COURT OF APPEALS

DECISION

DATED AND FILED

February 6, 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. 2022AP1663-CR Cir. Ct. No. 2018CF1940

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

WALTER LAMONT FISHER,

DEFENDANT-APPELLANT.

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

Milwaukee County: DAVID A. FEISS, Judge. Affirmed. 

Before White, C.J., Donald, P.J., and Geenen, J.

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. 2022AP1663-CR

2

¶1 PER CURIAM. Walter Lamont Fisher appeals from a judgment of 

conviction for multiple offenses related to a shooting incident involving his former 

girlfriend and from an order of the circuit court denying Fisher’s postconviction 

motion for a new trial or resentencing without a hearing. On appeal, he maintains 

that he is entitled to a new trial or resentencing, and he argues that his 

constitutional right to a speedy trial was violated, newly-discovered evidence in 

the form of a recantation from his former girlfriend entitles him to a new trial, and 

he is entitled to resentencing based on a new factor. Upon review, we affirm.

BACKGROUND

¶2 On April 18, 2018, police responded to a call of shots fired at a 

residence at 804 West Somers Street in Milwaukee. When police arrived, Jana

reported that Fisher, Jana’s former boyfriend with whom she shared a child, came 

to her residence looking for Kyle, Jana’s current boyfriend.1 Jana stated that 

Fisher forced his way inside, pointed a gun at Jana’s head, and threatened to kill 

her if she did not get out of the way. She further stated that after Fisher went 

inside, she heard shots being fired and she ran from the residence in her “bra and 

panties” to a neighbor’s house to call the police. Kyle reported that Fisher showed 

up at the residence that night, he hid from Fisher in the bathroom, and he took 

cover in the bathtub when Fisher began firing shots through the bathroom door. 

Jana’s seven-year-old son further provided that he was playing video games that 

night when he saw Fisher in the residence, and Fisher “just started shooting” at the 

bathroom door. Jana’s son stated that he hid in the closet. 

 

1

 We refer to the victims in this matter using pseudonyms. See WIS. STAT.

RULE 809.19(1)(g) (2021-22). All references to the Wisconsin Statutes are to the 2021-22 

version unless otherwise noted.
No. 2022AP1663-CR

3

¶3 Fisher was charged with one count of attempted first-degree 

intentional homicide with use of a dangerous weapon, one count of first-degree 

recklessly endangering safety with use of a dangerous weapon with a domestic 

abuse assessment, one count of possession of a firearm by a felon, one count of 

felony bail jumping, and one count of misdemeanor bail jumping with a domestic 

abuse assessment for the events of that night. 

¶4 Fisher’s first trial in October 2018 resulted in a mistrial. Fisher 

subsequently entered a demand for a speedy trial, and the case was rescheduled for 

a second trial in January 2019. 

¶5 When the case was called for trial in January 2019, the State 

informed the trial court that it was having difficulties locating its witnesses and 

“would need to ask for the case to be passed for a matter of minutes.” The trial 

court passed the case, and when the case was recalled, the State indicated that the 

witnesses were available and it was now ready to proceed; however, the trial court

rescheduled the trial for April 8, 2019. 

¶6 In deciding whether to move forward with the trial or reschedule, the 

State noted that the first trial “took us five days” and the courthouse was going to 

be closed the next two days. The State also added that Fisher was currently 

serving a sentence on other charges and he would be in custody on those charges 

whether the trial moved forward or was rescheduled. The trial court similarly

observed that the courthouse would be closed at the end of the week, and the 

closure of the courthouse would not provide enough time to finish the trial that 

week. Thus, the trial court rescheduled the trial for April 8, 2019. 
No. 2022AP1663-CR

4

¶7 At the final pretrial for the April 8, 2019 trial date, the defense 

requested to have the trial rescheduled in order to accommodate a trial date for a 

different case. The trial was again rescheduled for June 3, 2019. 

¶8 When the case was called for trial on June 3, 2019, the State 

informed the trial court that it was unable to locate its witnesses and requested that 

the trial be adjourned. The trial court granted “a final adjournment” saying, “[a]t 

this point given the very, very serious nature of these allegations and given the fact 

that Mr. Fisher is in custody on another matter I don’t believe that an adjournment 

to a fall trial date would on its face not seriously violate his due process speedy 

disposition.” 

¶9 The case was rescheduled for trial on September 16, 2019. 

However, due to court congestion, the trial court was unavailable on

September 16, 2019, and the case was rescheduled for trial on January 13, 2020. 

¶10 Fisher moved to dismiss the charges based on a violation of his right 

to a speedy trial. The trial court denied his motion and stated, “[W]e’re coming up 

on it’s going to be longer than a year since his last trial. During this time period, 

there was one request by the defense to postpone the case. There had been two 

requests by the State, and then the others are due to court congestion.” Thus, the 

trial court stated that Fisher’s motion would be revisited if the case was unable to 

proceed at the next trial date. 

¶11 Fisher ultimately stood trial in January 2020. Jana, Kyle, and Jana’s 

son, along with other witnesses presented by the State, testified to the events of 

that night. The State further presented photographs of holes in the bathroom door 

and bathtub, and wood fragments and bullets in the bathroom. 
No. 2022AP1663-CR

5

¶12 Following the jury trial, Fisher was convicted of one count of firstdegree recklessly endangering safety with use of a dangerous weapon, one count

of possession of a firearm by a felon, one count of felony bail jumping, and one

count of misdemeanor bail jumping with domestic abuse assessments. Fisher was 

given a total sentence of nineteen years of imprisonment, bifurcated as twelve 

years of initial confinement and seven years of extended supervision. 

¶13 Fisher filed a motion for postconviction relief in which he argued 

that he was entitled to a new trial or resentencing. Specifically, he argued that his 

constitutional right to a speedy trial was violated, he had newly-discovered 

evidence in the form of an affidavit from Jana recanting her former statement that 

she saw Fisher with a firearm that night, and Jana’s affidavit presents a new factor 

warranting resentencing. 

¶14 The trial court denied Fisher’s motion without a hearing. The trial 

court rejected Fisher’s argument that his constitutional right to a speedy trial was 

violated “for the reasons set forth on the record at the November 4, 2019 motion 

hearing.” The trial court further rejected Fisher’s argument for a new trial based 

on newly-discovered evidence, and it called Jana’s affidavit “plainly deficient” 

because it was based on “pure speculation” and uncorroborated. The trial court 

also found that there was no probability of a different result because of the other 

evidence introduced at trial that Fisher had a firearm. The trial court also rejected 
No. 2022AP1663-CR

6

Fisher’s argument that a new factor entitled him to resentencing because what Jana 

remembered seeing was not relevant for sentencing purposes.2 

¶15 Fisher now appeals. Additional relevant facts will be set forth as 

necessary.

DISCUSSION

¶16 On appeal, Fisher argues that the trial court erroneously denied his 

postconviction motion and that he is entitled to a new trial or resentencing. He 

argues that his constitutional right to a speedy trial was violated, and he argues 

that an affidavit from Jana recanting her previous statement that she saw Fisher 

with a firearm that night is newly-discovered evidence entitling him to a new trial 

or a new factor that warrants resentencing. We address each argument in turn.

I. Speedy Trial Violation

¶17 “Both the federal and state constitutions guarantee a criminal 

defendant the right to a prompt resolution of criminal charges made against him 

[or her] by the [S]tate.” State v. Borhegyi, 222 Wis. 2d 506, 509, 588 N.W.2d 89 

(Ct. App. 1998). We use the four-part test set forth in Barker v. Wingo, 407 U.S. 

514 (1972), to determine whether a defendant’s constitutional right to a speedy 

trial has been violated. State v. Urdahl, 2005 WI App 191, ¶11, 286 Wis. 2d 476, 

704 N.W.2d 324. “We consider (1) the length of delay; (2) the reason for the 

delay; (3) the defendant’s assertion of his right; and (4) prejudice to the 

 

2

 In denying Fisher’s claim, the trial court also added, “The defendant also seeks 

resentencing based on the affidavit of [Jana]. In pleading this claim, the defendant conflates the 

McCallum standard for a new trial based on newly discovered evidence with a new factor, which 

would be grounds for sentencing modification (not resentencing).” 
No. 2022AP1663-CR

7

defendant.” Id. “[T]he test requires us to consider the totality of circumstances 

that exist in each specific case to determine if a speedy trial violation has 

occurred.” State v. Provost, 2020 WI App 21, ¶26, 392 Wis. 2d 262, 944 N.W.2d 

23. 

¶18 Whether a defendant’s constitutional right to a speedy trial has been 

violated is a question of law that this court reviews de novo. Urdahl, 286 Wis. 2d 

476, ¶10. 

¶19 Assuming that the relevant time period begins when Fisher entered a 

speedy trial demand on October 22, 2018, the State does not dispute that the length 

of the delay in this case exceeded one year and is therefore presumptively 

prejudicial. See id., ¶12 (“Generally, a post-accusation delay approaching one 

year is considered to be presumptively prejudicial.”). The State also does not 

dispute that Fisher asserted his right to a speedy trial in this case shortly after his 

first trial on October 22, 2018. Thus, we focus our analysis on the second and 

fourth factors: the reason for the delay and prejudice to Fisher.

¶20 Under the second factor, Fisher attributes the delays in his trial to the 

State and argues that “this case is government negligence at minimum, if not 

intentional delay.” However, contrary to Fisher’s assertion, the State was not

responsible for each delay in his trial, and those delays that are attributable to the 

State are not intentional delays that require us to assign heavy weight to them. 

¶21 Beginning with the first time Fisher’s retrial was scheduled in 

January 2019, the State requested that the case be passed for “a matter of minutes” 

to allow the State to locate its witnesses. By the time the case was recalled, the 

State had located its witnesses and was prepared to proceed. However, after a 

discussion with the trial court about how long the trial would last and the impact 
No. 2022AP1663-CR

8

that a courthouse closure would have on the ability to finish the trial, the trial was 

rescheduled for April 2019. This is hardly an intentional delay on the State’s part, 

and therefore, we do not assign heavy weight against the State for this delay. See 

id., ¶26.

¶22 Turning to the second time that Fisher’s trial was rescheduled in 

April 2019, the record is clear that the defense was responsible for requesting the 

adjournment because the defense had a scheduling conflict with the April 2019 

trial date. “[I]f the delay is caused by the defendant, it is not counted.” Id. Thus, 

we do not count this delay, and we reject Fisher’s characterization that this delay 

is somehow attributable to the State. 

¶23 At the next scheduled trial date in June 2019, the State made its first 

request to have the trial rescheduled because it was unable to locate its witnesses. 

However, despite Fisher’s characterization that the State failed to prepare for trial, 

we consider that this delay was not due to a lack of effort put forth by the State to 

be prepared for trial. In fact, as the State described on the record, Kyle was in 

custody on another matter but was not produced, despite a request by the State to 

have him produced. The State was also unable to locate Jana and her son because 

“the house that she’d given us as her last address is vacant.” 

¶24 The record clearly indicates that the State did not request the 

adjournment for an intentional lack of preparation on its part. Thus, while we 

attribute this delay to the State, we reject Fisher’s argument to assign heavy weight 

against the State for this delay as an intentional and deliberate attempt to delay his 

trial. See id. (“A deliberate attempt by the government to delay the trial in order to 

hamper the defense is weighted heavily against the State[.]”); see also State v. 
No. 2022AP1663-CR

9

Ziegenhagen, 73 Wis. 2d 656, 668, 245 N.W.2d 656 (1976) (noting that 

unavailability of a necessary witness is excusable).

¶25 Fisher’s case was again scheduled for trial in September 2019; 

however, the trial court was unable to hold the trial at that time due to court 

congestion. “[D]elays caused by the government’s negligence or overcrowded 

courts, though still counted, are weighted less heavily.” Urdahl, 286 Wis. 2d 476, 

¶26. Consequently, this delay in Fisher’s trial, while attributable to the State, is 

not heavily weighted against the State. 

¶26 Next, we consider any prejudice to Fisher under the fourth factor. 

“Courts consider the element of prejudice with reference to the three interests that 

the right to a speedy trial protects: prevention of oppressive pretrial incarceration, 

prevention of anxiety and concern by the accused, and prevention of impairment 

of defense.”3 Id., ¶34. 

¶27 In this case, Fisher asserts that he was prejudiced because of the 

anxiety and concern that he suffered from having an unresolved criminal case. 

“However, without more than the bare fact of unresolved charges—which exists in 

every criminal case—we view the prejudice to the second interest as minimal.” 

Id., ¶35. 

¶28 Fisher further asserts that his defense would be impaired due to “a 

witness that goes missing due to delay[.]” Initially, we note that Fisher has not 

 

3

 Fisher does not make an argument based on oppressive pretrial incarceration. As stated 

repeatedly throughout these proceedings, Fisher was in custody on other charges, and his 

incarceration during the pendency of these proceedings was not the result of a delay in his trial on 

the charges underlying this case. We, therefore, do not discuss this interest in our analysis. See 

State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).
No. 2022AP1663-CR

10

actually provided that his defense was impaired because any of the witnesses went 

missing during the delay that occurred from the first trial in October 2018 to the 

retrial in January 2020. See Provost, 392 Wis. 2d 262, ¶47 (addressing an 

argument that the defense was impaired due to the death of a witness during the 

delay). Consequently, we consider any impairment asserted by Fisher due to 

missing witnesses to be highly speculative and largely theoretical. Moreover, we 

note that this case was a retrial, and the original trial from October 2018 preserved 

any witness testimony that would otherwise have been lost with the passage of 

time. Thus, we consider that any prejudice Fisher suffered as a result of an 

impaired defense is, at best, minimal. 

¶29 Ultimately, balancing and considering the factors in total, we 

conclude that Fisher’s constitutional right to a speedy trial was not violated. See

id., ¶26. While the State does not dispute that the delay is presumptively 

prejudicial and Fisher asserted his right to a speedy trial, Fisher has shown only 

minimal prejudice that does not outweigh the delays in his trial that were due in 

large part to the court’s calendar and the unavailability of witnesses, which is not 

heavily weighted against the State.

II. Newly-Discovered Evidence

¶30 A defendant must prove four criteria to satisfy the test for newlydiscovered evidence: “(1) the evidence was discovered after conviction; (2) the 

defendant was not negligent in seeking the evidence; (3) the evidence is material 

to an issue in the case; and (4) the evidence is not merely cumulative.” State v. 

Plude, 2008 WI 58, ¶32, 310 Wis. 2d 28, 750 N.W.2d 42 (citation omitted). 

¶31 “If the defendant is able to prove all four of these criteria, then it 

must be determined whether a reasonable probability exists that had the jury heard
No. 2022AP1663-CR

11

the newly-discovered evidence, it would have had a reasonable doubt as to the 

defendant’s guilt.” Id. “A reasonable probability of a different outcome exists if 

‘there is a reasonable probability that a jury, looking at both the [old evidence] and 

the [new evidence], would have a reasonable doubt as to the defendant’s guilt.” 

State v. Love, 2005 WI 116, ¶44, 284 Wis. 2d 111, 700 N.W.2d 62 (alteration in 

original; citation omitted).

¶32 When a defendant claims newly-discovered evidence based upon a 

recantation, the claim “also requires corroboration of the recantation with 

additional newly discovered evidence.” State v. McAlister, 2018 WI 34, ¶33, 380 

Wis. 2d 684, 911 N.W.2d 77. Corroboration requires that “(1) there is a feasible 

motive for the initial false statement; and, (2) there are circumstantial guarantees 

of the trustworthiness of the recantation.” Id. (citation omitted).

¶33 “The decision to grant or deny a motion for a new trial based on 

newly discovered evidence is committed to the circuit court’s discretion,” and 

“[w]e review the circuit court’s determination for an erroneous exercise of 

discretion.” State v. Avery, 2013 WI 13, ¶22, 345 Wis. 2d 407, 826 N.W.2d 60.

¶34 Additionally, we review de novo “whether the motion on its face 

alleges sufficient material facts that, if true, would entitle the defendant to relief.” 

State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433. However, “if 

the motion does not raise facts sufficient to entitle the movant to relief, or presents 

only conclusory allegations, or if the record conclusively demonstrates that the 

defendant is not entitled to relief,” we review the trial court’s decision for an 

erroneous exercise of discretion. Id.

¶35 In this case, Fisher claims that an affidavit from Jana recanting her 

previous statements indicating that she saw Fisher with a firearm is newly-
No. 2022AP1663-CR

12

discovered evidence that calls into question his conviction because his conviction 

requires a finding that he had a firearm that night. In the affidavit, Jana states, “I 

never saw a gun in Walter Lamont Fisher’s hands[.]” She further states, “That 

because I heard what sounded like two different gun shots, because Walter 

Lamont Fisher was mad, and because he pointed towards me angrily, I assumed 

that Walter Lamont Fisher had a gun.” 

¶36 In short, Fisher’s claim of newly-discovered evidence fails, and the

trial court did not erroneously deny Fisher’s postconviction motion without a 

hearing. Overall, we conclude that Fisher has failed to provide other newlydiscovered evidence to corroborate Jana’s affidavit recanting her prior statement to 

police and testimony in which Jana stated that she saw Fisher holding a firearm 

that night. He also fails to provide any feasible motive why Jana initially told 

police and testified in two trials that she saw Fisher with a firearm that night if she 

in fact did not.4

¶37 Fisher contends that Jana “felt bad about her previously incorrect 

statements” and “wishes to recant her incorrect statements to police and at trial to 

clarify that she never saw a gun in Fisher’s hands[.]” He further provides that Jana 

“has multiple motives for the false statement, but the main one was fear of 

perjury.” He adds that “[a]nger was certainly a factor” and “there is still romance 

and passion involved.” As to circumstantial guarantees of trustworthiness, Fisher 

 

4

 However, we also note that the trial court found that Jana’s affidavit does not call into 

question whether Fisher possessed a firearm that night because Jana still states that she assumed 

Fisher possessed a firearm based on all the information available to her that night, and Jana’s new 

found assumption does not eviscerate the abundance of other evidence introduced at trial 

indicating that Fisher did indeed possess a firearm that night. We agree. Thus, there is also no 

reasonable probability of a different result.
No. 2022AP1663-CR

13

asserts that Jana “was building towards this” because each retelling of the events 

of that night became “more and more favorable to Fisher.” We reject Fisher’s 

argument that this satisfies the corroboration requirement.

¶38 A full review of Jana’s affidavit shows that it is entirely silent as to a 

reason for her previous statement to police and testimony in two trials that she saw 

Fisher with a firearm. Instead, Fisher’s explanation appears to be purely 

speculative and completely of his own making. At no point in her affidavit does 

Jana state that she feels bad for making her previous statements, that she “has 

multiple motives” for making false statements or for providing a recantation 

affidavit now, that she feared the consequences of committing perjury, or that 

anger, romance, or passion motivated her previous statements that she saw Fisher 

with a firearm. Therefore, we conclude that Jana’s affidavit lacks a feasible 

motive for the initial false statement as required for the corroboration requirement 

of a recantation. See McAlister, 380 Wis. 2d 684, ¶33.

¶39 Additionally, Fisher’s interpretation of the differences in Jana’s 

statement and trial testimony—that Jana was building towards a recantation—fails 

to establish that Jana’s current statement in her affidavit is in any way more 

credible than any of her previous statements such that it has circumstantial 

guarantees of trustworthiness. See State v. McCallum, 208 Wis. 2d 463, 477-78, 

561 N.W.2d 707 (1997) (identifying circumstantial guarantees of trustworthiness 

for a recantation).

¶40 Overall, we conclude that the trial court did not erroneously deny 

Fisher’s claim of newly-discovered evidence because Fisher failed to satisfy the 

corroboration requirement for Jana’s affidavit.
No. 2022AP1663-CR

14

III. Sentence Modification Based on a New Factor

¶41 A defendant may seek a modification of his or her sentence “upon 

the defendant’s showing of a ‘new factor.’”5 State v. Harbor, 2011 WI 28, ¶35, 

333 Wis. 2d 53, 797 N.W.2d 828 (citation omitted). To do so, the defendant first 

“has the burden to demonstrate by clear and convincing evidence the existence of 

a new factor.” Id., ¶36. Then, “if a new factor is present, the circuit court 

determines whether that new factor justifies modification of the sentence.” Id., 

¶37. “Thus, to prevail, the defendant must demonstrate both the existence of a 

new factor and that the new factor justifies modification of the sentence.” Id., ¶38.

¶42 The definition of a new factor is well-settled 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 ... it was unknowingly overlooked by all of the parties.”6 Rosado v. 

State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975).

¶43 “Whether a fact or set of facts presented by the defendant constitutes 

a ‘new factor’ is a question of law” that we review independently. Harbor, 333 

 

5

 Fisher argues that he is entitled to resentencing based on a new factor. However, a 

defendant is entitled to sentence modification, not resentencing, upon a showing of a new factor. 

See State v. Harbor, 2011 WI 28, ¶33, 333 Wis. 2d 53, 797 N.W.2d 828. Thus, we construe 

Fisher’s argument as one for sentence modification as opposed to one for resentencing.

6

 We note that Fisher’s argument is in large part based on State v. Michels, 150 Wis. 2d 

94, 441 N.W.2d 278 (Ct. App. 1989), when he argues that Jana’s affidavit is “new information” 

that “clearly frustrates and strikes at the purpose of his sentence.” However, our supreme court 

stated over a decade ago, “We withdraw any language from Michels and the cases following 

Michels that suggests an additional requirement that an alleged new factor must also frustrate the 

purpose of the original sentence.” Harbor, 333 Wis. 2d 53, ¶52. We therefore reject Fisher’s 

reliance on Michels and his argument that Jana’s affidavit frustrates the purpose of his sentence.
No. 2022AP1663-CR

15

Wis. 2d 53, ¶33. However, we review “[t]he determination of whether that new 

factor justifies sentence modification” for an erroneous exercise of discretion. Id.

¶44 Fisher argues that Jana’s affidavit recanting her prior statement to 

the police and her prior testimony in which she stated that she saw Fisher with a 

firearm is a new factor that justifies sentence modification. Fisher maintains that 

whether he “had a gun or not makes or breaks the entire case” and Jana’s affidavit 

shows “that the jury’s verdict was improperly tainted” by Jana’s inaccurate 

information. We disagree. 

¶45 Jana’s current statement in her affidavit that she did not see Fisher 

with a firearm that night was not highly relevant to the imposition of Fisher’s 

sentence, and therefore, it does not constitute a new factor. See Rosado, 70 

Wis. 2d at 288. As the trial court observed, Jana’s personal observation of a 

firearm that night played no role in the sentence that Fisher received. Rather, 

Fisher’s sentence was based on the jury’s guilty verdict and the totality of the 

evidence introduced at trial that Fisher possessed a firearm that night, including

Kyle’s testimony, the testimony of Jana’s son, the bullets recovered from the 

scene, the holes in the bathroom door and the bathroom wall, and the wood 

fragments found in the bathroom. Indeed, Jana’s affidavit does nothing to 

undermine any of the additional evidence that Fisher possessed a firearm that 

night, and there exists several other pieces of evidence that Fisher did possess a 

firearm that night, even if Jana now states that she did not see—and merely 

assumed—that Fisher had a firearm.
No. 2022AP1663-CR

16

¶46 Therefore, we conclude that Fisher has failed to demonstrate that he 

is entitled to sentence modification based on a showing of a new factor.7

CONCLUSION

¶47 In sum, we reject Fisher’s claims that he is entitled to a new trial or 

resentencing based on a violation of his constitutional right to a speedy trial, 

newly-discovered evidence, or a new factor, and we affirm.

By the Court.—Judgment and order affirmed.

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

RULE 809.23(1)(b)5.

 

7

 Further, we note that Fisher has failed to develop any argument under the second 

step—that a new factor justifies sentence modification—and his argument fails for this reason as 

well. See Harbor, 333 Wis. 2d 53, ¶38.