### COURT OF APPEALS DECISION DATED AND FILED September 19, 2023

Samuel A. Christensen 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 W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2022AP110 Cir. Ct. No. 2016CF142 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III

S TATE OF W ISCONSIN ,
P LAINTIFF - R ESPONDENT ,

V . C HRIS M ICHAEL S HAUGHNESSY ,
D EFENDANT - A PPELLANT .

APPEAL from an order of the circuit court for St. Croix County:
SCOTT J. NORDSTRAND , Judge. Affirmed

.

Before Stark, P.J., Hruz and Gill, 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 W IS . S TAT . R ULE 809.23(3).
¶ 1 PER CURIAM. Chris Shaughnessy appeals from an order denying his postc onviction motion for resentencing. Shaughnessy argues that the StateNo. 2022AP110

2 breached the plea agreement durin g its sentencing argument and that the circuit

court 1 relied on inaccurate information and improper factors when imposing his

sentence

. Shaughnessy furt her asserts that his trial attorney was constitutionally ineffective by failing to object to these alleged error s and by emphasizing negative information about Shaughnessy during his sentencing argument. In addition, Shaughnessy argues that the postconvic tion court erred by denying his postconviction motion without holding a Machner 2 hearing. We reject these arguments and affirm.

BACKGROUND

¶ 2 The State charged Shaughnessy with one count of second

- degree
sexual assault of a child and one count of sexual exploitation of a child. The charges were based on allegations that forty

- four

- year

- old Shaughnessy had sexually assaulted fifteen

- year

- old Carly. 3 Carly was a friend of Shaughn essy’s daughter, had previously dated Shaughnessy’s son, and had lived in Shaughnessy’s home for almost two years.
¶ 3 According to the amended complaint, in February 2016, a mandatory reporter contacted law enforcement regarding Carly, who was being treated in a Minnesota hospital for the use of controlled substances. T he reporter told law

1 The Honorable Eric J. Lundell sentenced Shaug h nessy. We refer to Judge Lundell as the circuit court. The Honorable Scott J. Nordstrand denied Shaughnessy’s moti on for postconviction relief. We refer to Judge Nordstrand as the postconviction court.

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

3 Pursuant to the policy underlying W IS

. S TAT

. R ULE 809.86 (2021

- 22), we use a pseudonym when referring to the victim in this case. All references to the Wisconsin Statutes are to the 2021

- 22 version unless otherwise noted.No. 2022AP110

3 enforcement that Carly “had been using methamphetamine and prescription medication, allegedly provided to her by [Shaughnessy].” The reporter also stat ed that Carly’s parents had accessed her Facebook Messenger log and had discovered sexually explicit messages between Carly and Shaughnessy.

¶ 4 Carly’s mother subsequently told law enforcement that she believed Shaughnessy had supplied Car ly with methamphetamine. Carly’s mother also provided copies of Facebook messages between Carly and Shaughnessy, in which Shaughnessy stated he was “thinking about coming over and tearing up that pussy.”

¶ 5 Investigators then executed a search warrant at Shaughnessy’s
residence and seized several items, including a cell phone and SD card . On the phone , investigator s found a video that showed Shaughnessy fondling Carly’s bare
breasts with one hand while his other hand was on h is bare, erec t penis.
I nvestigator s also located additional Facebook messages on the phone , in which
C arly and S haughnessy discussed Carly sneaking out of her mother’s home to

meet Shaughnessy

. In another conversation, Shaughnessy told Carly to “ tighten up your cock washer ” and then told her to “erase a ll of these messag es NOW.” Investigators also found a video that showed Carly and Shaughnessy embracing and kissing on the lips. In addition, investigators recovered a pair of women’s underwear, and DNA t esting indicated that Shaughnessy “was the source of the sperm fragments on the underwear and [Carly] was included as a possible
contributor to the non

- sperm fragments .”

¶ 6 Shaughnessy’s trial attorney filed a motion to suppress evidence

. The motion alleged that law enforcement had searched the entirety of Shaughnessy’s phone and SD card, including photo and video files, and that theNo. 2022AP110

4 general search exceeded the scope of the warrant

. Shaughnessy therefore sought suppression of all audio or visual media found on the phone and SD card.

¶ 7 After Shaughnessy filed his suppression motion, the parties reached a plea agreement. Under the agreement, Shaughnessy agreed to withdraw his suppression motion and plead guilty to second

- d egree sexual assault of a child . In exchange, the sexual exploitation of a child charge would be dismissed and read in, along with additiona l charges in two other cases. The plea agreement further provided that the parties would jointly recommend a ten

- y ear sentence, c omprised
of five years’ initial confinement followed by fiv e years’ extended supervision.

¶ 8 The circuit court accepted Shaughnessy’ s guilty plea to
second

- degree sexual assault of a child and found him guilty of that offens e. The

court then ordered a presentence investigation report (PSI)

. The PSI author
recommended a thirteen

- year sentence, comprised of nine years’ initial confinement followed by four years’ extended supervision. At sentencing, both
the State and Shaughnessy asked the court to impose five years’ initial confinement and five years’ extended supervision, consistent with the plea agreement. The court exceeded the joint recommendation, however, and imposed a twenty

- five

- year sentence, comprised of fifteen years’ initial confinement followed by ten years’ extended supervision.

¶ 9 Shaughnessy filed a notice of intent to pursue postconviction relief. Shaughnessy’s appointed postconviction attorney subsequently determined, however, th at there were no arguably meritorious appellate issues, and Shaughnessy consented to counsel closing the file without filing a postconviction
motion or appeal

.No. 2022AP110

5 ¶ 10 Shaughnessy later retained new counsel and filed a motion for postconviction relief under W IS

. S TAT

. § 974.06 , seeking resentencing. Shaughnessy alleg ed that: (1) the State breached the plea agreement at sentencing by covertly arguing for a sentence that exceeded the parties’ joint
recommendation ; (2) the circuit court relied on inaccurate information and improper factors when imposing his sentence; (3) Shaughnessy’s trial attorney was constitutionally ineffective by failing to object to the State’ s breach of the plea agreement, by “joining in the State ’s arguments instead of defending against them,” and by failing to object to the court’s reliance on inaccurate in formation and improper factors ; and (4) Shaughnessy’s appointed postconviction attorney was ineffective by failing to file a postconviction mo tion raising these issues.

¶ 11 The postconviction court denied Shaughnessy’s motion for resentencing, following a nonevidentiary hearing. First, the court concluded that Shaughnessy had failed to show that the State breached the plea agree ment during
it s sentencing argument. Second, the court concluded that Shaughnessy had not shown that there was inaccurate information before the circuit court at sentencing or that the court actually relied on the allegedly inaccurate information. Third, the
court concluded that Shaughnessy had not met his burden to show that the circuit

court re lied on any improper factors. Given these conclusions, the postconviction court stated there was “no need to consider ineffective assistance of counsel .”

¶ 12 Shaughnessy now appeals from the order denying his postconviction motion. Additional facts are included below as relevant to the parties’ arguments.

DISCUSSION

¶ 13 The parties agree that because Shaughnessy did not object at sentencing to the State’s alleged breach of the plea agreement or to the circuitNo. 2022AP110

6 court’s alleged reliance on inaccurate information and improper factors, he cannot raise those claims directly on appeal

. I nstead , Shaughnessy must show that his
trial att orney was constitutionally in effective by failing to object to the alleged

errors

. See State v. Erickson , 227 Wis. 2d 758, 766, 596 N.W.2d 749 (1999) (stating the “normal procedure” in criminal cases is to address forfeited arguments

“ within the rubric of the in effective assistance of counsel”).

¶ 14 W hen reviewing an ineffective assistance of counsel claim, w e will uphold the circuit court’s findings of fact unless they are clearly erroneous. State v. Nielsen , 2001 WI App 192, ¶14, 247 Wis

. 2d 466, 634 N.W.2d 325. However, whether the defendant’s proof is sufficient to establish ineffective assistance is a question of law that we review independently. Id.

¶ 15 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 defense. Strickland v. Washington , 466 U.S. 668, 687 (1984). To prove deficient performan ce, the defendant must point to specific acts or omissions by counsel that are “outside the wide range of professionally competent assistance.” Id. at 690. To demonstrate prejudice, the defendant must show “a reasonable probability that, but for counsel’ s unprofessional errors, the result of the procee ding would have been different .” Id. at 694. If a defendant fails to make a sufficient showing on one prong of the Strickland test, we need not
address the other. Id. at 697.

¶ 16 T he circu it court rejected Shaughnessy’s ineffective assistance claims without holding a Machner hearing. If a postconviction motion alleges facts that, if true, would entitle the defendant to relief, then the circuit court must hold an evidentiary hearing on the motion. State v. Bentley , 201 Wis. 2d 303,No. 2022AP110

7 309, 548 N.W.2d 50 (1996)

. The court may deny the motion without a n evidentiary hearing, however, i f the motion “ f ails to allege sufficient facts

... to raise a question of fact, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief .” Id. (citation omitted).

I. Breach of the plea agreement

¶ 17 A criminal defendant has a due process right to the enforcement of a negoti ated plea agreement. State v. Williams , 2002 WI 1, ¶37, 249 Wis. 2d 492,
637 N.W.2d 733. A defendant who alleges that the State has breached a plea agreement must show, by clear and convincing evidence, that a breach occurred
and that the breach was mate rial and substantial. State v. Campbell , 2011 WI App 18, ¶7, 331 Wis. 2d 91, 794 N.W.2d 276 (2010). A breach is
material and substantial if it violates the terms of the plea agreement and defeats
the benefit f

or which the accused bargained. Williams , 249 Wis. 2d 492, ¶38. In this case, b ecause the facts relevant to the State’s alleged breach are undisputed , whether the State ’s conduct amounted to a material and substantial breach of the plea agreement is a question of law that we review independently

. See Campbell , 331 Wis. 2d 91, ¶7.

¶ 18 A prosecutor ’s failure to present a negotiated sentence
recommendation to the circuit court constitutes a breach of the plea agreement. Williams , 249 Wis. 2d 492, ¶38. In addition, “[w] hile a prosec utor need not enthusiastically recomme nd a plea agreement, he or she ‘ may not render less than
a neutral recitation of t he terms of the plea agreement.’” Campbell , 331 Wis. 2d 91, ¶17 (citation omitted). Stated differently, “the State may not accomplish through indirect means what it promised not to do directly, and it may not covertlyNo. 2022AP110

8 convey to the [circuit] court that a more severe sentence is warranted than that recommended.” State v. Hanson , 2000 WI App 10, ¶24, 232 Wis. 2d 291, 606 N.W.2d 278 (1999).

¶ 19 Nevertheless, t he State may discuss negative facts about the
defendant during its sentencing remarks in order to justify a recommended

sen tence within the plea agreement’ s parameters. Campbell , 331 Wis. 2d 91, ¶17. In fact, the State has a “ duty to convey relevant information to the sentencing
court, ” which the State must balance against its duty to honor the plea agreement. Williams , 249 Wis. 2d 492, ¶44. T he State must therefore walk a “fine line” at sentencing when required by a plea agreement to make a specific sentence
recommendation. Id

. ¶ 20 Shaughnessy contends that the prosecutor crossed this fine line during his sentencing argument by making statements that “served to undercut the plea agreement and covertly indicated that the agreed

- upon rec ommendation was too lenient.” Specifically, Shaughnessy notes that after reciting the parties’ joint recommendation, the prosecutor stated that he had reviewed the PSI, which was

deeply di sturbing, one of the most disturbing PSI s that I have reviewed in my time prosecuting, for a couple of reasons. I think what stood out the most, despite the fact that the defendant pled guilty to the second[

- ]degree child sexual assault in this case, he c ontinually denied it to the presentence investigator. And he despicably blamed much of the allegations against him on his son. Those are two things that I find very ha rd, very difficult to see past.

¶ 21 T he prosecutor then noted that, des pite Shaughnessy ’s denials in the PSI, “this wasn’t a c ase where the proof was lacking,” given the video footage that showed Shaughnessy sexually assaulting Carly

. In particular, the prosecutor noted that during the video, the camera “pan[ned] back to [Sh aughnessy’s] own face andNo. 2022AP110

9 you see the disturbing, disgusting, smirk on his face .” Under these circumstances, the prosecutor stated that Shaughnessy’s “continued denials and his excuses are disgusting.”

¶ 22 Throughout his sentencing remarks , the prosecutor also repeatedly referred to this case as being “aggravated” and called Shaughnessy’s crime “very grave.” T he prosecutor specifically stated that “ much of the aggravated nature of this offense goes directly to the character of the defendan t. These are terrible things that he’s done. The way that he’s used other people for his own p leasure is a terrible thing.” The prosecutor also stated that there were “disturbing” things in the PSI “ about how [Shaughnessy] views himself as a father ,” emphasizing that Shaughnessy knew that his daughter was using marijuana but did nothing to intervene. In addition, the prosecutor emphasized that Shaughnessy had blamed his son for “hooking [Carly] on methamphetamine” and for sending Carly vulgar
messages from Shaugh nessy’s Facebook account. T he prosecutor further noted that Shaughnessy had “a very serious criminal his tory dating back many years”
and stated that there were not “very many redeeming things about [Shaughnessy’s]
character that can be seen fr om the evidence that’s been pres ented in the form of the PSI.”

¶ 23 Finally, the prosecutor emphasized that there were “very serious concerns” regardin g the protection of the public because Shaughnessy’s failure to accept responsibility “mak es him a further risk to commit o ther offenses in the future.” The prosecutor also asserted that Shaughnessy’s poor performance while
released on bond

shows he is a very serious danger to the public. His lengthy criminal history, it shows that he is a da nger to the public. And this very crime here is one of the most seriousNo. 2022AP110

10 types of crimes that a person can commit, one of the most horrendous types of cr imes that a person can commit.

¶ 24 Shaughnessy argues these comments show that the pros ecutor “reconsidered the recommendation that he agreed to make aft er reviewing the PSI report.” According to Shaughnessy, th e prosecutor’s “vilification of ... Shaughnessy served no purpose other than to portray [him] as an unrepentant monster and convey to the sentencing court that the recommended sentence was woefully inadequate puni shment for someone like him.” We disagree. Shaughnessy has not shown , by clear and convincing evidence , that the comments
cited above constitute d a material and substantial b reach of the plea agreement , when considered in the context of the prosecutor’s entire sentencing argument

. ¶ 25 Notably, the prosecutor began his sentencing argument by reciting the joint recommendation and explaining why he believed that recommendation was appropriate

. First, the prosecutor noted that, as a result of the plea agreement containing the joint recommendation, Shaughnessy had agreed to withdraw his suppression motion challenging the search of his cell phone and SD card. The prosecutor explained that the suppression motion presented an i ssue of law that was “unsettled ” and that, “by reaching this resolution [,] we are having some clarity about what will happen, ... a known outcome here. ” Second, the prosecutor emphasized that th e joint recommendation of five years’ initial confinement meant that Carly would reach the age of twenty

- one before Shaughnessy was released from prison, which would give her “some period of time acclimating herself to adulthood” before his release. Third , the prosecutor noted that at the time the parties entered into the plea agreement, Carly did not want to testify at trial, and the agreement obviated the need for her to do so.No. 2022AP110

11 ¶ 26 Only after explaining the rationale for the plea agreemen t and joint recommendation did the prosecutor make the comments that Shaughnessy now contends breached the plea agreement. We agree with the State, however, that in making his sentencing argument, the prosecutor needed to acknowledge the negative facts of the case, including the aggravated facts set forth in the PSI, to avoid losing credibility with the circuit court. As the State aptly notes, “It was not feasible to simply ignore the elephant in the room.” Moreover, and importantly,

t he prosecutor concl uded his sentencing argument by stating:

Again, your Honor, I am asking that the Court follow the joint recommendation that we have here today. This is one that Counsel spent a great deal of time crafting and for very good reasons. The defendant did give up his right to challenge the evidence in this case and he should be given some consideration for that in the form of this recommendation that we have. So, your Honor, I am asking that the Court sentence the defendant to the Wisconsin State Prison System for a period of five years or ten years, five years of initial confinement followed by five y ears of extended supervision.

¶ 27 Thus, while the prosecutor discussed negative information about Shaughnessy during his sentencing argument , he both began and ended his remarks by reciting the agreed

- upon joint recommendation. The prosecutor also explained why, despite the aggravated facts, the joint recommendation of five years’ initial confinement and five years’ extended supervision was appropriate. Under these circumstances, Shaughnessy has not shown that the prosecutor’s
remarks constituted a material and substantial breach of the plea agr eement. As such, Shaughnessy’s trial attorney did not perform deficiently by failing to object to the State’s alleged breach

. See State v. Berggren , 2009 WI App 82, ¶21, 320
Wis. 2d 209, 769 N.W.2d 110 (counsel does not perform deficiently by failing toNo. 2022AP110

12 raise a legal challenge that would have been properly denied)

. Furthermore, because the record conclusively shows that Shaughnessy is not entitled to relief , the postconviction court properly rejected this claim without a Machner hearing.
See Bentley , 20 1 Wis. 2d at 309.

II. Inaccurate information

¶ 28 Shaughnessy next argues that the circuit court erred by relying on inaccurate information at sentencing. “A defendant has a constitutionally protected 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 prevail on a claim for resentencing based on inaccurate information, a defen dant must show , by clear and convincing evidence , that: (1) there was inaccurate information before the court at sentencing , and (2) the court actually relied on the inac curate information when imposing the defendant’s sentence

. State v. Coffee , 2020 WI 1, ¶ 38, 389 Wis. 2d 627, 937 N.W.2d 579.

¶ 29 Shaughnessy first contends that , when imposing his sentence, the
circuit court relied on an inaccurate belief that he had provided Carly with methamphetamine in exchange for sex. Shaughnessy not es that , during the sentencing hearing, he expressly denied having sexual intercourse with Carly or trading her methamphetamine for sex. He further asserts that there was no other evidence in the record to support the court’ s belief that he had done so.

¶ 30 Shaughnessy has failed to show , b y clear and convincing evidence , that the circuit court’s statement about him giving Carly methamphetamine in exchange for sex was inaccurate. There was evidence in the record to support the court’s infe rence in that regard. First , while Shaughnessy denies that he ever had
sexual intercourse with Carly, the record would permit a contrary conclusion

. AsNo. 2022AP110

13 discussed above, the amended complaint recounted Facebook messages in which Shaughnessy told Carly tha t he was “thinking about coming over and tearing up that pussy” and instructed her to “tighten up your cock washer , ” as well as
messages about Carly sneaking out of her mother’s home to meet Shaugh nessy. In addition, the PSI recounted that law enforcement had recovered a pair of
underwear bearing both Shaughnessy’s sperm and other DNA for which Carly was included as a possible contributor

. This evidence

— in addition to the video showing Shaughnessy fondling Carly’s bare breasts

— would permit a reasonable inference that Shaughnessy had sexual intercourse with Carly, despite his denial.

¶ 31 Additionally, t he amended complaint alleged that a mandatory reporter told investigators that Carly “had been using methamphetamine and prescription med ication, allegedly provi ded to her by [Shaughnessy].” The
amended complaint also stated that Carly’s mother told police that she believed Shaughnessy had supplied Carly with methamphetamine. Carly’s mother later told the PSI author that Carly “will have sex with anyone in exchange for meth.” Taken together, this evidence supported a reasonable inference that Shaughnessy supplied Carly with methamphetamine in exchange for sex. On this re cord, Shaughnessy has not shown by clear a nd convincing evidence tha t the circuit court’s statement to that effect was “extensively and materially false.” See State v.
Travis , 2013 WI 38, ¶18, 347 Wis. 2d 142, 832 N.W.2d 491.

¶ 32 Shaughnessy next asserts that the circuit court relied on an inaccurate belief that he was a sexual deviant with no possibility of rehabilitation. During its sentencing remarks, the court stated: “I think you have a defect in your character that allows you to have weird sex, kinky sex, prost itute sex, all of those things. T hat’s

— that will stay with you. Even if you agreed to be castrated your
b rain still has it up there. You would still try .”No. 2022AP110

14 ¶ 33 We agree with the State that the circuit court’s comments regarding “kinky sex” and castration were “inartful,” and we do not condone them. Nevertheless, we als o agree with the State that Shaughnessy has not met his
burden to show that there was inaccurate information before the court regarding
his sexual deviancy or the prospect of rehabilitation

. Notably, the co urt never actually said that Shaughnessy was a sexual deviant, nor did it state that Shaughnessy had no possibility of rehabilitation. While the court stated that Shaughnessy had a “defect in [his] character” related to sexual behavior that would “stay wi th [him],” that comment was not tantamount to a statement that Shaughnessy would necessarily be unable to conform his conduct to the law in the future, regardless of any treatment that he received

. Furthermore, while Shaughnessy emphasizes that the court order ed a sexual deviancy evaluation as a
condition of his extended supervision , that condition merely shows that the court believed Shaughnessy should be evaluated for sexual deviancy, not that the court had already concluded he was a sexual deviant

. ¶ 34 Relatedly, Shaughnessy asserts the circuit court ’s statement that he “[has] weird sex, kinky sex, prostitute sex ” was inaccurate. He contends that the court “did not provide a definition for its subjective opinion on what constitutes
‘kin ky’ or ‘weird’ sex” and that there is “nothing in the record ... that would indicate he patronizes pros titutes as the court alleged.”

¶ 35 As to Shaughnessy’s first assertion, the circuit court could reasonably conclude that forty

- four

- year

- o ld Shaughnessy’ s sexual conduct with a
fifteen

- year

- old friend of his daughter and ex

- girlfriend of his son

— some of which conduct Shaughnessy video recorded

— was evidence that he had engag ed in “kinky” or “weird” sex. Shaughnessy’s admission to the PSI aut hor that he wasNo. 2022AP110

15 “ involved in threesomes twice and engag[ed] in internet sex on three occasions ” further supported the court’s conclusion.

¶ 36 As to Shaughnessy’s second assertion, Shaughnessy is correct that there is no evidence in the record indicating that he patronizes prostitutes. However, even assuming that the circuit court’s statement in that regard was
inaccu rate, Shaughnessy has not sh own b y clear and convincing evidence that the court gave “explicit attention” or “specific consideration” to the inaccurate information, such that it “formed part of the basis for the sentence.” See Tiepelman , 291 Wis. 2d 179, ¶14 . The court’s single com ment regarding Shaughnessy patronizing prostitutes cannot be said to have formed part of the basis for Shaughnessy’s sentence when considered within the larger context of the court’s sentencing remarks.

¶ 37 We therefore reject both of Shaug hnessy’s inaccurate information
claims. Because Shaughnessy’s inaccurate information claims fail on their merits, his trial attorney did not perform deficiently by failing to object. See Berggren , 320 Wis. 2d 209, ¶21. In addition , because the record co nclusively shows that Shaughnessy is not entitled to relief, the postconviction court did not err by denying Shaughnessy’s ineffective assistance claim on these grounds without a Machner hearing. See Bentley , 201 Wis. 2d at 309.

III. Improper factors

¶ 38 Next, Shaughnessy argues that the circuit court impermissibly relied on two improper factors when imposing his sentence. “A circuit court erroneously exercises its sentencing discretion when it ‘actually relies on clearly irrelevant or improper factors.’” State v. Alexander , 2015 WI 6, ¶17, 360 Wis. 2 d 292, 858
N.W.2d 662 (citation omitted). Examples of improper factors include aNo. 2022AP110

16 defendant’s race, national origin, gender, and religion

. Id. , ¶23. A defendant bears the burden of provin g, b y clear and convincing evidence, that the court actually relied on an improper factor. Id. , ¶ 17.

¶ 39 “To prove ‘actual reliance’ on an improper factor, a defendant must
show that the circuit court made the improper factor a part of the ‘basis for the
sentence.’” State v. Whitaker , 2022 WI 54, ¶13, 402 Wis. 2d 735, 976 N.W.2d 304 (citation omitted). Stated differently, the defendant must show that the court imposed a harsher sentence solely because of the improper factor. Id. “[I]f a circuit court’ s referenc e to a challenged factor bears ‘a reasonable nexus’ to a proper sentencing factor, then the circuit court has not imposed sentence based ‘solely’ on the improper factor. ” Id. (citation omitted).

¶ 40 Shaughnessy first argues that the circuit court improperly sentenced him based on his gender. After announcing Shaughnessy’s sentence, the court explained: “This particular sentence coincides with you getting out when you are 60 years old. You being supervised until you are 70 years old. By then lots of things aren’t going to work.” Shaughnessy asserts the “obvious implication” of this statement was that he “would be too old to be able to get an erection by the
time he was released from prison.” Shaughnessy therefore contends that the court improperly sentenced him based on his gender because , if he were female, there

“ would not be any need to impose a prison sentence long enough to ensure his penis no longer worked by the time he was released.”

¶ 41 Shaughnessy has failed to show , by clear and convincing evidence , that the circuit court actually relied on his gender when imposing his sentence. As an initial matter, we are not convinced that the court’s challenged commen t was actually a reference to Shaughnessy’ s gender

. Rather than referring toNo. 2022AP110

17 Shaughnessy’s ability to have an erection, t he court could have been commenting on Shaughnessy’s decreased ability to manipulate young g irls by the time he reached age seventy

— a consideration unrelated to his gender. E ven assuming that
the challenged comment was a reference to Shaughnessy’s gender, however, Shaughnessy cannot show that the court actually relied on an improper factor
because the comment bore a “reasonable nexus” t o a proper sentenc ing factor

. See id. (citation omitted).

¶ 42 Our supreme court’s decision in Whitaker is instructive. There, when imposing sentence in a sexual assault case, the circuit court repeatedly
referenced Whitaker’s childhood Amish community and stated its intent to deter others within that community from failing to report or stop ongoing sexual
assaults

. Id. , ¶14. O n appeal, o ur supreme court assumed, without deciding, that
these references to Whitaker’s childhood Amish community were improper. Id.
T he court concluded, however, that Whitaker had failed to show that the assumed improper factor “ was the sole cause of a harsher sentence because it [bore] a reasonable nexus to relevant and proper sentencing factors. ” Id. Specifically, the

court concluded that the circuit court’s comments urging members of Whitaker’s childhood Amish community to report or stop sexual assault s were related to the valid sentencing factors of general deterrence and protection of the public. Id. , ¶¶ 15

- 18

. ¶ 43 Here, the circuit court’s alleged reference to Shaughnessy’s gender bore a reasonable nexus to a proper sentencing factor

— namely, protection of the public. The court could consider the fact that Shaughnessy had sexually assaulted
a child and could further reasonably infer that he had used his penis to do so

. In drawing that inference, the court could specifically consider the video that showed Shaughnessy touching his erect penis while fondling Carly’s breasts. Under the seNo. 2022AP110

18 circumstances, the court essentially decided that , in order to protect the public, Shaughnessy needed to be incarcerated or supervised until he became too old to be
l ikely to victimize anyone else. As in Whitaker , there was a reasonable nexus between the improper factor

— Shaughnessy’s gender

— and a proper sentencing
factor

— protection of the public

. A s such, Shaughnessy has failed to show by clear and convincing ev idence that the court actually relied on an improper factor.

¶ 44 Next, Shaughnessy argues that the circuit court impermissibly imposed a lengthier sentence based on his “physical appearance and attractiveness to teenage girls.” During its sentencing remarks, t he court stated:

Now, my goal here is to make sure that you are old enough where a 15 year old, 16, 17 year old girl, would find you terribly unattractive and would never even think of allowing them to be groomed by you

. And how do yo u accomplish that? By you getting older in prison. So that’ s the goal here.

Shaughnessy contends that a defendant’s physical appearance “is not an appropriate factor for the court to rely on in imposing sentence” and that “[a]n
attractive defendant shoul d not receive a lengthier sentence tha n an unattractive defendant.”

¶ 45 This argument fails for two reasons. First, Shaughnessy cites no legal authority in support of the proposition that a defendant’s physical attractiveness is an imprope r factor for consideration at sentencing

. We need not consider arguments that are unsupported by references to legal authority. See State v. Pettit , 17 1 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992)

. ¶ 46 Second, the circuit court never stated that it believed Shaughnessy was physically attractive and that it was imposing a lengthier sentence for that

reason. Instead, the court reasonably inferred that

— whatever Shaughnessy’sNo. 2022AP110

19 current level of physical attractiveness

— as he aged, he would become less physically attractive to teenage girls and would therefore be less capable of manipulating them and groom ing them for sexual assault. Thus, to the extent the court considered Shaughnessy’s physical attractiveness, that factor bore a
reasonable nexus to a proper sentencing factor

— i.e., protection of the public. See Whitaker , 402 Wis. 2d 735, ¶13. Accordingly, even if a defendant’s physical attractiveness is an improper factor, Shaughnessy has failed to demonstrate that the court actually relie d on that factor when imposing his sentence

. 4

¶ 47 B ecause Shaughnessy has failed to show that the circuit court actually relied on any improper factors at sentencing , his trial attorney did not perform deficiently by failing to object. See Berggren , 320 Wis. 2d 209, ¶21. Furthermore, the postconviction court properly denied Shaughnessy’s ineffective
assistance claim on these grounds without a Machner hearing , as the record conclusively shows that Shaughnessy is not entitled to relief. See Bentley , 201
Wis. 2d at 309.

IV. Trial counsel’s sentencing argument

¶ 48 Finally, Shaughnessy argues that his trial attorney was constitutionally ineffective at sentencing by “agreeing with the State’s objectionable statements and maki ng objectionable statements of his own, particularly regarding the PSI and its negative assertions .” Among other things,

4 In a related argument, Shaughnessy asserts that his “physical attractiveness to [fifteen

- to

- seventeen]

- year

- old girls would also not have been a significant fa ctor had he been female.” Shaughnessy provide s no support for this assertion and does not further develop his argument in this regard. “We may decline to review issues [that are] inadequately briefed.” State v. Pettit , 171 Wis. 2d 627, 646, 492 N.W.2d 6 33 (Ct. App. 1992).No. 2022AP110

20 Shaughnessy ’s trial attorney : (1) described the prosecutor’s summary of the case

as “accurate, if not somewhat troubling” ; (2) discus sed the “aggravating” fact that Shaughnessy was a “father figu r e” for Ca rly ; (3) stated that counsel had seen

“ worse

... scores ” on the COMPAS risk assessment, but “not many ”; (4) emphasized Shaughnessy’s “troubling” scores on the “substance abuse” and “criminal associates” portions of the COMPAS assessment ; (5) s tated that counsel
had only seen “a couple” PSIs worse than Shaughnessy’s; and (6) stated that Shaughnessy “ still struggles with accepting wh at he’ s done. ”

¶ 49 Shaughnessy contends that his trial counsel’s “harsh statements against his client’s own interests ” and “ agreement with the worst aspects of the prosecutor’s statements ” were “ inexcusable .” He contends that none of the
statements identified above “served to advance or protect [Shaughnessy’s] interests in any way . They were purely harmful.”

¶ 50 We conclude that the postconviction court properly denied this
ineffective assistance claim without a Machner hearing because the reco rd conclusively shows that Shaughnessy is not entitled to relief. Specifically, Shaughnessy cannot establish that his trial attorney’s remarks constituted deficient performance.

¶ 51 Shaughnessy a sserts that his trial attorney should have “ disput[ed], clarif[ied], explain[ed], or even ignor[ed]” the prosecutor’s negative comments about Shaughnessy and the aggravated facts set forth in the PSI , rather than “[a]greeing with (and highlighting)” thos e negative characterizations. As the State
ap tly notes, however, the circuit court had read the PSI and “already [knew]” that “the facts were bad.” We agree with the State that, under these circum s tances, “[i] gnoring the facts or making excuses for them would not have helped .”No. 2022AP110

21 ¶ 52 In any event, Shaughnessy’s trial attorney did try to explain and contextualize the aggravated fact s of the case. In particular, trial counsel argued
that there are ess entially “two Chris Shaughnessy s”

— the “hard [

- ] working, caring, family man Chris Shaug hnessy” and the “troubled, drug[

- ] addicted, criminal Chris Shaughnessy. ” Trial counsel emphasized that Shaughnessy’s criminal behavior and failure to accept responsibility were the result of his struggles with methamphetamine, but when sober, Shaughnessy “is remorseful and regrets what happened.” Trial counsel also emphasized that Shaughnessy had been sober for eight months

. In addition, trial counsel noted that Shaughnessy had been placed on probation in the past and had never been revoked, which was a “bright spot in the PSI.” Finally, while trial counsel joined in the State’s recommendation for five years’ initial confinement followed by five years’ extended supervision, he
also argued that a longer sentence could have negative ramifications, as keepi ng a
person incarcerated for too long can negatively affect his or her ability to function outside of prison.

¶ 53 Ultimately, we agree with the State that S haughnessy’s trial attorney “did the best he could given the terrible facts Shaughnessy gave him to work with.” Trial counsel did not perform deficiently by acknowled ging the negative
facts about S haughnessy and his crime but then arguing , for several rea sons, that the parties’ joint sentence recommendation was nevertheless appropriate. Because the record conclusively demonstrates that Shaughnessy is not entitled to relief, the postconviction court di d not err by rejecting this ineffective assistance clai m without a Machner hearing. See Bentley , 201 Wis. 2d at 309.No. 2022AP110

22 By the Court.

— Order affirmed.
This opinion will not be published. See W IS

. S TAT

. R ULE 809.23(1)(b)5.