COURT OF APPEALS

DECISION

DATED AND FILED

November 26, 2019

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. 2017AP2273-CR Cir. Ct. No. 2013CF1967

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KENDRICK DEAVANE ALEXANDER,

DEFENDANT-APPELLANT.

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

Milwaukee County: JONATHAN D. WATTS and FREDERICK C. ROSA, 

Judges. Order affirmed in part, reversed in part, and cause remanded with 

directions.

Before Brash, P.J., Dugan and Fitzpatrick, JJ.

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 
No. 2017AP2273-CR

2

¶1 PER CURIAM. Kendrick Deavane Alexander appeals from a 

judgment of conviction for two counts of first-degree recklessly endangering 

safety by use of a dangerous weapon and one count of being a felon in possession 

of a firearm. See WIS. STAT. §§ 941.30(1), 939.63(1)(b), and 941.29(2)(a) (2013-

14).1 Alexander also appeals from an order denying his postconviction motion 

that sought a new trial or, in the alternative, resentencing.

2

¶2 We conclude that Alexander is entitled to a Machner hearing with 

respect to his claim that trial counsel provided ineffective assistance.

3

 Therefore, 

we reverse that part of the postconviction order and remand for a Machner 

hearing. In light of the remand, it would be premature to consider Alexander’s 

request that this court exercise its discretion and order a new trial in the interest of 

justice, so we will not address that request. However, in the interest of judicial 

economy, this court has considered Alexander’s argument that the trial court 

erroneously exercised its sentencing discretion when it stated, “I represent the 

community.” We conclude that the trial court’s statement, viewed in context, did 

not constitute an erroneous exercise of discretion. Therefore, we affirm that part 

of the postconviction order denying Alexander’s request for resentencing.

 

1

 All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise 

noted.

2

 While Alexander appeals from both a judgment and an order, we address only the order 

for the reasons set forth in the opinion.

The Honorable Jonathan D. Watts presided over Alexander’s jury trial and sentenced 

him. The Honorable Frederick C. Rosa denied Alexander’s postconviction motion. 

3

 See State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979).
No. 2017AP2273-CR

3

BACKGROUND

¶3 The background facts are undisputed. On the night of April 6, 2013, 

two women fought in the street while others watched.

4

 At one point, a man exited 

a burgundy-colored vehicle, raised a gun, and fired shots that struck and injured 

two individuals, E.W. and C.J. The alleged shooter, Alexander, was charged with 

two counts of first-degree recklessly endangering safety and one count of being a

felon in possession of a firearm. 

¶4 At trial, the issue was the identity of the shooter. Both E.W. and C.J. 

testified that they did not previously know Alexander, but they were able to 

identify him in a photo array and in court as the man who shot them. One of the 

two women who fought in the street, S.J., testified that she had seen Alexander

before and recognized him from his Facebook page, which she viewed before the 

police showed her a photo array. She said the photo of Alexander she saw on 

Facebook showed him holding two guns. S.J. also testified that she believed that 

E.W. and C.J. had “probably communicated” with each other about the fact that 

Alexander was on Facebook. 

¶5 K.F., who is a friend of S.J., testified that she saw the person fire a

gun. She identified Alexander as the shooter in a photo array that she was shown 

a few days after the shooting, and she identified him in court. K.F. also testified 

that she had seen a photo of Alexander on Facebook before identifying him in the 

photo array. 

 

4

 Police officers were dispatched to the scene shortly before one o’clock in the morning

on April 7, 2013. 
No. 2017AP2273-CR

4

¶6 Trial counsel questioned Detective Jeffrey Sullivan about the photo 

arrays he used with the witnesses. Trial counsel asked Sullivan about the effect of 

having a witness see an individual’s photo on Facebook prior to viewing a photo 

array, and Sullivan acknowledged that “it does lessen the anonymity of a photo 

array if people are shown” an individual’s photo ahead of time. However, when 

asked whether people sometimes “make false identification[s]” of a person in a 

photo array, Sullivan stated: “In my 22 years, I can’t recall of it happening. I 

don’t know throughout the country. I can’t speak specifically on the case. In my 

22 years, I have never known a person to identify [someone] that actually wasn’t 

the suspect in cases that I have been involved in.” 

¶7 Sullivan also disagreed with trial counsel’s suggestion that “at night 

it’s harder to identify somebody than during the day.” Sullivan said: “No, I 

wouldn’t agree with that blanket statement. Depends on the lighting; depends on 

the distance. During the day, if they’re a block away, it would be hard to identify 

someone. At night, with lights, it’s much easier.” 

¶8 The jury found Alexander guilty of all three charges. The trial court 

sentenced him to a total of ten years of initial confinement and six years of 

extended supervision.

¶9 Alexander filed a postconviction motion seeking a new trial on 

grounds that his trial counsel performed deficiently in two ways. The first alleged 

deficiency was failing to present expert testimony on eyewitness identification, 

which Alexander claimed was necessary to “explain[] to the jury the pitfalls of 

eyewitness identification and the concerns about the reliability of the 

identifications in this particular case.” Alexander argued that “an expert witness 

could have countered some of the questionable statements made by [Detective] 
No. 2017AP2273-CR

5

Sullivan regarding identification, or eliminated the need to ask [Detective] 

Sullivan identification questions.” Alexander attached to his postconviction 

motion an analysis by Dr. Lawrence T. White, Professor and Chair of Psychology 

at Beloit College, concerning the identifications in this case and the opinions 

offered by Sullivan.

5

 

¶10 The second deficiency alleged in the postconviction motion was that 

trial counsel did not interview and present alibi testimony from Alexander’s 

girlfriend, Tamara Hackett, who was living with Alexander at the time of the 

shooting. The motion indicated that Hackett would have testified that she was 

with Alexander both the night of and the night after the shooting, celebrating their 

two-year anniversary by watching movies at home. The motion further alleged 

that Hackett spoke to Alexander’s trial counsel before the trial, and trial counsel 

“simply told her that this information would not help [Alexander’s] trial.” 

Alexander also asserted that, if Hackett had testified at trial, Alexander “would 

have exercised his constitutional right to testify.” Alexander concluded: 

Given that Ms. Hackett’s testimony would have 

supported the defense’s theory of misidentification—that 

Mr. Alexander was not at the scene of the shooting—and 

also impacted Mr. Alexander’s decision to exercise his 

constitutional right to testify, trial counsel’s failure to call 

Ms. Hackett as a witness constituted deficient performance. 

¶11 In addition to arguing that Alexander is entitled to a new trial based 

on ineffective assistance of trial counsel, Alexander sought a new trial in the 

interest of justice. Finally, Alexander asserted that if he was not granted a new 

 

5

 For instance, Dr. White questioned Sullivan’s testimony that in his experience, no 

witness had ever falsely identified someone. The expert wrote: “This seems highly unlikely 

given that, in 10 studies of actual police lineups, 33% of witnesses who made an identification 

chose a known-innocent filler.” 
No. 2017AP2273-CR

6

trial, he should at least be resentenced because at one point during the sentencing 

hearing, the trial court stated, “I represent the community.” 

¶12 The State opposed the postconviction motion. The trial court denied 

the motion without an evidentiary hearing, except it vacated two of the three DNA

surcharges that it had imposed.6 The trial court rejected Alexander’s ineffective 

assistance claim on the grounds that, even if trial counsel performed deficiently, 

Alexander had not been prejudiced. With respect to Alexander’s sentencing 

request, the trial court found that the trial court’s comment at sentencing did not 

constitute an erroneous exercise of discretion. This appeal follows.

DISCUSSION

¶13 There are two primary issues on appeal. The first is whether 

Alexander is entitled to an evidentiary hearing on his ineffective assistance claim. 

The second is whether the trial court erroneously exercised its sentencing 

discretion. We consider each issue in turn.

I. Request for an evidentiary hearing on ineffective assistance claim.

¶14 We begin with the applicable legal standards. To prevail on an 

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

performance was deficient and that the deficient performance prejudiced the 

 

6

 Alexander had asked the trial court to vacate the three DNA surcharges on grounds that 

they were improperly imposed in violation of ex post facto principles. After the trial court 

vacated only two of the surcharges, Alexander filed a motion for reconsideration seeking removal 

of the final surcharge. The resolution of that motion is not part of this appeal. We also note that, 

in its appellate brief, the State points out that “in light of recent precedent, the [trial] court should 

have left all $750 of the DNA surcharges intact,” but the State also acknowledges that this court 

“has no jurisdiction to review this issue because the State did not file a cross-appeal.” We agree 

that the DNA surcharge issue is not before us on appeal, and we will not further discuss the issue.
No. 2017AP2273-CR

7

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The 

postconviction court must hold a Machner hearing if the defendant’s motion “on 

its face alleges sufficient material facts that, if true, would entitle the defendant to 

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

Allen instructs us to consider whether the motion adequately alleges “who, what, 

where, when, why, and how” trial counsel acted deficiently. See id., ¶23. 

Whether the defendant’s motion meets this standard is a question of law that we 

review independently. See id., ¶9. “[I]f the 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 

postconviction court has the discretion to deny the defendant’s motion without a 

hearing. Id.

¶15 The question before us is whether Alexander has alleged sufficient 

material facts that, if true, entitle him to an evidentiary hearing on whether trial 

counsel provided constitutionally deficient representation. See id. We conclude 

that Alexander is entitled to a Machner hearing on both of the issues that he raises 

in his ineffective claim. 

¶16 With respect to Alexander’s assertion that trial counsel should have 

presented the testimony of an expert on eyewitness identification, we have 

examined both the analytical report Alexander submitted with his postconviction 

motion and the testimony of Detective Sullivan. Dr. White’s opinion, taken as 

true for purposes of evaluating whether Alexander has presented sufficient 

material facts to require a Machner hearing, supports Alexander’s assertion that 

trial counsel could have used an expert to raise doubts about the eyewitness 

identifications of Alexander by numerous witnesses, especially in light of 

allegations that those witnesses may have seen pictures of Alexander on Facebook
No. 2017AP2273-CR

8

before viewing the photo array. The report also supports Alexander’s argument 

that trial counsel could have avoided asking Sullivan questions that led, according 

to Dr. White, to the presentation of inaccurate information about eyewitness 

testimony. While the State urges us to conclude that “a reasonably competent 

attorney could have decided not to ... [present] expert testimony on eyewitness 

identification,” we conclude that it would be premature to analyze trial counsel’s 

actions in this case until the facts concerning his decisions about seeking out an 

expert and questioning Sullivan are developed at a Machner hearing.

¶17 With respect to Alexander’s assertion that trial counsel should have 

presented the alibi testimony of Hackett, we conclude that Alexander’s allegations 

are sufficient to warrant a hearing. In his postconviction motion, Alexander 

alleged that Hackett was with Alexander when the crimes were committed and that 

she shared that information with trial counsel prior to the trial. The trial court 

concluded that there is not “a reasonable probability the jury would have believed 

her testimony.” But, until Hackett’s testimony is presented at a Machner 

hearing—where the trial court can evaluate her credibility—it would be premature 

to evaluate the potential impact of Hackett’s testimony on a jury. Further, we are 

not persuaded by the State’s assertions on appeal that “the record sufficiently 

refutes Alexander’s allegation” that trial counsel “knew about an alibi defense 

before trial” and that “even if an alibi defense was available, a reasonably 

competent attorney could have decided not to present one.” Rather than 

speculating about what trial counsel may have known or may have decided to do, 

we conclude that here, where Alexander has sufficiently pled his ineffective 

assistance claim, those facts should be developed at a Machner hearing.

¶18 In summary, we are persuaded that Alexander’s postconviction 

motion adequately alleged the “who, what, where, when, why, and how” trial 
No. 2017AP2273-CR

9

counsel performed deficiently. See Allen, 274 Wis. 2d 568, ¶23. Therefore, we 

reverse that portion of the postconviction order and remand this matter for a 

Machner hearing on Alexander’s ineffective assistance claim. To be clear, this 

court is not concluding either that trial counsel was deficient or that Alexander

suffered any prejudice. We are merely concluding that Alexander has alleged 

sufficient facts to entitle him to a Machner hearing. See State v. Sholar, 2018 WI 

53, ¶54, 381 Wis. 2d 560, 912 N.W.2d 89 (“[W]hen an appellate court remands for 

a Machner hearing, it must leave both the deficient performance and the prejudice 

prongs to be addressed, because whether a defendant was prejudiced depends upon 

the existence of deficient performance.”). 

II. Sentencing challenge.

¶19 In the interest of judicial economy, we will consider the fully briefed 

issue of whether Alexander is entitled to resentencing based on a single statement

by the trial court at the sentencing hearing. Specifically, the trial court began its 

sentencing remarks by addressing the gravity of the offense, the need to protect the 

public, and Alexander’s character. See State v. Odom, 2006 WI App 145, ¶7, 294 

Wis. 2d 844, 720 N.W.2d 695 (“The primary factors for the sentencing court to 

consider are the gravity of the offense, the character of the offender, and the 

public’s need for protection.”). Then, before stating the amount of time Alexander

would serve in prison on each count, the trial court stated:

I want the defendant to understand that this is not an 

easy job and that I’m not here simply to talk about 

punishment but not have it done on my behalf. I represent 

the community. I’m looking out for the safety of the 

community and it’s your community. Part of the 

community is here today. Part of that community is your 

family, I well know that, but the other part of the 

community is the family of all the victims and all the 

people that were shot at by you and I have to look out for 
No. 2017AP2273-CR

10

everyone, so this sentence is balancing, as I said, and it 

considers a lot of different factors that I’ve touched upon. 

(Emphasis added.) 

¶20 Alexander argues that the trial court erred by stating, “I represent the 

community.” Alexander contends:

[I]t is not the function of a judge to “represent” the 

community. That is the job of the prosecutor. It is the 

prosecutor, not the judge, who identifies violations against 

the people and speaks “on behalf of” the community....

....

Mr. Alexander agrees that a circuit court can, and 

should, “consider” the interests of the community when 

imposing sentence. However, considering the interests of 

the community is different than stating that “I represent the 

community.”

....

... [T]he court erroneously exercised its discretion 

when it stated that “I represent the community” and 

Mr. Alexander is entitled to a new sentencing hearing. See 

generally, In re John Doe Proceeding, 2004 WI 65, ¶10, 

272 Wis. 2d 208, 680 N.W.2d 792 (stating that when a 

judge exceeds his or her powers, it is an erroneous exercise 

of discretion).

(Emphasis omitted; bolding added.)

¶21 On appeal, our review is limited to determining whether the trial 

court erroneously exercised its sentencing discretion. See State v. Gallion, 2004 

WI 42, ¶17, 270 Wis. 2d 535, 678 N.W.2d 197. “When discretion is exercised on 

the basis of clearly irrelevant or improper factors, there is an erroneous exercise of 

discretion.” Id. 

¶22 Here, we are not persuaded that the trial court erroneously exercised 

its sentencing discretion. The trial court considered proper sentencing factors, 
No. 2017AP2273-CR

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including the need to protect the public. See Odom, 294 Wis. 2d 844, ¶7. When 

we view the trial court’s challenged statement in context, including the trial 

court’s statements that immediately followed, it is clear that the trial court’s 

statement that it “represent[s] the community” was part of its analysis of the need 

to protect the public. We are unconvinced that the particular words used in this 

case constituted an erroneous exercise of discretion. Therefore, we affirm that part 

of the trial court’s order denying Alexander’s request for resentencing.

CONCLUSION

¶23 For the foregoing reasons, we conclude that Alexander is entitled to 

a Machner hearing with respect to his claim that trial counsel provided ineffective 

assistance. Therefore, we reverse the part of the postconviction order and remand 

for a Machner hearing. In light of the remand, we decline to consider Alexander’s 

request that this court exercise its discretion and order a new trial in the interest of 

justice at this time. Finally, with respect to the sentencing, we conclude that the 

trial court’s statement, viewed in context, did not constitute an erroneous exercise 

of discretion. Accordingly, we affirm that part of the postconviction order 

denying Alexander’s request for resentencing.

By the Court.—Order affirmed in part, reversed in part, and cause 

remanded with directions.

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

809.23(1)(b)5.