reviewed by the appellate courts unless the 

reasons for decisions can be examined. It is thus apparent 

that requisite to a prima facie valid sentence is a statement 

by the trial judge detailing his reasons for selecting the 

particular sentence imposed.

McCleary v. State, 49 Wis. 2d 263, 280-81, 182 N.W.2d 512 (1971). In Gallion, 

our supreme court explained that “[t]he legislature well recognized that explaining 

the reasons for the particular sentence should not be optional for the circuit court 

under truth-in-sentencing. It codified the requirement adopted in McCleary by 

enacting [WIS. STAT. §] 973.017(10m) (2001-02).”

¶63 WISCONSIN STAT. § 973.017(10m), however, in no way dispenses 

with the requirement that the circuit court explain its reasons for its sentencing 

decision on the record. It merely provides an alternative method where, in its 

discretion, “the court determines that it is not in the interest of the defendant for it 

to state the reasons” in the defendant’s presence. Sec. 973.017(10m)(b). The 

sentencing rationale must still be provided under the statute, but the court may do 

so in writing and include the written statement in the record. This procedure allows 

for public and appellate review at least equivalent to that available through an oral 

pronouncement.
No. 2021AP943-CR

30

¶64 To the extent McReynolds argues that the dichotomy between the 

sentencing decision and the reasons for the sentence identified by WIS. STAT.

§ 973.017(1) and (10m) violates his constitutional right to be present at sentencing, 

he has presented no legal authority for such a claim. In other words, he has provided 

no legal support for his argument that his constitutional due process right to be 

present at sentencing extends to the court’s explanation of its sentencing rationale. 

In reply, McReynolds advances a conclusory argument, citing Soto, 343 Wis. 2d 43, 

¶40, that “[a] defendant’s right to be present during sentencing is ‘particularly 

important to the actual or perceived fairness of the criminal proceedings’”; thus, he 

contends, “[t]o ensure that sentencing is fair and receives the solemnity it deserves, 

the defendant has a right to be in the presence of the judge when the basis for the 

sentence is given.”19 We are unconvinced.

¶65 McReynolds has not argued how or why his presence during the 

explanation of the sentencing decision “would contribute to the fairness of the 

procedure.” See Stincer, 482 U.S. at 745. While a defendant has a due process right 

to be “present at the sentencing,” see Perez, 170 Wis. 2d at 138, McReynolds was 

provided with the three due process rights identified in Perez during the sentencing 

hearing. It does not necessarily follow that due process required that McReynolds 

be present when the sentencing court provided its reasons for its sentencing 

 

19

 McReynolds also notes that our supreme court explained in Soto that “[r]equiring that 

the defendant be present in the courtroom is guided also by the belief that a courtroom is a setting

epitomizing and guaranteeing ‘calmness and solemnity,’ so that a defendant may recognize that he 

[or she] has had access to the judicial process in a criminal proceeding.” See Soto, 343 Wis. 2d 43, 

¶23 (citation omitted). We disagree that the WIS. STAT. § 973.017(10m)(b) procedure as utilized 

in this case undermined this purpose. The sentencing court explained its reasons for invoking the 

statute on the record, noting that the court was providing a written explanation of its sentencing 

decision “as a courtesy” to McReynolds because it did not think that McReynolds would listen well 

to its rationale and would “consider it demeaning and insulting.” Given McReynolds past behavior 

in court, this approach was a reasonable way to guarantee “calmness and solemnity” while still 

allowing McReynolds the opportunity for access to the judicial process. See Soto, 343 Wis. 2d 43, 

¶23.
No. 2021AP943-CR

31

decision, particularly where the court was required to make the written statement of 

its sentencing rationale a part of the record and thus available to McReynolds. At 

the point where the court provides the rationale for the sentence imposed, the 

defendant has no further opportunity to contribute to the court’s decision. 

McReynolds does not explain how his presence during the court’s statement of its 

sentencing rationale would have affected the fairness of the procedure or the court’s 

sentencing explanation in any way. Given our presumption that WIS. STAT.

§ 973.017(10m) is constitutional, McReynolds has failed to meet his burden to 

overcome that presumption beyond a reasonable doubt. See Wood, 323 Wis. 2d 

321, ¶15.

¶66 McReynolds also relies upon Soto to argue that given a defendant’s

right to be present at sentencing, WIS. STAT. § 973.017(10m)(b) may only be 

utilized where the defendant affirmatively waives this right. See Soto, 343 Wis. 2d 

43, ¶40. He faults the sentencing court for failing to enter into a colloquy with him 

to determine whether he was “agreeable” to the procedure. Again, the holding in 

Soto was based on the statutory right of a defendant to be present at “the 

pronouncement of judgment and the imposition of sentence” under WIS. STAT.

§ 971.04(1)(g). As the State argues, “assuming Soto applies equally to the 

constitutional right to presence at sentencing, Soto’s waiver rule extends only as far 

as the imposition of a sentence,” not the “court’s announcement of the ‘reasons for 

its sentencing decision.’” We agree.

¶67 The plain language of WIS. STAT. § 973.017(10m)(b) permits the 

circuit court to make the discretionary determination “that it is not in the interest of 

the defendant for it to state the reasons for its sentencing decision in the defendant’s 

presence.” There is nothing in the language of the statute requiring the defendant 

to assent to that determination. Further, Soto was based on the statutory right of a 
No. 2021AP943-CR

32

defendant to be present at “the pronouncement of judgment and the imposition of 

sentence” under WIS. STAT. § 971.04(1)(g). As we determined above, the 

sentencing decision—defined as “a decision as to whether to impose a bifurcated 

sentence ... or place a person on probation and a decision as to the length of a 

bifurcated sentence”—is distinct under our statutes from the reason for the

sentencing decision. See § 973.017(1) (emphasis added); see also § 971.04(1)(g) 

(“the defendant shall be present ... [at] the imposition of sentence” (emphasis 

added)). Soto is therefore distinguishable.

¶68 McReynolds was present when his sentences were imposed, and he 

has not established that his due process right to be present at sentencing was 

violated. At the sentencing hearing, the court stated on the record all the documents 

it reviewed in anticipation of sentencing, including the presentence investigation 

report (PSI) prepared for this case, the PSI in McReynolds’ previous case, and the 

sentencing transcript in the previous case. The sentencing court then asked 

McReynolds if there was anything in the PSI to which he objected, and he indicated 

that there were “a couple of errors that I see in there, but it’s—it’s pointless, you 

know.”20 The court reviewed McReynolds’ criminal history with the parties on the 

record, noting that it would not consider his juvenile record, and addressed each 

 

20

 McReynolds refused to identify the errors. At sentencing, he attempted to have his 

attorney removed and represent himself. When the sentencing court refused his request, 

McReynolds stated:

I just want to proceed and get the time that you’re gonna give me 

and just go for my appeals because, like I said, sir, this—this 

gentleman, he’s a good lawyer, but he’s not representing my 

interest, and that’s all I’d just like to state for the record, that, you 

know, with all due respect to this Court, I’m not gonna be a jerk 

like I usually be and loud and crazy. I’m just gonna state that, for 

the record, from here on out I just choose not to say anything else 

for the record because I’m not in agreement with this attorney 

representing me at today’s proceedings, with all due respect.
No. 2021AP943-CR

33

charge from his adult record, asking whether McReynolds disputed those charges. 

The court also inquired about the sentencing credit to which McReynolds was 

entitled. Both the State and McReynolds offered lengthy sentencing arguments, and 

McReynolds was afforded the right of allocution.

¶69 In all, McReynolds was provided the right to be present and to 

allocution, the right to counsel, and an adequate opportunity to review or rebut the 

information the sentencing court relied on to impose its sentences. See Perez, 170 

Wis. 2d at 138; State v. Loomis, 2016 WI 68, ¶53, 371 Wis. 2d 235, 881 N.W.2d 

749 (recognizing that defendants must have an “opportunity to refute, supplement 

or explain” information at sentencing). The court then reviewed the sentencing 

factors it was required to consider as well as the factors it may consider, and, after 

explaining its reasons for invoking WIS. STAT. § 973.017(10m)(b) on the record,21

it imposed McReynolds’ bifurcated sentences.

¶70 We are satisfied that McReynolds has failed to overcome the 

presumption that WIS. STAT. § 973.017(10m)(b) is constitutional, and he has failed 

to prove beyond a reasonable doubt that the court’s use of that sentencing procedure 

violated his constitutional right to be present at sentencing.22 

By the Court.—Judgment and order affirmed.

 

21

 McReynolds does not challenge the sentencing court’s reasons for invoking WIS. STAT.

§ 973.017(10m)(b) on appeal. Thus, we will address those reasons no further.

22

 We note that a sentencing court’s decision to utilize WIS. STAT. § 973.017(10m)(b) is 

not a common practice, and our decision should not be read as endorsing the use of this procedure, 

especially if a defendant affirmatively balks at the use of the procedure. We conclude, however, 

that use of the statutory procedure did not violate McReynolds’ constitutional right to be present at 

sentencing.