COURT OF APPEALS

DECISION

DATED AND FILED

November 8, 2022

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2020AP1897-CR Cir. Ct. No. 2018CF66

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

SCOTT LEE REED,

 DEFENDANT-APPELLANT.

APPEAL from a judgment and orders of the circuit court for 

Marinette County: JAMES A. MORRISON, 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. Scott Reed appeals from a judgment convicting 

him of conspiracy to commit first-degree intentional homicide and from orders
No. 2020AP1897-CR

2

denying him postconviction relief. Reed argues that he should be allowed to 

withdraw his no-contest plea due to the constitutionally ineffective assistance of 

his trial counsel. Reed also contends that the circuit court erroneously rejected 

some of his ineffective assistance of counsel claims prior to the Machner1 hearing. 

In the alternative, Reed argues that he must be resentenced due to the court relying 

on inaccurate or improper information at sentencing, or he should have his 

sentence modified based on a new factor. We reject Reed’s arguments and affirm.

BACKGROUND

¶2 In late 2017, Reed was living with two friends, Troy Evert and 

Rachel Kirschner, who were dating one another. At the time, Reed considered 

Kirschner to be his “best friend,” and he would refer to her as his “sister,” even 

though they had no familial relationship. One evening, in October 2017, 

Kirschner became intoxicated and told a recent ex-boyfriend, Joey,2that she and 

her boyfriend Evert had set fire to a person’s cabin after that person called 

Kirschner a “whore.” Upon learning about the fire, Joey insisted that Kirschner

breakup with Evert and threatened to tell law enforcement about the fire. As time 

passed, Joey became “more aggressive” with his demands, and Kirschner grew 

frustrated. At one point, Kirschner threatened to kill herself.

¶3 After Joey learned about the fire, Kirschner and Evert openly 

discussed how “somebody needs to take care of [Joey],” which Reed heard and

 

1

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

2

 Pursuant to the policy underlying WIS. STAT. RULE 809.86(4) (2019-20), we use a 

pseudonym instead of the victim’s name. All references to the Wisconsin Statutes are to the 

2019-20 version unless otherwise noted.
No. 2020AP1897-CR

3

understood meant “to kill” Joey. Reed eventually became involved in a plan to do 

exactly that. In mid-December 2017, Evert—with Reed present and while using 

Reed’s cellphone—contacted a man in Illinois to “take care of [Joey]” and offered 

to pay him $100. Evert and the man discussed the possibility of getting a gun 

from Amazon or Walmart and how Reed would take the man to Joey’s home to 

“stake him out.” After the call, Reed took $100 that Evert had given him and 

wired the money to the man. However, the man later stated he could not “do it” 

and would return the money.

¶4 Around the same time, Reed sent several messages to friends about 

the plot against Joey. Reed told one friend, “I’m going to kill [Joey].” He told 

another friend that “I might be going to persion [sic] for life” and that “I have a 

green light on someone[;] he needs to be gone by Monday.” Reed told a third 

friend, “I have a green light[;] i need a pi[e]ce.”

¶5 After the Illinois man refused to get involved, Kirschner told Reed 

one evening that “you got to go do it. I can’t take it no more.” Reed acquiesced to 

Kirschner’s request and said he would “take care of it.” Reed grabbed a steak 

knife and then drove to Joey’s home.

¶6 Upon arriving at Joey’s home, Reed rang the doorbell, and Joey 

opened the door. The two men had a brief exchange of words, with Reed 

stating: “You mother fucker. Stop messing with my sister.” According to Joey, 

Reed immediately pulled a three-inch kitchen knife from his hip and attempted to 

stab Joey in his midsection. Joey blocked the knife with his right arm and was 

stabbed in his upper forearm. Reed subsequently removed the knife from Joey’s 

arm and raised the knife up in the air, holding the knife in a downward, thrusting 

position. Joey grabbed Reed’s arm, which prevented Reed from stabbing Joey 
No. 2020AP1897-CR

4

again. A brief struggle ensued, but it was quickly broken up when Joey’s 

grandfather came out of the home and yelled at Reed. Joey and Reed released 

each other, and Reed took off running. Although Joey survived the stabbing, he 

suffered permanent nerve damage in his arm.

¶7 Shortly thereafter, Reed was arrested, and he gave a statement to law 

enforcement about the incident. Reed admitted to stabbing Joey, but he claimed 

that he did so only because Joey had started choking him. Later in the interview, 

however, Reed admitted that he went to Joey’s home to stab Joey “but probably 

just in the arm.” Reed claimed that he “just wanted to hurt [Joey,] but he didn’t 

want to kill him.” The State initially charged Reed with one count of first-degree 

recklessly endangering safety with use of a dangerous weapon. After further 

investigation, and upon obtaining additional information, the State filed a new 

criminal complaint charging Reed with one count of conspiracy to commit 

first-degree intentional homicide. The first charge was subsequently dismissed.

¶8 Reed pled no contest to the conspiracy charge, and the circuit court 

ordered a presentence investigation report (PSI), which was filed before the

sentencing hearing. The PSI detailed, among other things, Reed’s criminal 

history, and it recommended that the court sentence Reed to thirteen years’ initial 

confinement followed by six years’ extended supervision.

¶9 At the sentencing hearing, the parties jointly recommended a 

sentence of ten years’ initial confinement followed by ten years’ extended 

supervision. The circuit court, however, rejected the parties’ recommendation. 

The court expressed dismay over how Reed became involved with this plot and 

attacked Joey “for no discernable reason.” The court also discussed Reed’s 

criminal history, noting that Reed had thirteen criminal convictions as an adult and 
No. 2020AP1897-CR

5

four adjudications as a juvenile. Of those offenses, the court observed that thirteen

offenses involved violence. The court also prominently noted the PSI author’s 

comment that he did not disagree with Joey’s belief that Reed should receive the 

“[m]aximum sentence possible.” Ultimately, the court imposed a forty-five-year 

sentence, consisting of twenty-five years’ initial confinement followed by twenty 

years’ extended supervision.

¶10 Reed subsequently filed a postconviction motion, requesting plea 

withdrawal or, alternatively, resentencing or sentence modification. Reed alleged 

that he received ineffective assistance of counsel because his trial 

counsel: (1) failed to inform him of potential trial defenses, such as seeking an 

instruction on self-defense or for a lesser-included offense; (2) failed to seek plea 

withdrawal prior to sentencing despite Reed’s insistence that he did not intend to 

kill Joey; (3) failed to investigate Reed’s “criminal history” that was detailed in 

the PSI; and (4) failed to request an adjournment at sentencing to clarify the PSI 

author’s sentence recommendation. Reed further alleged that the circuit court 

relied on inaccurate and improper information at sentencing and that his 

cooperation after sentencing constituted a new factor.

¶11 The circuit court denied Reed’s motion without an evidentiary

hearing, but it allowed him to amend his motion to allege that his trial counsel 

“strong[-]armed him into a plea.” Thereafter, Reed filed an amended motion, 

alleging that he received ineffective assistance of counsel because his trial counsel 

“overcame Reed’s will not to plead” by insisting that Reed accept the plea 

agreement and because trial counsel failed to adequately consider Reed’s request 

to withdraw his plea before sentencing. The court held a Machner hearing on 

Reed’s amended motion, at which Reed and his trial counsel testified. The court 

later denied Reed’s amended motion in a written decision.
No. 2020AP1897-CR

6

¶12 Reed appeals. Additional facts will be provided as necessary below.

DISCUSSION

I. Plea withdrawal on the basis of ineffective assistance of counsel

¶13 A defendant may withdraw a guilty or no-contest plea after 

sentencing if the defendant shows by clear and convincing evidence that a refusal 

to allow plea withdrawal would result in manifest injustice. State v. Jeninga, 

2019 WI App 14, ¶11, 386 Wis. 2d 336, 925 N.W.2d 574. One way to establish 

manifest injustice is to show that the defendant received ineffective assistance of 

counsel. State v. Dillard, 2014 WI 123, ¶84, 358 Wis. 2d 543, 859 N.W.2d 44.

¶14 To show ineffective assistance of counsel, the defendant must 

prove: (1) that counsel’s performance was deficient; and (2) that the deficient 

performance prejudiced the defense. State v. Sholar, 2018 WI 53, ¶32, 381 

Wis. 2d 560, 912 N.W.2d 89. A court need not address both components of this 

inquiry if the defendant does not make a sufficient showing on one. State v. 

Smith, 2003 WI App 234, ¶15, 268 Wis. 2d 138, 671 N.W.2d 854.

¶15 Under the deficient performance prong, a defendant must 

demonstrate that his or her trial counsel’s performance fell below “an objective 

standard of reasonableness.” State v. Savage, 2020 WI 93, ¶28, 395 Wis. 2d 1, 

951 N.W.2d 838 (citation omitted). “Courts afford great deference to trial 

counsel’s conduct, presuming that it ‘falls within the wide range of reasonable 

professional assistance.’” Id. (citation omitted). “Counsel need not be perfect, 

indeed not even very good, to be constitutionally adequate.” State v. Thiel, 2003 

WI 111, ¶19, 264 Wis. 2d 571, 665 N.W.2d 305 (citation omitted).
No. 2020AP1897-CR

7

¶16 To establish prejudice, “a defendant must show that there is a 

reasonable probability that, but for counsel’s professional errors, the result of the 

proceeding would have been different.” Savage, 395 Wis. 2d 1, ¶32 (quoting 

Strickland v. Washington, 466 U.S. 668, 694 (1984)). In the plea withdrawal 

context, there must be “a reasonable probability that, but for counsel’s errors, [the 

defendant] would not have pleaded guilty and would have insisted on going to 

trial.” State v. Cooper, 2019 WI 73, ¶32, 387 Wis. 2d 439, 929 N.W.2d 192

(citation omitted). A reasonable probability is a probability sufficient to 

undermine confidence in the outcome. Strickland, 466 U.S. at 694. However, “a 

defendant need not prove the outcome would ‘more likely than not’ be different in 

order to establish prejudice in ineffective assistance cases.” Sholar, 381 Wis. 2d 

560, ¶44 (citing Strickland, 466 U.S. at 693).

¶17 Whether a defendant has been denied the effective assistance of 

counsel is a mixed question of law and fact. Savage, 395 Wis. 2d 1, ¶25. We will 

not overturn a circuit court’s findings of fact—including findings regarding the 

factual circumstances of the case and trial counsel’s conduct and strategy—unless 

those findings are clearly erroneous. Id. We review de novo whether counsel 

performed deficiently and, if so, whether counsel’s deficient performance was 

prejudicial to the defense. Id.

 A. Reed’s knowing, intelligent and voluntary plea 

¶18 Reed asserts that he did not knowingly, intelligently and voluntarily 

enter his plea because his trial counsel compelled him to enter his plea and 

because counsel failed to identify and inform Reed of potential defenses to the 
No. 2020AP1897-CR

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offense charged before Reed entered his plea.3 He contends that these actions and 

omissions by counsel constitute deficient performance. We address each of 

Reed’s arguments in turn.

¶19 Reed argues that his trial counsel performed deficiently by

“compelling” him to plead no contest to the conspiracy charge despite Reed 

“insist[ing] he never intended to conspire to kill [Joey].” This argument, however,

wholly ignores the circuit court’s finding that “Reed ... wanted to go forward 

[with his plea].” Based upon evidence produced at the Machner hearing, the court 

recognized “that Reed was, at first, confused about” the intent element of the 

conspiracy charge but that counsel thoroughly explained—and ensured that Reed 

understood—the elements of the crime to which he pled. The court also noted that 

trial counsel took extra time, at Reed’s request, to explain to Reed’s mother how 

the evidence satisfied the elements of the crime. The court found “that Reed 

ultimately agreed that he understood these explanations.” Reed provides no basis 

to conclude that these findings are clearly erroneous; therefore, they must be 

affirmed. See Savage, 395 Wis. 2d 1, ¶25.

¶20 Reed also contends that his trial counsel performed deficiently by

not reasonably considering the relevance of Reed’s version of how the stabbing 

occurred. In particular, he emphasizes his statement to law enforcement that he 

brandished the knife and stabbed Joey only after Joey started choking him. Reed

 

3

 Reed’s arguments regarding whether he knowingly, intelligently and voluntarily 

entered his plea are, at times, disjointed and hard to follow. To the extent we do not address an 

argument related to this claim, we conclude that the argument was not sufficiently developed to 

warrant consideration. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 

1992) (we need not address undeveloped arguments).
No. 2020AP1897-CR

9

argues that this evidence was relevant to showing whether Reed had conspired to 

intentionally kill Joey.

¶21 Again, Reed’s argument is directly contradicted by the circuit 

court’s factual findings and the record. As the court observed, trial counsel 

explained to Reed that his “subjective intent” at the time of the stabbing “would 

not matter to his plea to conspiracy because the crime of conspiracy was already 

committed when [Evert and Reed] phoned the guy in Illinois to commit a murder, 

or when they sent him money to commit a murder.” Indeed, conspiracy to commit 

first-degree intentional homicide is established if: (1) the defendant intended that 

the crime of first-degree intentional homicide be committed; (2) the defendant 

agreed with at least one other person to commit the crime; and (3) one of the 

conspirators performed an act in furtherance of the conspiracy. See State v. 

Peralta, 2011 WI App 81, ¶18, 334 Wis. 2d 159, 800 N.W.2d 512; see also WIS.

STAT. § 939.31; WIS JI—CRIMINAL 570 (2008).

¶22 The State had strong evidence to establish each of these elements 

without relying on Reed’s actions at Joey’s home. Reed explicitly told law 

enforcement that he understood that Evert was seeking to have Joey killed when 

Evert contacted the Illinois man. Therefore, Reed’s wiring of money to the man 

after Evert’s phone call with the man is indicative of Reed’s intent and agreement 

with Evert to have Joey intentionally killed and evidences an act in furtherance of 

the conspiracy. In addition, Reed’s intent and agreement are further buttressed by 

his numerous messages to friends, prior to his actions at Joey’s home, about 

killing Joey and about Reed going to prison for life.

¶23 Accordingly, relying on Reed’s account that he acted in self-defense 

when he stabbed Joey would not have been an effective defense because the 
No. 2020AP1897-CR

10

elements of the crime could be established from conduct that occurred well before 

Reed confronted Joey. Trial counsel thus did not perform deficiently by not 

giving further consideration to Reed’s version of the stabbing.

¶24 Finally, Reed appears to argue that his trial counsel performed 

deficiently by not informing the circuit court that Reed “adamant[ly]” denied ever 

possessing the requisite intent for the offense.4 Reed even suggests that counsel 

knew Reed was being “untruthful”—i.e., lied—during the plea colloquy. This 

argument, yet again, ignores the court’s critical findings that, before entering his 

plea, Reed understood his trial counsel’s explanations regarding the sufficiency of 

the evidence on each element of the crime and that Reed wanted to go forward 

with the plea agreement. Reed provides no basis to disturb these findings. 

Therefore, we can only conclude that counsel did not perform deficiently.

 B. Trial counsel’s decision not to seek plea withdrawal before sentencing

¶25 Reed also argues that his trial counsel performed deficiently by not

seeking to withdraw Reed’s plea because: (1) “Reed continued to deny he ever 

intended to kill anyone”; and (2) Reed asked counsel to withdraw his no-contest 

 

4

 Reed’s argument about whether he actually believed he had the requisite intent is 

largely beside the point because he pled no contest to the State’s charge. By doing so, Reed did

not admit unqualified guilt to that charge, “which is precisely the advantage of entering a 

no[-]contest plea instead of a guilty plea.” See State v. Black, 2001 WI 31, ¶15, 242 Wis. 2d 126, 

624 N.W.2d 363. Reed could therefore plead no contest, even while maintaining that he did not 

possess the requisite intent, “as long as the facts set forth in the complaint met the elements of the 

offense.” See id. A factual basis for a plea exists if an inculpatory inference can be drawn from 

the complaint or from facts admitted to by the defendant even though it may conflict with an 

exculpatory inference and the defendant later maintains that the exculpatory inference is the 

correct one. Id., ¶16. Here, the facts alleged in the complaint gave rise to a reasonable inference 

that Reed possessed the requisite intent, even if Reed maintained that he did not. Accordingly, 

we cannot conclude that Reed’s trial counsel performed deficiently simply because counsel did 

not inform the court of Reed’s personal opinion on whether he possessed the requisite intent.
No. 2020AP1897-CR

11

plea before sentencing. Reed asserts that his trial counsel should have investigated 

the reasons Reed wanted to withdraw his plea and should have attempted to 

withdraw the plea before sentencing.

¶26 Similar to Reed’s earlier arguments, these arguments fail to 

overcome the circuit court’s factual findings. The court found that after extensive

discussions with his trial counsel, Reed understood the intent element of the crime 

to which he pled and wanted to go forward with the plea agreement. The court 

also expressly found that Reed had never asked trial counsel about withdrawing 

his plea before sentencing.

¶27 Reed provides no reason to second-guess the first of these two 

findings, and it therefore must be upheld. Reed argues, however, that the circuit 

court was required to find that he asked to withdraw his plea prior to sentencing 

because trial counsel was unable to definitively recall whether Reed made such a 

request.

¶28 We disagree. The circuit court was not required to credit Reed’s

testimony or find in his favor. See State v. Ayala, 2011 WI App 6, ¶10, 331 

Wis. 2d 171, 793 N.W.2d 511 (“Where the [circuit] court is the finder of fact and 

there is conflicting evidence, the [circuit] court is the ultimate arbiter of the 

credibility of witnesses.”). The court expressly credited trial counsel’s testimony 

that he could not recall Reed requesting plea withdrawal and that counsel normally 

takes steps to address a client’s plea withdrawal request. In contrast, the court 

observed that Reed’s conduct and statements “throughout these entire proceedings, 

most especially at the [Machner] hearing ..., demonstrate that he is a completely 

incredible, that is unbelievable, witness.” The court noted numerous instances in 

which Reed admitted he lied during the proceedings and concluded “there is 
No. 2020AP1897-CR

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absolutely no reason to believe any of the things which Reed is saying now.” 

Based on the court’s credibility determinations and trial counsel’s testimony, the 

court could infer that Reed never requested to withdraw his plea before 

sentencing. Thus, the court’s finding in that regard is not clearly erroneous.

¶29 In sum, because the circuit court’s findings—i.e., that Reed 

understood and agreed to go forward with the plea agreement and never requested 

to withdraw his plea before sentencing—are not clearly erroneous, Reed has failed 

to show that his trial counsel performed deficiently by not seeking plea withdrawal 

before Reed’s sentencing.

II. The right to an evidentiary hearing on a postconviction motion

¶30 A postconviction motion alleging ineffective assistance of counsel 

does not automatically entitle a defendant to a Machner hearing. State v. Phillips, 

2009 WI App 179, ¶17, 322 Wis. 2d 576, 778 N.W.2d 157. Indeed, a circuit court 

need not hold a Machner hearing if the defendant fails to allege sufficient facts in 

his or her motion, if the defendant presents only conclusory allegations or 

subjective opinions, or if the record conclusively demonstrates that the defendant

is not entitled to relief. Phillips, 322 Wis. 2d 576, ¶17. “Whether a motion 

alleges facts which, if true, would entitle a defendant to relief is a question of law 

that we review de novo.” State v. Bentley, 201 Wis. 2d 303, 310, 548 N.W.2d 50 

(1996).

¶31 Reed alleged in his original postconviction motion that he received 

constitutionally ineffective assistance of counsel because his trial counsel failed to 

investigate his “criminal history” in Illinois and failed to inform the circuit court 

that the “criminal history” described in the PSI did not “conclusively determine” 

whether Reed had been convicted of felonies or misdemeanors in Illinois. Reed 
No. 2020AP1897-CR

13

also alleged in an affidavit that he told his trial counsel he did not think he had 

been convicted of a number of the offenses identified in the PSI. The court 

rejected this claim prior to the Machner hearing. Reed renews these allegations 

and arguments on appeal, arguing that he received ineffective assistance of 

counsel because trial counsel failed to clarify how the offenses in the PSI were 

resolved or whether they ended in convictions.

5

¶32 Reed’s allegations in his original postconviction motion were 

insufficient to warrant a hearing. 

[A] defendant who alleges a failure to investigate on the 

part of his or her counsel must allege with specificity what 

the investigation would have revealed and how it would 

have altered the outcome of the case. A defendant must 

base a challenge to counsel’s representation on more than 

speculation. 

State v. Leighton, 2000 WI App 156, ¶38, 237 Wis. 2d 709, 616 N.W.2d 126

(citation omitted). Here, Reed has not alleged what his trial counsel would have 

discovered had counsel investigated Reed’s criminal history in Illinois. Therefore, 

Reed can only speculate as to whether counsel’s lack of investigation prejudiced 

Reed’s defense, which is insufficient—as a matter of law—to entitle Reed to 

relief. See id.

 

5

 Reed develops two of his ineffective assistance of counsel claims—specifically, his 

claims that counsel failed to investigate his criminal history and failed to seek clarification 

regarding the sentence recommendation in the PSI—as if the circuit court considered and 

addressed them after the Machner hearing. We note, however, that the Machner hearing was 

limited to the issues raised in Reed’s amended postconviction motion. We therefore construe 

Reed’s arguments to be that he should have also received a Machner hearing on these ineffective 

assistance of counsel claims.
No. 2020AP1897-CR

14

¶33 Reed also alleged in his original postconviction motion that his trial 

counsel was ineffective for failing to request an adjournment of the sentencing 

hearing to investigate and seek clarification regarding an “unclear” and 

“ambiguous” sentence recommendation in the PSI. Reed asserted that this 

deficient performance was prejudicial because the circuit court relied on the 

“ambiguous recommendation.” Like the prior claim, the court rejected this 

argument before the Machner hearing.

¶34 Although Reed did not explain in his postconviction motion how the

sentence recommendation was unclear, he identifies on appeal two statements that 

he believes are contradictory. First, the PSI stated that “[Joey] ... believes that 

Mr. Reed should be sentenced to the [m]aximum sentence possible and this writer 

does not disagree with [him], as it appears to this writer that Mr. Reed conspired to 

kill [Joey] and then he attempted to carry out that plan to kill [him].” Second, the 

PSI stated that “[t]he Department of Corrections [DOC] respectfully recommends 

the [c]ourt sentence the defendant to 13 years in the Wisconsin State Prison 

System, followed by 6 years of extended supervision.”

¶35 Despite these two statements, the record demonstrates that Reed is 

not entitled to relief. At the sentencing hearing, the circuit court accurately read 

the amount of confinement recommended in the PSI, noting that “[t]he PSI 

suggests 13 years in prison.” However, the court found it “very interesting” that 

the PSI author agreed with Joey’s recommendation for the “[m]aximum sentence 

possible.” The court observed that the PSI author was “required to follow [the 

DOC’s Bifurcated Sentence Recommendation G]rid,” and the court inferred that, 

by agreeing with Joey’s recommendation, the PSI author “is saying much, much 

more time is actually appropriate.” The court nonetheless recognized:

“Ultimately, the [sentencing] decision and responsibility is mine.”
No. 2020AP1897-CR

15

¶36 Under these circumstances, it would have been reasonable for an 

attorney to not seek an adjournment of the sentencing hearing to investigate the 

PSI author’s comments. The circuit court plainly understood the DOC’s formal 

sentence recommendation, which is demonstrated by the court’s recitation of that 

recommendation on the record. Although the court inferred that the PSI author 

was suggesting a lengthier sentence—an inference that does not seem

unreasonable on its face—the court also recognized that it was the ultimate 

decision maker on the matter. Accordingly, counsel’s performance did not fall 

below an objective standard of reasonableness, and the record therefore 

conclusively demonstrates that Reed is not entitled to relief or a Machner hearing. 

See Phillips, 322 Wis. 2d 576, ¶17.

¶37 Reed next argues that he was entitled to a Machner hearing on his 

claim that his trial counsel failed to inform him before his plea that he could seek

an instruction at trial for a lesser-included offense. Reed contends that such an 

instruction was a viable defense because the jury could have acquitted him of 

conspiracy to commit first-degree intentional homicide but convicted him of a 

lesser conspiracy offense, such as “conspiracy to injure or batter.” In Reed’s 

original postconviction motion, he alleged that he could have been convicted of

“first-degree reckless endangering safety” or “first[-] and second[-]degree reckless 

injury.”

¶38 As an initial matter, we note that Reed apparently concedes in his 

appellate brief that he would not have been entitled to submission of the 

lesser-included charges advanced in his original postconviction motion. As to the 

purported lesser conspiracy offenses, because Reed did not raise an argument 

regarding such offenses below, he has forfeited his claim on appeal. See Schill v. 
No. 2020AP1897-CR

16

Wisconsin Rapids Sch. Dist., 2010 WI 86, ¶45 n.21, 327 Wis. 2d 572, 786 

N.W.2d 177 (we may deem issues forfeited if not preserved at the circuit court).

¶39 Regardless, Reed’s allegations that he could have been convicted of 

a lesser-included offense are conclusory and undeveloped. In particular, Reed 

fails to show how any offense identified in his postconviction motion (or his 

appellate briefing) is a lesser-include offense of conspiracy to commit first-degree 

intentional homicide. To determine whether a crime is a lesser-included offense 

of another, Wisconsin courts employ an “elements-only” test. State v. Jackson, 

2011 WI App 63, ¶11, 333 Wis. 2d 665, 799 N.W.2d 461. Under the 

“elements-only” test, “[a] lesser included offense may not include an additional 

element beyond those essential for conviction of the crime charged.” Id. 

WISCONSIN STAT. § 939.66 also provides additional circumstances in which an 

offense may be a lesser-included offense of another crime.

¶40 Reed has made no attempt—either in his postconviction motion or in 

his appellate briefing—to apply the “elements-only” test or to identify a provision 

under WIS. STAT. § 939.66 that provides a lesser-included offense to conspiracy to 

commit first-degree intentional homicide. Although Reed identified some case 

law in his motion regarding lesser-included offenses to first-degree intentional 

homicide, he did not analogize those cases to the conspiracy offense at issue in 

this case or explain how those cases would otherwise apply. Reed’s allegations 

that he could have been convicted of a lesser-included offense are therefore 

conclusory and undeveloped. Accordingly, the circuit court was not required to 

hold a Machner hearing to address Reed’s conclusory allegations. See Phillips, 

322 Wis. 2d 576, ¶17.
No. 2020AP1897-CR

17

¶41 Finally, Reed argues that his counsel performed deficiently by 

failing to correct the circuit court’s misunderstanding that the crime was 

“completely and totally [Reed’s] fault.” The record, however, conclusively 

establishes that the court was well aware of how other individuals were culpable 

as well. The court immediately acknowledged that the crime was “[Kirschner’s 

and Evert’s] fault too” and that “[Kirschner is] the driving force here.” As a 

result, Reed was not entitled to a Machner hearing on this claim because he 

cannot show any deficient performance or prejudice.

III. Improper sentencing factors

¶42 Our review of a circuit court’s sentencing decision is limited to 

determining whether the court erroneously exercised its discretion. State v. 

Gallion, 2004 WI 42, ¶17, 270 Wis. 2d 535, 678 N.W.2d 197. A court 

erroneously exercises its sentencing discretion by relying on “clearly irrelevant or 

improper factors.” State v. Williams, 2018 WI 59, ¶45, 381 Wis. 2d 661, 912 

N.W.2d 373 (citation omitted). To show reliance on an improper factor, a

defendant must prove, by clear and convincing evidence, that the factor was 

improper and that the court actually relied on it. Id. When sentencing a 

defendant, a circuit court cannot rely on inaccurate information. Id., ¶46. 

Information is “inaccurate” if it is “extensively and materially false,” not simply 

incomplete or disputed. See State v. Travis, 2013 WI 38, ¶¶17-18, 347 Wis. 2d 

142, 832 N.W.2d 491.

¶43 Reed argues that the circuit court relied on an improper factor by 

“assum[ing he] had been convicted of numerous felonies when the ambiguous 

information provided in the PSI didn’t support this assumption.” He contends that 
No. 2020AP1897-CR

18

the court should have further investigated his criminal history, “particularly when 

it appears certain arrests, ultimately, led to no convictions whatsoever.”

¶44 Although Reed criticizes the circuit court’s general reliance on his 

criminal history, he has not identified any specific information that was inaccurate 

in the PSI or in the court’s discussion of his criminal history. Reed also has not 

explained which of the cases noted in the PSI involved only an arrest and not a 

conviction, as he contends. Even Reed’s argument seems to recognize that the 

information in the PSI might be better characterized as “ambiguous,” unclear, or 

vague instead of inaccurate. Indeed, the PSI expressly stated that the dispositions

of some of the cases were “[u]nknown” or “not reported.” Reed may disagree 

with the court’s understanding of his criminal history, but he has not put forth any 

evidence—and certainly not clear and convincing evidence—to show that the 

court’s understanding was inaccurate—much less extensively and materially so. 

Accordingly, Reed has failed to meet his burden of proving that the court relied on 

inaccurate information regarding his criminal history.

¶45 In addition, to the extent Reed renews his arguments that the circuit 

court should have held an evidentiary hearing on his claim that the court relied on 

inaccurate information about his criminal history, we disagree. Reed alleged in his 

postconviction motion that the PSI’s discussion of the number and type of 

convictions in Illinois “is apparently inaccurate and attempts to clarify his record 

[have] not yet concluded.” (Emphasis added.) Again, Reed did not identify what 

information was purportedly inaccurate. Reed’s allegations were therefore 

conclusory and undeveloped. As such, the court did not erroneously exercise its 

discretion by denying Reed’s request for an evidentiary hearing. See State v. 

Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433 (“[I]f the 
No. 2020AP1897-CR

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[postconviction] motion ... presents only conclusory allegations, ... the circuit 

court has the discretion to grant or deny a hearing.”).

¶46 Reed also argues that the circuit court “improperly and inaccurately 

interpreted” the sentence recommendation of the PSI author. He contends that the 

PSI author recommended only the maximum amount of confinement under the 

DOC recommendation grid, not the statutory maximum sentence for the offense 

charged. As noted earlier, however, the court understood the DOC’s formal 

sentence recommendation in the PSI, which was thirteen years’ initial confinement 

and six years’ extended supervision. Although the court inferred that the PSI 

author was personally recommending a lengthier sentence by agreeing with Joey’s 

recommendation, Reed has not sufficiently shown—i.e., by clear and convincing 

evidence—that the court’s interpretation was manifestly inaccurate or improper.

¶47 Reed directs our attention to emails between his appellate counsel 

and the PSI author, but he fails to explain how those later-written emails 

“establish[] the court’s interpretation was inaccurate.” Indeed, Reed does not 

quote or highlight any of the statements made in the PSI author’s emails. Reed’s 

arguments are therefore underdeveloped, and we will not abandon our neutrality to 

develop Reed’s arguments for him. See Industrial Risk Insurers v. American 

Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82. 

Even if we could, our review of the emails does not reveal any clear and 

convincing evidence that the circuit court’s inference regarding the PSI author’s 

comments was extensively and materially false.

¶48 Reed next argues that the circuit court relied on an improper factor

by comparing the DOC’s sentence recommendation in Reed’s case to past 

sentence recommendations by the DOC. Reed, however, fails to cite any legal 
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authority in support of his proposition that a circuit court cannot consider its 

experience in its sentencing decisions. Thus, we need not address this argument. 

See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (we 

need not address undeveloped arguments with no supporting legal authority). 

Regardless, a circuit court is not prohibited from considering its criminal 

sentencing experience when determining whether a certain sentence is appropriate. 

See State v. Ogden, 199 Wis. 2d 566, 573, 544 N.W.2d 574 (1996).

IV. New Factor

¶49 In determining whether to modify a sentence on the basis of a new 

factor, a circuit court considers: (1) whether the defendant has shown the 

existence of a new factor by clear and convincing evidence; and (2) whether the 

new factor justifies modification of the sentence. State v. Harbor, 2011 WI 28, 

¶¶36-37, 333 Wis. 2d 53, 797 N.W.2d 828. If a court determines that the facts do 

not constitute a new factor, the court need not address the second inquiry. 

Id., ¶38. A “new factor” is defined as 

a fact or set of facts highly relevant to the imposition of 

sentence, but not known to the trial judge at the time of 

original sentencing, either because it was not then in 

existence or because, even though it was then in existence, 

it was unknowingly overlooked by all of the parties. 

Id., ¶40 (citation omitted). Whether a new factor exists is a question of law that 

we review de novo. Id., ¶33.

¶50 Reed argues that his “full cooperation” in the State’s prosecution of 

Evert is a new factor. In particular, Reed contends that the circuit court did not 

know at the time of sentencing that he would reject Evert’s request that Reed not 
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testify in Evert’s criminal case involving conspiracy to commit first-degree 

intentional homicide. Reed’s argument is misplaced.

¶51 Reed’s cooperation with law enforcement and his anticipated 

assistance were well known at the time of sentencing. The State informed the 

circuit court at both the plea and sentencing hearings that Reed agreed to 

cooperate with law enforcement as part of his plea agreement. At the sentencing 

hearing, the State specifically stated that Reed “did meet with law enforcement. 

He did cooperate, and he’s agreed to give testimony against the others as part of 

this agreement here.” The court subsequently acknowledged Reed’s cooperation 

during its sentencing remarks.

¶52 Although the circuit court may not have specifically known at 

sentencing that Reed would reject Evert’s request not to testify, the court 

undoubtedly knew that Reed would be likely providing some form of assistance to 

law enforcement in the future. Moreover, the fact that Reed might face pressure 

not to testify and that Reed would resist that pressure could be reasonably 

expected, especially given the gravity of Evert’s offense and Reed’s obligation 

under the plea agreement to testify. Thus, Reed’s assistance was neither unknown 

nor “highly relevant” to the imposition of his sentence because the court 

considered Reed’s cooperation and factored it into Reed’s sentence accordingly. 

See id., ¶40. For those reasons, Reed has failed to establish the existence of a new 

factor.

By the Court.—Judgment and orders affirmed.

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

RULE 809.23(1)(b)5.