COURT OF APPEALS

DECISION

DATED AND FILED

September 19, 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. 2023AP924-CR Cir. Ct. No. 2019CF33

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

DANIEL L. LANDIS,

 DEFENDANT-APPELLANT.

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

County: BARBARA W. MCCRORY, Judge. Affirmed.

Before Graham, Nashold, and Taylor, 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. 2023AP924-CR

2

¶1 PER CURIAM. Daniel L. Landis appeals his judgment of 

conviction for second-degree recklessly endangering safety, contrary to WIS.

STAT. § 941.30(2) (2021-22),

1

as well as the circuit court’s order denying his 

postconviction motion to withdraw his guilty plea. On appeal, Landis asserts that 

he is entitled to withdraw his plea on two related grounds. First, he contends that 

the plea lacked a factual basis—according to Landis, the facts in the record failed 

to establish that he endangered the safety of another person. Second, Landis

contends that trial counsel was ineffective for stipulating to a factual basis during 

the plea hearing, and for failing to move to dismiss the charge. We reject Landis’s 

arguments and affirm.

BACKGROUND

¶2 The following summary of facts about Landis’s crime is derived 

from the criminal complaint. After attempting to rob a bank in downtown 

Janesville, Landis fled the scene on his motorcycle. Officer Grunewald, who had 

been dispatched to the bank, observed Landis ride away and pursued in his squad 

car. During the pursuit, Landis drove his motorcycle over the curb and onto the 

sidewalk in front of several businesses. Grunewald lost sight of Landis for a 

period of time, but then located Landis again at a stoplight. When Grunewald

pulled his squad car in front of Landis and activated his emergency lights, Landis

“immediately took off.”

¶3 Grunewald continued to pursue Landis, and other officers including 

Officer Briggs joined in the chase. Briggs observed Landis as he failed to stop at 

 

1

 All references to the Wisconsin Statutes are to the 2021-22 version. 
No. 2023AP924-CR

3

red lights, traveled through downtown and residential areas at speeds in excess of

50 miles per hour (twice the legal limit), and cut through a gas station and the 

parking lot of a hardware store at a high rate of speed. Briggs placed his squad car 

in Landis’s path, but Landis drove his motorcycle up onto the sidewalk around the 

squad car, and then turned into a residential driveway and drove into the backyard 

of the residence. At that point, the officers were able to apprehend Landis at 

gunpoint.

¶4 The State ultimately charged Landis with the following crimes, all 

with repeater enhancers: attempted theft from a financial institution; disorderly 

conduct; second-degree recklessly endangering safety; attempting to flee or elude 

an officer; and obstructing an officer.

¶5 At the preliminary hearing, the State presented testimony from

Officer Briggs. Briggs’s testimony was consistent with the above-described 

allegations from the complaint. Briggs also testified that he observed Landis drive 

at speeds of 50 to 60 miles per hour and disregard two red lights, and that the 

chase ended when Landis’s motorcycle collided with a fence in a residential 

backyard. According to Briggs, the chase had occurred “midday,” shortly before 

noon; “there was a lot of traffic” on the road at that time; and the officers

“obviously had to slow down for cross traffic” as they pursued Landis. The court 

bound Landis over for trial.

¶6 The parties then entered into a plea agreement. Pursuant to the 

agreement, Landis would plead guilty to the charge of second-degree recklessly 

endangering safety without the repeater enhancer (hereinafter, the “reckless 

endangerment charge”). In exchange, the State would dismiss the remaining 
No. 2023AP924-CR

4

charges, which would be read in at sentencing. The effect of the agreement was to 

significantly reduce the total maximum sentence Landis faced.

¶7 Prior to the plea hearing, Landis conferred with trial counsel and 

signed a plea questionnaire/waiver of rights form. Attached to that form was a 

copy of the pattern jury instructions for the reckless endangerment charge, WIS 

JI—CRIMINAL 1347, which identified the two elements that the State would have 

been required to prove at trial: that Landis endangered the safety of another 

human being; and that Landis did so by criminally reckless conduct. The pattern 

instructions further explained that “criminally reckless conduct” means conduct 

that created a risk of death or great bodily harm to another person; that the risk

was unreasonable and substantial; and that Landis was aware that his conduct 

created the unreasonable and substantial risk.

¶8 During the plea hearing, the circuit court conducted a plea colloquy

and made certain inquiries. Landis stated that he had had enough time to discuss 

the matter with trial counsel and was entering the plea knowingly, intelligently, 

and voluntarily. The court reviewed the elements of the reckless endangerment 

charge. Landis stated that he understood the elements of the offense, and further 

understood that, by entering a guilty plea, he was admitting that the elements were 

satisfied and was giving up the right to make the State prove those elements 

beyond a reasonable doubt. The court turned to trial counsel, who stated that he 

had discussed the plea questionnaire/waiver of rights form with Landis, and that 

Landis was “very familiar” with the elements of reckless endangerment. Trial 

counsel stated that he believed that Landis’s plea was knowing, intelligent, and 

voluntary.
No. 2023AP924-CR

5

¶9 The circuit court then asked Landis whether he agreed that there was 

a factual basis in the criminal complaint for the elements of reckless 

endangerment, and Landis equivocated. Specifically, Landis stated: “Maybe 

borderline. It would be a close call under the circumstances, which is part of why 

we entered into a plea agreement.” The court followed up by asking whether

Landis would agree that there was “some activity” alleged in the complaint that 

could constitute reckless endangerment, and Landis responded, “Yes. I know 

what you’re getting at.”

¶10 The circuit court then turned to trial counsel and the prosecutor, who 

both indicated that, in their opinions, the allegations in the complaint provided a 

factual basis for the charge. The court indicated that, based on its own review of 

the criminal complaint, it had determined that the complaint set forth a factual 

basis from which it could accept Landis’s plea. The court further determined that

Landis’s plea was made “freely, voluntarily, knowingly, and intelligently,” and it 

accepted Landis’s plea and adjudicated him guilty.

¶11 Following the plea hearing, the circuit court ordered a presentence 

investigation (PSI). In the section for a victim’s statement, the PSI author wrote 

the following: “Although there is not a direct victim in this case, it should be 

noted that the community as a whole was a victim when Mr. Landis made the 

decision to attempt to elude law enforcement by disobeying the speed limit, traffic 

signs and/or signals and driving erratically through the city of Janesville[.]”

¶12 During the sentencing hearing, counsel used the lack of any specific 

victim identified in the complaint to argue for a more lenient sentence. Counsel 

argued that, although Landis disregarded red lights and committed other 

infractions, there was no allegation that there was oncoming traffic, nor that any 
No. 2023AP924-CR

6

person had to take evasive action to avoid being hit. Counsel argued that “this is 

not an aggravated fleeing activity because nobody but Mr. Landis [was] actually 

endangered during the process.”

¶13 The circuit court disagreed with trial counsel’s assessment of 

Landis’s crime. It observed that Landis had been “fortunate” that no one other 

than himself had been hurt, and that Landis had endangered “unsuspecting people” 

when he disregarded traffic signals and drove up on sidewalks that were “meant 

for pedestrians.” The court sentenced Landis to a bifurcated term of eight years, 

consisting of four years of initial confinement and four years of extended 

supervision.

¶14 Landis then filed the postconviction motion that is the subject of this 

appeal. As noted, the motion sought plea withdrawal, and argued that it would be 

a manifest injustice to allow Landis’s plea to stand. According to Landis’s 

motion, there was no factual basis for the reckless endangerment charge, and trial 

counsel should not have stipulated to a factual basis and should have instead 

moved to dismiss the charge.

¶15 The circuit court held a Machner hearing on Landis’s postconviction 

motion, and trial counsel testified as follows.

2

 During counsel’s representation of 

Landis, they discussed the elements of the reckless endangerment charge, and

specifically discussed the possibility of moving to dismiss that charge. Landis 

 

2

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

hearing is “[t]he evidentiary hearing to evaluate counsel’s effectiveness, which includes counsel’s

testimony to explain [counsel’s] handling of the case.” State v. Balliette, 2011 WI 79, ¶31, 336 

Wis. 2d 358, 805 N.W.2d 334.
No. 2023AP924-CR

7

may have told counsel that he did not remember seeing any drivers or pedestrians 

who were endangered by his conduct, and Landis may have wanted counsel to file

a motion to dismiss the charge. However, counsel did not think a motion would 

be appropriate because, in his assessment, there was probable cause for the charge. 

Turning to the plea hearing, counsel stipulated that there was a factual basis for the 

charge based on his belief that the facts from the criminal complaint and the

preliminary hearing were sufficient to establish a factual basis, and because Landis 

had made the decision to agree to the terms of the negotiated plea deal. “[A]s a 

part of that process,” counsel explained, “you need to stipulate that there’s a 

factual basis. If not, then there is no plea.”

¶16 The circuit court denied Landis’ postconviction motion. In so doing, 

the court credited trial counsel’s testimony, and concluded that there was a factual 

basis for Landis’s plea. As the court explained, the facts and the reasonable 

inferences that could be drawn and the complaint and the preliminary hearing

testimony supported a determination that Landis “endangered the safety of another 

human being.” The court specifically referenced the dangerous manner in which 

Landis drove, the time of day, and the location of the chase, and the court inferred 

that “cars were driving with a green light,” that “[p]edestrians might have been 

crossing the street,” and that “[p]eople [were] walking through [the] parking lots 

[that Landis drove through].”

¶17 The circuit court further concluded that trial counsel did not perform 

deficiently by declining to file a motion to dismiss the reckless endangerment 

charge. It concluded that counsel’s “decision to not file that motion” was 

reasonable “under the circumstances” and “well within the normal and reasonable 

conduct of a criminal defense attorney,” and that any motion to dismiss the charge

would have failed.
No. 2023AP924-CR

8

¶18 Landis appeals.3

DISCUSSION

¶19 A defendant seeking to withdraw a guilty plea after sentencing bears 

a heavy burden, and must establish by clear and convincing evidence that 

withdrawal of the plea is necessary to correct a manifest injustice. State v. Nash, 

2020 WI 85, ¶¶31-32, 394 Wis. 2d 238, 951 N.W.2d 404.4 “[O]ne type of 

manifest injustice is the failure of the [circuit] court to establish a sufficient factual 

basis that the defendant committed the offense to which he or she pleads.” Id., 

¶32 (citation omitted). Another type of manifest injustice occurs if the defendant 

was deprived of the effective assistance of counsel. See State v. LeMere, 2016 WI 

41, ¶23, 368 Wis. 2d 624, 879 N.W.2d 580. Landis argues that he should be 

allowed to withdraw his guilty plea because there was no factual basis that he 

committed the offense and because his counsel was ineffective. We address these

arguments in turn.

 

3

 Landis’s brief does not comply with WIS. STAT. RULE 809.19(8)(bm), which addresses 

the pagination of appellate briefs. See RULE 809.19(8)(bm) (providing that, when paginating 

briefs, parties should use “Arabic numerals with sequential numbering starting at ‘1’ on the 

cover”). This rule has recently been amended, see S. CT. ORDER 20-07, 2021 WI 37, 397 Wis. 2d 

xiii (eff. July 1, 2021), and the reason for the amendment is that briefs are now electronically filed 

in PDF format, and are electronically stamped with page numbers when they are accepted for 

efiling. As our supreme court explained when it amended the rule, the new pagination 

requirements ensure that the numbers on each page of a brief “will match ... the page header 

applied by the eFiling system, avoiding the confusion of having two different page numbers” on 

every page of a brief. S. CT. ORDER 20-07 cmt. at xl.

4

 A different standard applies for defendants who seek to withdraw their plea prior to 

sentencing. See State v. Nash, 2020 WI 85, ¶31, 394 Wis. 2d 238, 951 N.W.2d 404 (explaining 

that the fair and just reason standard applies pre-sentencing).
No. 2023AP924-CR

9

I. Factual Basis

¶20 Before accepting a guilty plea, a circuit court must, among other 

things, “personally ascertain whether a factual basis exists to support the plea.” 

Bangert, 131 Wis. 2d at 262; see also WIS. STAT. § 971.08(1)(b) (requiring the 

court to “make such an inquiry as satisfies it that the defendant in fact committed 

the crime charged.”). The purpose of establishing a factual basis is to “protect a 

defendant” from voluntarily pleading guilty to a charge “without realizing that [the 

defendant’s] conduct does not actually fall within the charge.” See State v. 

Thomas, 2000 WI 13, ¶14, 232 Wis. 2d 714, 605 N.W.2d 836 (citations omitted).

¶21 A “factual basis for a plea may be established by reference to the 

allegations set forth in the criminal complaint,” State v. Sutton, 2006 WI App 118, 

¶17, 294 Wis. 2d 330, 718 N.W.2d 146, or by reference to other record sources 

such as witness testimony and police reports, Thomas, 232 Wis. 2d 714, ¶20. A 

factual basis exists when the allegations, if true, establish the elements of the 

crime charged, but the “inference of guilt need not be established beyond a 

reasonable doubt.” State v. Scott, 2017 WI App 40, ¶29, 376 Wis. 2d 430, 899 

N.W.2d 728. If the guilty plea is made pursuant to a plea bargain, as it was here, 

the circuit court “need not go to the same lengths to determine whether the facts 

would sustain the charge as it would where there is no negotiated plea.” Broadie 

v. State, 68 Wis. 2d 420, 423-24, 228 N.W.2d 687 (1975).

¶22 As stated, Landis contends that there was no factual basis for his 

plea to the reckless endangerment charge. To the extent that Landis is arguing that 

the circuit court failed to fulfill its mandatory duty of ascertaining a factual basis 

for the plea, we disagree. The transcript from the plea hearing unequivocally 

establishes that the court considered whether there was a factual basis for the plea 
No. 2023AP924-CR

10

and determined that there was. Although Landis equivocated, he ultimately 

acknowledged that there was a factual basis for the charge, and trial counsel 

agreed with that assessment. The court could have accepted either of these 

stipulations as the factual basis for the plea, Thomas, 232 Wis. 2d 714, ¶18, but

the court went further, specifically noting that, based on its independent review of 

the record facts, there was a factual basis for the plea.

¶23 We conclude that the circuit court’s inquiry was sufficient, 

particularly in this context in which Landis was pleading guilty pursuant to a 

negotiated plea agreement. See Broadie, 68 Wis. 2d at 423-24. Landis has never 

claimed that he misunderstood the elements of the reckless endangerment charge,

and this is not a situation in which Landis might have unwittingly entered into a 

plea bargain “without realizing that his conduct does not actually fall within the 

charge.” See Thomas, 232 Wis. 2d 714, ¶14.

¶24 To the extent that Landis is instead arguing that the circuit court’s 

factual basis determination was clearly erroneous, we also disagree. Nash, 394 

Wis. 2d 238, ¶28 (we will not overturn a circuit court’s factual basis determination 

unless it is clearly erroneous). The complaint and the preliminary hearing 

testimony both provide factual support for a determination that Landis was making 

dangerous maneuvers on his motorcycle as he attempted to evade the squad cars

that were pursuing him through downtown Janesville. These maneuvers included

disregarding red lights, driving on pedestrian sidewalks, and cutting through 

commercial parking lots at a high rate of speed. According to the transcript from 

the preliminary hearing, there was significant midday downtown traffic, and the 

officers could not pursue Landis at the speed at which he was travelling due to the 

risk of endangering traffic. At the plea hearing stage, a circuit court is allowed to

consider any “inculpatory inferences” that could be made based on the facts in the 
No. 2023AP924-CR

11

record. See State v. Black, 2001 WI 31, ¶16, 242 Wis. 2d 126, 435, 624 N.W.2d 

363 (2001) (citing State v. Spears, 147 Wis. 2d 429, 435, 433 N.W.2d 595 (Ct. 

App. 1988)). Although there are not any specific persons identified in the record

who were endangered by Landis’s conduct, the court could reasonably infer that 

his dangerous maneuvers endangered the safety of other persons, especially given 

the time of day in which the chase occurred and the downtown and residential 

neighborhoods through which Landis fled.

¶25 We now consider Landis’s counterarguments. First, Landis suggests

that it is not enough to rely on inferences about pedestrians and traffic to establish 

a factual basis for the reckless endangerment charge, and the State must instead be 

able to identify specific persons who were endangered by Landis’s actions. Yet 

Landis fails to cite any legal authority to support that proposition, and we reject 

Landis’s argument on that basis. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 

N.W.2d 633 (Ct. App. 1992) (we need not address undeveloped arguments).

¶26 Second, Landis may be suggesting that a properly instructed jury 

would not have found him guilty of reckless endangerment unless the State 

presented more detail about specific persons who were endangered by his actions. 

That may be so, but it does not undermine the circuit court’s conclusion that there 

was a factual basis for Landis’s plea. We will never know what evidence would 

have been produced at trial, nor whether a jury would have convicted Landis based 

on that evidence, because Landis opted to plead guilty rather than to go to trial. 

And even if a jury might have acquitted Landis of this charge, that does not mean 

that there was no factual basis to support his plea.

¶27 Finally, Landis makes a series of arguments suggesting that his 

driving was not that dangerous. For example, he argues that the officers were able 
No. 2023AP924-CR

12

to keep up with him as he fled, which shows that he was not actually driving all 

that fast. He also asserts that it is unreasonable to infer that he could have hurt 

anyone on his motorcycle because he was driving an “older off-road motorcycle,” 

which, he contends, “does not pose the same danger as a standard sedan or even a 

larger motorcycle would.” These arguments are not persuasive. “A factual basis 

for acceptance of a plea exists if an inculpatory inference can reasonably be drawn 

by a jury from the facts ... even if an exculpatory inference could also be 

drawn[.]” Spears, 147 Wis. 2d at 435. Accordingly, Landis cannot undermine the 

circuit court’s factual-basis determination merely by pointing out that some of the 

facts relied on could be viewed in a different light.

II. Ineffective Assistance

¶28 We now turn to Landis’s ineffective assistance of counsel claim. To 

prevail, Landis must prove “that counsel’s performance was deficient” and that 

“the deficient performance prejudiced the defense.” Strickland v. Washington, 

466 U.S. 668, 687 (1984). A defendant has the burden on both prongs of the 

Strickland test, and if the defendant “fails to adequately show one prong ..., we 

need not address the [other].” State v. Elm, 201 Wis. 2d 452, 462, 549 N.W.2d 

471 (Ct. App. 1996).

¶29 We begin with Landis’s argument that his trial counsel performed 

deficiently at the plea hearing by stipulating that there was a factual basis for the 

reckless endangerment charge. We disagree. Counsel had at least two good 

reasons for stipulating that there was a factual basis for the charge. First, like the 

circuit court, counsel could reasonably determine that the facts in the record 

established a factual basis for the plea. Second, the plea agreement offered by the 

State significantly reduced Landis’s potential exposure to incarceration, and 
No. 2023AP924-CR

13

Landis told counsel that he wanted to accept the State’s offer. We conclude that 

counsel was not ineffective for agreeing that there was a factual basis for the 

charge to which Landis pleaded.

¶30 Separately, Landis also argues that trial counsel performed 

deficiently by declining to move to dismiss the reckless endangerment charge.5

As we understand it, the circuit court credited Landis’s allegation that he wanted

counsel to file such a motion, and further credited counsel’s testimony that he 

declined to do so because he believed any such motion would have been

unsuccessful.

¶31 It is well established that trial counsel does not perform deficiently 

by failing to file a motion that would have been denied. State v. Sanders, 2018

WI 51, ¶29, 381 Wis. 2d 522, 912 N.W.2d 16. Nor does counsel perform 

deficiently by failing to file a motion based on unsettled law. State v. Jackson, 

2011 WI App 63, ¶10, 333 Wis. 2d 665, 799 N.W.2d 461. Thus, to show that 

counsel performed deficiently, Landis has the burden to demonstrate that a motion 

to dismiss the reckless endangerment charge would have been meritorious.

¶32 Landis fails to satisfy that burden. In the circuit court and on appeal, 

Landis implies that a motion to dismiss would have succeeded because the 

complaint failed to identify any specific person who was endangered by his 

conduct. Yet, as we have discussed, Landis does not cite any legal authority to 

support this assertion. Thus, the law on this topic is unsettled at best, and under 

 

5

 Under some circumstances, a circuit court can dismiss criminal charges if they are not 

supported by probable cause. See, e.g., State v. Thiel, 183 Wis. 2d 505, 541-42, 515 N.W.2d 847

(1994).
No. 2023AP924-CR

14

the circumstances, we agree with the circuit court that counsel’s “decision to not 

file that motion” was “well within the normal and reasonable conduct of a criminal 

defense attorney.” See id., ¶10 (“When the law is unsettled, the failure to raise an 

issue is objectively reasonable and therefore not deficient performance.”).

CONCLUSION

¶33 For all these reasons, we conclude that the circuit court did not err 

when it denied Landis’s motion to withdraw his plea.

By the Court.—Judgment and order affirmed.

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

RULE 809.23(1)(b)5.