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 WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2022AP110 Cir. Ct. No. 2016CF142

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

CHRIS MICHAEL SHAUGHNESSY,

 DEFENDANT-APPELLANT.

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 WIS. STAT. RULE 809.23(3). 

¶1 PER CURIAM. Chris Shaughnessy appeals from an order denying 

his postconviction motion for resentencing. Shaughnessy argues that the State 
No. 2022AP110

2

breached the plea agreement during its sentencing argument and that the circuit

court1relied on inaccurate information and improper factors when imposing his 

sentence. Shaughnessy further asserts that his trial attorney was constitutionally 

ineffective by failing to object to these alleged errors and by emphasizing negative 

information about Shaughnessy during his sentencing argument. In addition, 

Shaughnessy argues that the postconviction court erred by denying his 

postconviction motion without holding a Machner2 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 Shaughnessy’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. The reporter told law 

 

1

 The Honorable Eric J. Lundell sentenced Shaughnessy. We refer to Judge Lundell as 

the circuit court. The Honorable Scott J. Nordstrand denied Shaughnessy’s motion 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 WIS. STAT. RULE 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 stated 

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 Carly 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, investigators found a video that showed Shaughnessy fondling Carly’s bare 

breasts with one hand while his other hand was on his bare, erect penis. 

Investigators also located additional Facebook messages on the phone, in which 

Carly and Shaughnessy 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 all of these messages 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 testing 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 the 
No. 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-degree sexual assault of a child. In 

exchange, the sexual exploitation of a child charge would be dismissed and read 

in, along with additional charges in two other cases. The plea agreement further 

provided that the parties would jointly recommend a ten-year sentence, comprised 

of five years’ initial confinement followed by five 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 offense. 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, that 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 WIS. STAT. § 974.06, seeking resentencing. 

Shaughnessy alleged 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 information 

and improper factors; and (4) Shaughnessy’s appointed postconviction attorney 

was ineffective by failing to file a postconviction motion 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 agreement during 

its 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 relied 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 circuit 
No. 2022AP110

6

court’s alleged reliance on inaccurate information and improper factors, he cannot 

raise those claims directly on appeal. Instead, Shaughnessy must show that his 

trial attorney was constitutionally ineffective 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 ineffective assistance of counsel”).

¶14 When reviewing an ineffective assistance of counsel claim, we 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 performance, 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 proceeding 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 The circuit 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 an 

evidentiary hearing, however, if the motion “fails 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 

negotiated 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 material 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 for which the accused bargained. Williams, 249 Wis. 2d 492, ¶38. In 

this case, because 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 prosecutor need not 

enthusiastically recommend a plea agreement, he or she ‘may not render less than 

a neutral recitation of the 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 covertly 
No. 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, the State may discuss negative facts about the 

defendant during its sentencing remarks in order to justify a recommended 

sentence 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. The 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 recommendation 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 disturbing, one of the most disturbing PSIs 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 continually 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 hard, very difficult to see past.

¶21 The prosecutor then noted that, despite Shaughnessy’s denials in the 

PSI, “this wasn’t a case 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 [Shaughnessy’s] own face and 
No. 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.” The prosecutor specifically stated that “much of the aggravated nature of 

this offense goes directly to the character of the defendant. These are terrible 

things that he’s done. The way that he’s used other people for his own pleasure 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 Shaughnessy’s Facebook account. The prosecutor further noted 

that Shaughnessy had “a very serious criminal history dating back many years” 

and stated that there were not “very many redeeming things about [Shaughnessy’s]

character that can be seen from the evidence that’s been presented in the form of 

the PSI.”

¶23 Finally, the prosecutor emphasized that there were “very serious 

concerns” regarding the protection of the public because Shaughnessy’s failure to 

accept responsibility “makes him a further risk to commit other 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 danger to the 

public. And this very crime here is one of the most serious 
No. 2022AP110

10

types of crimes that a person can commit, one of the most 

horrendous types of crimes that a person can commit.

¶24 Shaughnessy argues these comments show that the prosecutor 

“reconsidered the recommendation that he agreed to make after reviewing the PSI 

report.” According to Shaughnessy, the 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 punishment for someone like him.” We disagree. 

Shaughnessy has not shown, by clear and convincing evidence, that the comments 

cited above constituted a material and substantial breach 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 issue 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 the 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 agreement 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, 

the prosecutor concluded 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 years 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 agreement. 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 to 
No. 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, 201 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 defendant 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 inaccurate 

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 notes 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, by 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 inference in that regard. First, while Shaughnessy denies that he ever had 

sexual intercourse with Carly, the record would permit a contrary conclusion. As 
No. 2022AP110

13

discussed above, the amended complaint recounted Facebook messages in which 

Shaughnessy told Carly that 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 Shaughnessy. 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, the amended complaint alleged that a mandatory 

reporter told investigators that Carly “had been using methamphetamine and 

prescription medication, allegedly provided 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 record, 

Shaughnessy has not shown by clear and convincing evidence that 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, prostitute sex, all of those 

things. That’s—that will stay with you. Even if you agreed to be castrated your 

brain 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 also 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 court 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 with [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 ordered 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 

‘kinky’ or ‘weird’ sex” and that there is “nothing in the record ... that would 

indicate he patronizes prostitutes as the court alleged.”

¶35 As to Shaughnessy’s first assertion, the circuit court could 

reasonably conclude that forty-four-year-old 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 engaged in 

“kinky” or “weird” sex. Shaughnessy’s admission to the PSI author that he was 
No. 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 

inaccurate, Shaughnessy has not shown by 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 comment 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 Shaughnessy’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 conclusively 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. 2d 292, 858 

N.W.2d 662 (citation omitted). Examples of improper factors include a
No. 2022AP110

16

defendant’s race, national origin, gender, and religion. Id., ¶23. A defendant 

bears the burden of proving, by 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 reference 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 comment was 

actually a reference to Shaughnessy’s gender. Rather than referring to 
No. 2022AP110

17

Shaughnessy’s ability to have an erection, the court could have been commenting 

on Shaughnessy’s decreased ability to manipulate young girls by the time he 

reached age seventy—a consideration unrelated to his gender. Even 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” to a proper sentencing 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. On appeal, our supreme court assumed, without deciding, that 

these references to Whitaker’s childhood Amish community were improper. Id. 

The 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 assaults 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 these
No. 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 

likely 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. As such, Shaughnessy has failed to show by 

clear and convincing evidence 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, the 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 you 

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 should not receive a lengthier sentence than 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 improper factor for consideration at sentencing. We need not 

consider arguments that are unsupported by references to legal authority. See 

State v. Pettit, 171 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’s 
No. 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 grooming 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 relied on that factor when imposing his sentence.

4

¶47 Because 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 making 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 factor had he been 

female.” Shaughnessy provides 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 633 (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) discussed the “aggravating” fact that 

Shaughnessy was a “father figure” for Carly; (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) stated that counsel 

had only seen “a couple” PSIs worse than Shaughnessy’s; and (6) stated that 

Shaughnessy “still struggles with accepting what 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 record 

conclusively shows that Shaughnessy is not entitled to relief. Specifically, 

Shaughnessy cannot establish that his trial attorney’s remarks constituted deficient 

performance.

¶51 Shaughnessy asserts 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)” those negative characterizations. As the State 

aptly 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 circumstances, 

“[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 facts of the case. In particular, trial counsel argued

that there are essentially “two Chris Shaughnessys”—the “hard[-]working, caring, 

family man Chris Shaughnessy” 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 keeping 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 Shaughnessy’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 acknowledging the negative 

facts about Shaughnessy and his crime but then arguing, for several reasons, that 

the parties’ joint sentence recommendation was nevertheless appropriate. Because 

the record conclusively demonstrates that Shaughnessy is not entitled to relief, the 

postconviction court did not err by rejecting this ineffective assistance claim 

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 WIS. STAT.

RULE 809.23(1)(b)5.