COURT OF APPEALS

DECISION

DATED AND FILED

July 3, 2024

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. 2023AP77-CR Cir. Ct. No. 2017CF122

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

CHAD M. POTRYKUS,

 DEFENDANT-APPELLANT.

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

Waukesha County: BRAD D. SCHIMEL and LLOYD V. CARTER, Judges. 

Affirmed. 

Before Gundrum, P.J., Neubauer and Grogan, 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. 2023AP77-CR

2

¶1 PER CURIAM. Chad M. Potrykus appeals from a judgment of 

conviction for burglary and an order that denied his postconviction motion for 

resentencing without an evidentiary hearing.1 Potrykus argues that he is entitled to 

resentencing because: (1) the sentencing court relied on inaccurate information at 

sentencing; and (2) his trial counsel was ineffective by failing to object to the 

inaccurate information during the sentencing hearing. For the reasons set forth in 

this opinion, we reject Potrykus’ arguments and summarily affirm. 

¶2 The parties do not dispute the basic facts pertinent to this appeal. 

Potrykus pled no contest to burglary. The circuit court withheld sentence and 

placed Potrykus on probation. The Department of Corrections (DOC) later 

revoked Potrykus’ probation for his involvement in criminal activities in Douglas 

County on January 6, 2021. The revocation packet prepared by the DOC also 

included information from a sheriff’s investigator related to a search on October 9, 

2020 at an apartment where Potrykus’ personal identifying information was found. 

On sentencing after revocation, the court imposed five years of initial confinement 

and three years of extended supervision.

¶3 Potrykus moved for resentencing on the grounds that the sentencing 

court relied on inaccurate information and that his trial counsel was ineffective for 

not objecting when the court referred to the inaccurate information before 

imposing sentence. On review, the postconviction court summarily denied 

resentencing without an evidentiary hearing. It held that the sentencing court did 

not rely on inaccurate information and, for that reason, Potrykus would be unable 

 

1

 The Hon. Brad D. Schimel presided over Potrykus’ original sentencing hearing and 

sentencing after revocation. The Hon. Lloyd V. Carter presided over the postconviction hearing 

on the motion for resentencing.
No. 2023AP77-CR

3

to prove ineffective assistance of counsel at an evidentiary hearing. Potrykus 

appeals.

¶4 Potrykus argues that there were two pieces of inaccurate information 

that the sentencing court considered in violation of his constitutional right to due 

process: (1) that he possessed a gun on October 9, 2020; and (2) that he was 

involved in drug trafficking on October 9, 2020. Potrykus further argues that his 

trial counsel was ineffective for not pointing out the inaccurate information to the 

sentencing court and for not discovering an informant’s statement in a sheriff 

investigator’s report indicating that Potrykus was not involved in drug trafficking 

out of the apartment.

2

 Potrykus asserts that he is entitled to an evidentiary hearing 

on the ineffective assistance of counsel claim. The State responds that the 

sentencing court did not rely on inaccurate information and, therefore, trial 

counsel was not ineffective for failing to object to the information at the 

sentencing after revocation hearing. 

¶5 “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. Whether the defendant was denied that right is a 

constitutional question that we review de novo. Id.

 

2

 In briefing, Potrykus asserts that the sentencing court held him responsible for violating 

a condition of probation that was not verbally stated on the record but was included in the written 

judgment of conviction—namely, that he not associate with known drug users or drug traffickers. 

However, the transcript of the sentencing after revocation hearing does not support a conclusion 

that the sentencing court imposed a harsher sentence based on a violation of this, or any, 

condition in particular. The DOC revoked Potrykus’ probation for his possession of a firearm and 

methamphetamine on January 6, 2021. This was the information on which the court relied. The 

record is clear that the danger to the community based on Potrykus’ continued involvement with 

firearms and drugs drove his sentence after revocation, not the fact that he violated a particular 

probation condition set by the court.
No. 2023AP77-CR

4

¶6 A defendant seeking resentencing “must show by clear and 

convincing evidence that: (1) some information at the original sentencing was 

inaccurate, and (2) the circuit court actually relied on the inaccurate information at 

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

If “the defendant shows actual reliance on inaccurate information, the burden then 

shifts to the State to prove the error was harmless.” State v. Travis, 2013 WI 38, 

¶23, 347 Wis. 2d 142, 832 N.W.2d 491. “A reviewing court must independently 

review the record of the sentencing hearing to determine the existence of any 

actual reliance on inaccurate information.” Id., ¶48. “We review the circuit 

court’s articulation of its basis for sentencing in the context of the entire 

sentencing transcript[.]” State v. Alexander, 2015 WI 6, ¶25, 360 Wis. 2d 292, 

858 N.W.2d 662.

¶7 As did the postconviction court, we begin by turning to the record on 

the sentencing court’s remarks. The court properly addressed the three required 

sentencing objectives: the seriousness of the offense (explaining that the 

underlying burglary offense “was serious because an AR15 rifle was stolen and 

because of your actions was put into illegal circulation”); Potrykus’ character 

(noting his extensive criminal history and that the court had granted probation 

because Potrykus “had some successes” in the past, but, with Potrykus’ pending 

charges related to being pulled over “now we are dealing with guns and drugs 

again”); and the need to protect the public (observing that the burglary for which 

Potrykus was being sentenced after revocation “was one that there was a 

significant danger to the community and need to protect the community from 

you”). 

¶8 The sentencing court also addressed Potrykus’ rehabilitation need. It 

concluded, based on Potrykus’ numerous failed attempts at probation throughout 
No. 2023AP77-CR

5

his criminal career, that it had “no choice but to have that rehabilitation need be 

addressed in a confined setting.” 

¶9 After reciting Potrykus’ lengthy criminal record and history of 

repeated failure on supervision, the sentencing court discussed the January 6, 2021 

incident. It stated:

 On January 6th of this year when you’re pulled over in 

that vehicle, you say you don’t know anything about the 

things in the vehicle. Another person in the car says 

otherwise. It’s often familiar because now we are dealing 

with guns and drugs again. Best case scenario you’re 

hanging around with known drug users again.

¶10 The court was aware that charges arising out of that incident were 

pending in Douglas County at that time.3 Potrykus does not challenge the 

accuracy of anything in connection with the January 6 incident.

¶11 The sentencing court then discussed the October 9, 2020 search of 

the apartment in Superior where Potrykus was staying. It is information related to 

this search that Potrykus argues was inaccurately presented to the court. Related 

to this incident, the court accurately noted that Potrykus was “in places where drug 

trafficking was going on.” However, the court acknowledged, as defense counsel 

had earlier pointed out, that Potrykus was not charged with any offense in 

connection with that residence. The court observed, again accurately, that the 

search produced “all sorts of things. And again, a gun involved.” It was only at 

this point where the court misstated that Potrykus’ personal identifiers were found 

 

3

 Eighteen days after he was sentenced after revocation in this case, Potrykus pled no 

contest to, and was convicted in Douglas County Circuit Court of, possession of a firearm by a 

convicted felon as a repeat offender and possession of methamphetamine, both in connection with 

the January 6, 2021 incident. 
No. 2023AP77-CR

6

inside a drawer that also contained a gun. Defense counsel did not object or 

correct the court. As he did at the postconviction hearing, Potrykus argues on 

appeal that this misstatement by the court and counsel’s failure to object entitle 

him to resentencing or, in the alternative, an evidentiary hearing on counsel’s 

alleged ineffectiveness.

¶12 Although the sentencing court did misstate that Potrykus’ identifiers 

were found in a drawer with the gun, that misstatement was not far off the mark. 

The sheriff investigator’s report, which was included in the revocation packet, 

revealed that Potrykus’ personal identifiers were found in a kitchen drawer that 

also contained a baggie of marijuana. No gun was found in that drawer, but a 

detective “located a silver handgun magazine inside of a kitchen drawer” 

(presumably not the drawer with Potrykus’ identifiers) during the search. There 

was also evidence that Potrykus lived in the home, and at least two of the homes’ 

residents were charged with drug trafficking, meaning that Potrykus had 

associated with drug traffickers while he was on probation. The court was 

therefore not mistaken in observing that Potrykus had affiliated with drug 

traffickers during this time period. Thus, the only inaccuracy in the sentencing 

court’s statements was that the handgun magazine was actually found in another 

kitchen drawer, rather than in the drawer with a baggie of marijuana and Potrykus’

personal identifiers. 

¶13 In imposing a sentence, “[t]he [circuit] court considers a variety of 

factors because it has a responsibility ‘to acquire full knowledge of the character 

and behavior pattern of the convicted defendant before imposing sentence.’” State 

v. Salas Gayton, 2016 WI 58, ¶23, 370 Wis. 2d 264, 882 N.W.2d 459 (citation 

omitted). “The sentencing court ... must be permitted to consider any and all 

information that reasonably might bear on the proper sentence for the particular 
No. 2023AP77-CR

7

defendant, given the crime committed.” Id. (citation omitted). Therefore, the 

scope of the information a court may consider includes “not only ‘uncharged and 

unproven offenses’ but also facts related to offenses for which the defendant has 

been acquitted.” Id. (citations omitted). Such was the case here. There is no 

indication that either the investigator’s report or the revocation packet indicated 

that Potrykus himself was involved in drug trafficking or keeping firearms at the 

residence. It indicated that other residents of the home were so involved, and it 

was not unreasonable for the sentencing court to infer that Potrykus associated 

with those people, particularly because the report indicated that several personal 

identifiers of Potrykus’ were found in the home.

¶14 In sum, there is no indication that the information provided to the 

sentencing court contained inaccuracies. Potrykus’ sentence was based entirely on 

accurate information―relative to both the October 9, 2020 search results and 

Potrykus’ crimes on January 6, 2021―showing that he continued to associate with 

drug users and traffickers, he possessed and used drugs, and drove a car on 

January 6, 2021 with a loaded firearm and methamphetamine in the trunk. The

sentence was not based on a finding that Potrykus either possessed a firearm or 

engaged in drug trafficking in October 2020. Further, Potrykus has not shown that 

the court’s misstatement that Potrykus’ identifiers were found in a kitchen drawer 

with a gun had any bearing on the sentence. 

¶15 Simply put, there is no evidence that the sentencing court either 

received or relied on inaccurate information when imposing sentence. We 

therefore conclude that Potrykus fails to satisfy his burden to show by clear and 

convincing evidence that inaccurate information was presented to the court at 

sentencing and that the court relied upon this information. Coffee, 389 Wis. 2d 

627, ¶38. Accordingly, Potrykus’ constitutional right to due process was not 
No. 2023AP77-CR

8

violated. Tiepelman, 291 Wis. 2d 179, ¶9. He is not entitled to resentencing, and 

his postconviction claim fails.

¶16 Potrykus also argues that his trial counsel was ineffective by failing 

to object to the allegedly inaccurate information provided at sentencing. He 

asserts that he was prejudiced by his counsel’s deficient performance because 

there is a reasonable probability that the court would have imposed a lesser 

sentence absent the inaccurate information. See Strickland v. Washington, 466 

U.S. 668, 690, 694 (1984) (claim of ineffective assistance of counsel must show 

that counsel’s performance was deficient and prejudiced the defendant, that is, that 

“there is a reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different”). This court need not address 

both prongs if the defendant fails to make a showing on one of them. See id. at 

697.

¶17 As an initial matter, contrary to Potrykus’ assertions, we observe that 

trial counsel did point out inaccuracies in the revocation packet related to the 

October 2020 incident. Counsel explained as follows:

There is a lengthy part of the revocation packet that 

references an incident from October 9th of 2020 in which 

drugs, money and a gun were found in my client’s 

residence ... It wasn’t his residence. He was roommates 

with two other individuals. I think it should be noted that 

no criminal charges were filed as a result of that incident.

¶18 As stated above, the sentencing court made a point to repeat 

counsel’s statement that Potrykus was not charged with any offenses related to the 

October 2020 incident. Nonetheless, Potrykus argues that he was prejudiced by 

counsel’s failure to correct the court in its statements that a gun, rather than 
No. 2023AP77-CR

9

marijuana, was found in a drawer with Potrykus’ identifiers and that Potrykus 

associated with drug traffickers.

¶19 Here, the prejudice inquiry is intertwined with the inaccurate 

sentencing claim. See Alexander, 360 Wis. 2d 292, ¶¶38-39. As we concluded 

above, Potrykus has not established that inaccurate information was presented at 

sentencing, nor was there evidence that the sentencing court relied on inaccurate 

information. We conclude that Potrykus has failed to make a showing of prejudice 

because he cannot show the resulting sentence would likely have been different. 

Without a showing of prejudice, we need not address whether trial counsel’s 

performance was deficient. See id., ¶39. Potrykus’ ineffectiveness claim fails. 

¶20 Finally, we conclude that the postconviction court acted within its 

discretion to deny Potrykus’ postconviction motion without an evidentiary 

hearing. See State v. Ruffin, 2022 WI 34, ¶28, 401 Wis. 2d 619, 974 N.W.2d 432. 

The record conclusively demonstrates that Potrykus was not entitled to 

postconviction relief. See State v. Jackson, 2023 WI 3, ¶8, 405 Wis. 2d 458, 983 

N.W.2d 608. 
No. 2023AP77-CR

10

By the Court.—Judgment and order affirmed.

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

RULE 809.23(1)(b)5 (2021-22).