State v. Kenneth L. Risch

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 22, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.
Appeal No. 2019AP2027-CR Cir. Ct. No. 2014CF9
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
KENNETH L. RISCH,
DEFENDANT-APPELLANT.
APPEAL from a judgment and an order of the circuit court for Taylor
County: ANN KNOX-BAUER, Judge. Affirmed.
Before Stark, P.J., Hruz and Seidl, 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. Kenneth Risch appeals a judgment convicting him
of second-degree sexual assault of a child, as a repeater, and an order denying his
No. 2019AP2027-CR
motion for postconviction relief. After revocation of his probation, Risch was
sentenced to five years’ initial confinement and seven years’ extended supervision.
On appeal, Risch argues the circuit court erroneously exercised its discretion when
imposing that sentence because it relied on improper factors—specifically,
compelled statements that Risch made to his probation agent and a treatment
provider, as well as information derived from those compelled statements. Risch
also argues his trial attorney was ineffective by failing to object to the court’s
consideration of the compelled statements and derivative information.
¶2 We conclude Risch has failed to establish that the circuit court
actually relied on any compelled statements or information derived from compelled
statements when imposing his sentence after revocation. Accordingly, Risch has
failed to show that the court actually relied on any improper factors. Consequently,
Risch’s trial attorney was not ineffective by failing to object during his sentencing
after revocation hearing. We therefore affirm.
BACKGROUND
¶3 In January 2014, Risch was charged with one count of first-degree
sexual assault of a child under age thirteen, as a repeater. The criminal complaint
alleged that Risch had sexually assaulted his girlfriend’s niece on two occasions
during the summer of 2013. The victim was eight years old at the time of the
assaults.
¶4 Risch ultimately pled no contest to second-degree sexual assault of a
child, as a repeater. That charge carried a maximum sentence of forty-two years’
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No. 2019AP2027-CR
imprisonment.1 Pursuant to the parties’ joint recommendation, the circuit court
withheld sentence and imposed an eight-year term of probation, with twelve
months’ conditional jail time.
¶5 Among other things, Risch’s rules of supervision prohibited him from
accessing the internet without prior agent approval, having “internet access or
engag[ing] in picture texting on” his phone, possessing or viewing material
depicting the intimate parts of a child or adult, and having romantic or sexual
relationships without prior agent approval. Risch was also required to provide “true,
accurate, and complete information in response to inquiries by” Department of
Corrections (DOC) staff and to submit to polygraph examinations as directed by his
agent. In addition, Risch was required to “[f]ully cooperate with, participate in, and
successfully complete all sex offender services deemed appropriate through the sex
offender evaluation process.”
¶6 On August 31, 2016, Risch submitted to a polygraph examination as
required by his rules of supervision. During the pre- and post-interview phases of
the examination, Risch admitted watching adult and bestiality pornography while
on supervision, including on his internet-capable cell phone while on Huber release
from jail; having a computer at his residence with several SD memory cards
containing pornography that he continued to use; and having sexual intercourse with
an unapproved female on several occasions. As a result, Risch’s residence was
1
Second-degree sexual assault of a child is a Class C felony, the maximum penalty for
which is forty years’ imprisonment. See WIS. STAT. §§ 939.50(3)(c), 948.02(2) (2017-18).
Because Risch was convicted of that offense as a repeater, based on three previous misdemeanor
convictions, the maximum term of imprisonment was increased to forty-two years. See WIS. STAT.
§ 939.62(1)(c) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
3
No. 2019AP2027-CR
searched and various items were seized, including three laptop computers, five SD
memory cards, and one USB memory stick.
¶7 Risch subsequently admitted that he had possessed the items seized
from his residence. He also admitted that one of the memory cards contained adult
bestiality pornography. Risch denied, however, that any of the items seized from
his residence contained child pornography. He was then given an Alternative to
Revocation (ATR), which required him to complete inpatient sex offender
treatment. Risch successfully completed an inpatient sex offender treatment
program and was discharged on March 22, 2017.
¶8 In May 2017, a digital forensic examiner from the Department of
Justice (DOJ) informed Risch’s probation agent that he had examined one of the
laptops that had been seized from Risch’s residence and found seventy-three images
of naked or partially clothed children, some of them in sexual poses. The DOJ
examiner also discovered that the most recent videos accessed using the laptop’s
Windows Media Player included videos with titles indicating that they contained
pornography involving minors. In addition, the DOJ examiner found evidence that
an internet search was conducted on Risch’s computer for “preteen fantasy stories”
in January 2016. Finally, the DOJ examiner reported that he had found numerous
pictures and videos depicting bestiality on Risch’s seized devices.
¶9 Risch’s probation was subsequently revoked. An administrative law
judge (ALJ) concluded revocation was necessary for the following reasons:
The department offered Risch an ATR for his previous
violations because at the time it was unaware of the child
pornography and he denied possessing any. His lack of
truthfulness was discovered when the DOJ examiner
conducted a forensic review of his computer; however, by
that time, Risch had successfully completed his sex offender
treatment at [Racine Correctional Institution]. As a result,
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No. 2019AP2027-CR
his issues with child pornography went unaddressed. He
provided false information to his agent and his treatment
provider about his behavior. This demonstrates a brazen
disregard for his rules of supervision that is entirely
inconsistent with community-based rehabilitation. Risch
cannot be trusted to comply with his rules or be honest with
his agent or treatment providers which makes him a poor risk
on supervision. Due to Risch’s deliberate secrecy, his
inappropriate sexual proclivity for children remains
unaddressed.
The ALJ therefore concluded that revocation of Risch’s probation was “necessary
to protect the public from further criminal activity,” and that failing to revoke
Risch’s probation “would unduly depreciate the seriousness of [his rule] violations.”
¶10 Risch appeared before the circuit court for sentencing after revocation
on September 11, 2018. The court began by asking Risch and his attorney whether
there were any inaccuracies in the revocation packet. Risch’s attorney responded
that Risch denied possessing or viewing child pornography while on probation.
¶11 Thereafter, during his allocution, Risch asserted that his case involved
“constitutional issues and some evidence issues that … should have been considered
and were not.” Risch then complained that the rule violations set forth in the
revocation packet pertained to conduct that occurred before his ATR. He asserted
that as a result of his ATR, he “went through the treatment and … took the treatment
to heart only to be turned around and slapped in the face during all of this last
revocation.” He continued, “[I]t felt like a severe punch in the gut that when I did
try to turn my life around to have facts twisted and things turned around to make it
look like I’m the largest monster that lives in Wisconsin and I prey upon children.”
Risch also suggested that the circuit court should impose a lenient sentence so that
he would be able to spend time with his nearly five-year-old daughter.
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No. 2019AP2027-CR
¶12 The circuit court ultimately sentenced Risch to five years’ initial
confinement and seven years’ extended supervision. As explained in greater detail
below, during its sentencing remarks, the court referred to statements Risch made
to his probation agent during the polygraph examination and to information derived
from those statements—specifically, information about the materials found on
Risch’s electronic devices during the forensic examination. The court also referred
to Risch’s community treatment provider’s opinion that Risch was at a high risk of
reoffending.
¶13 Risch subsequently filed a postconviction motion for resentencing.
He argued the circuit court had erroneously exercised its discretion when imposing
his sentence after revocation by relying on improper factors—namely, his
compelled statements to his probation agent and treatment provider and information
derived from those compelled statements. Risch argued the court’s reliance on the
compelled statements and derivative information violated his due process right to
be sentenced based on proper factors and his Fifth Amendment privilege against
self-incrimination. Risch also argued his trial attorney was ineffective by failing to
object to the court’s reliance on the compelled statements and derivative
information.
¶14 The circuit court denied Risch’s postconviction motion following a
Machner2 hearing. The court concluded Risch had “failed to meet his burden of
proving that the court actually relied on [his] compelled statements to his probation
agent” when imposing sentence. The court explained that although it did “reference
compelled statements made by [Risch]” during its sentencing remarks, it did so “in
response to the comments made by [Risch] and his lawyer during the sentencing
2
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
6
No. 2019AP2027-CR
hearing.” The court further concluded that Risch would have “received the same
sentence had the court made no mention of the compelled statements and their
derivative [information].”
¶15 The circuit court acknowledged that when imposing Risch’s sentence
it had considered Risch’s treatment provider’s opinion that Risch was at a high risk
of reoffending. The court concluded, however, that Risch had failed to establish
that his treatment provider’s opinion in that regard was based on any compelled
statements. The court also concluded Risch had not established that any statements
he made to his treatment provider were privileged under WIS. STAT. § 905.04(2).
¶16 Finally, the circuit court concluded that Risch’s trial attorney was not
ineffective by failing to object to the court’s references to Risch’s compelled
statements and to information derived from those statements. The court explained,
“[S]ince there was no actual reliance on compelled statements, there was no
prejudicial effect from counsel’s failure to object and therefore no ineffective
assistance of counsel.” Risch now appeals, arguing the court erred by denying his
postconviction motion for resentencing.
DISCUSSION
I. Consideration of improper sentencing factors
¶17 On appeal, we will affirm a circuit court’s sentencing decision as long
as the court did not erroneously exercise its discretion. State v. Alexander, 2015
WI 6, ¶16, 360 Wis. 2d 292, 858 N.W.2d 662. A defendant has a constitutional due
process right not to be sentenced based on improper factors. State v. Williams, 2018
WI 59, ¶51 n.15, 381 Wis. 2d 661, 912 N.W.2d 373. Accordingly, a court
erroneously exercises its discretion at sentencing when it actually relies on an
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No. 2019AP2027-CR
improper factor. Alexander, 360 Wis. 2d 292, ¶17. A defendant bears the burden
of proving, by clear and convincing evidence, that the court actually relied on an
improper factor at sentencing. Id.¶18 “Both the Fifth Amendment to the United States Constitution and
article I, section 8 of the Wisconsin Constitution provide that a person may not be
compelled in any criminal case to be a witness against himself or herself.” State v.
Peebles, 2010 WI App 156, ¶10, 330 Wis. 2d 243, 792 N.W.2d 212. The
constitutional privilege against self-incrimination “continues after a plea and
through sentencing.” Alexander, 360 Wis. 2d 292, ¶24. Thus, if a defendant is
compelled to make incriminating statements by his or her rules of supervision, those
statements may not be used against the defendant in any criminal proceeding,
including sentencing. Peebles, 330 Wis. 2d 243, ¶¶19, 21. A circuit court therefore
employs an improper factor at sentencing if it actually relies on a defendant’s
compelled statements. Alexander, 360 Wis. 2d 292, ¶24.
¶19 In order to establish that the circuit court actually relied on compelled
statements, a defendant must show that the court gave “explicit attention” to those
statements, such that they “formed part of the basis for the sentence.” Id., ¶25
(citation omitted). In other words, the defendant must show that absent the
compelled statements, the court “would not have sentenced the defendant in the
same manner.” See id., ¶27. “We review the circuit court’s articulation of its basis
for sentencing in the context of the entire sentencing transcript” to determine
whether the court actually relied on any compelled statements. Id., ¶25.
¶20 In this case, we conclude Risch has failed to prove, by clear and
convincing evidence, that the circuit court actually relied on any compelled
statements or information derived from compelled statements when imposing his
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No. 2019AP2027-CR
sentence after revocation. Risch first argues that the court actually relied on
statements he was compelled to make to his probation agent during his required
polygraph examination on August 31, 2016, regarding his use and possession of
pornography in violation of his rules of supervision. He also argues the court
actually relied on information derived from those compelled statements—
specifically, information about the contents of the computers and memory cards that
were seized from his residence as a result of his admissions during the polygraph
examination. Risch argues that based on his compelled statements and the resultant
derivative information, the court concluded he had viewed “deviant” content while
on supervision, which affected the court’s view of Risch’s character and the danger
he posed to the public.
¶21 We are not persuaded. Although the circuit court referenced the
admissions Risch made during the polygraph examination and the contents of his
electronic devices during its sentencing remarks, the mere fact that the court made
those references is insufficient to prove that the court actually relied on the
compelled statements or information derived from them when imposing Risch’s
sentence. Again, when determining whether a circuit court actually relied on
compelled statements, we must consider the court’s references to those statements
within the context of the entire sentencing transcript. See Alexander, 360 Wis. 2d
292, ¶25. Here, the sentencing transcript shows that the court merely referred to the
compelled statements and derivative information in order to address remarks Risch
and his attorney made during the sentencing hearing and to explain why Risch’s
probation had been revoked. The court did not rely on the compelled statements
and derivative information as a basis for Risch’s sentence.
¶22 As noted above, the circuit court began Risch’s sentencing after
revocation hearing by asking Risch and his attorney whether there were any
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No. 2019AP2027-CR
inaccuracies in the revocation packet. Risch’s attorney responded that Risch denied
possessing or viewing child pornography while on probation. Counsel’s response
suggested that Risch believed his probation had been improperly revoked, as
Risch’s possession of child pornography while on probation and his failure to reveal
that fact during sex offender treatment were the main reasons for the ALJ’s decision
to revoke his probation. During his allocution, Risch similarly complained that his
probation should not have been revoked because the revocation was based on issues
and facts that preceded his successful completion of the ATR.
¶23 During its subsequent sentencing remarks, the circuit court began by
addressing the seriousness of Risch’s offense. However, immediately thereafter,
the court changed course and stated, “I should go back to the revocation.” The court
then proceeded to address the complaints Risch had made about his probation
revocation during his allocution and to explain the reasons his probation had been
revoked.
¶24 Specifically, the circuit court explained that Risch’s probation was
revoked because he “did have possession of what I would define to be deviant type
of sexual information content and apparently had watched that as late as August 31st
of 2016.” The court also noted that after the forensic examination, Risch was given
an opportunity to make a statement about the evidence found on his computer and
SD memory cards, which included files whose titles suggested they contained
pornography involving teenagers and animals. The court observed that, at that
point, Risch admitted to possessing “images of a child’s diaper rash because of
complaints he was receiving from his dad regarding his daughter,” and he also
admitted “conducting internet searches for preteen sex fantasy stories and having
watched videos.” The court noted, however, that the ALJ found Risch had provided
inconsistent statements to the DOC regarding the material on the seized devices.
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No. 2019AP2027-CR
After explaining the reasons for Risch’s probation revocation, the court returned to
its discussion of Risch’s sentence after revocation by addressing his character and
the need to protect the public.
¶25 As the above summary shows, although the circuit court referred to
Risch’s compelled statements to his probation agent and information derived from
those statements during its sentencing remarks, it did so in order to address remarks
by Risch and his attorney that suggested Risch’s probation should not have been
revoked. Thus, the sentencing transcript, when viewed in its entirety, does not
support Risch’s assertion that the court actually relied on his compelled statements
to his probation agent or information derived from those statements when imposing
his sentence after revocation.
¶26 Moreover, in order to meet his burden to prove that the circuit court
actually relied on the compelled statements to his probation agent and the
information derived therefrom, Risch needed to show by clear and convincing
evidence that absent the compelled statements and derivative information, the court
“would not have sentenced [him] in the same manner.” See Alexander, 360 Wis. 2d
292, ¶27. Risch has not met that burden.
¶27 The sentencing transcript instead shows that the circuit court relied on
proper factors when imposing Risch’s sentence after revocation. A sentencing court
“must consider three primary sentencing factors: (1) the gravity of the offense,
(2) the character and rehabilitative needs of the offender, and (3) the need for
protection of the public.” State v. Samsa, 2015 WI App 6, ¶8, 359 Wis. 2d 580, 859
N.W.2d 149 (2014). Here, as noted above, the court began by considering the
gravity of Risch’s offense. The court noted that Risch had originally been charged
with first-degree sexual assault of a child; that he had been charged and convicted
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No. 2019AP2027-CR
of second-degree sexual assault of a child as a repeater; and that his offense involved
the “sexual touching” of his girlfriend’s niece, who was eight years old at the time
of the assaults. We agree with the State that although the court’s remarks regarding
the underlying offense were brief, “it is not clear what more needed to be said to
express the extraordinary gravity of [Risch’s] offense.”
¶28 After pausing to address Risch’s complaints about his probation
revocation, the circuit court then continued its sentencing remarks by addressing
Risch’s character. The court acknowledged some positive aspects of Risch’s
character—for instance, that he was a veteran and had support in the community.
Nevertheless, the court stated it was “unfortunate” that Risch, while on probation,
“didn’t come clean with whatever urges he was having and that he had possession
of these materials because the Department of Corrections could have done a lot more
for him at that point if they had known what his current status was.” The court
further stated it was “disturbing” that Risch “continues to violate the law and not
follow the rules of supervision that all led him back here.”
¶29 The circuit court acknowledged Risch’s stated desire to be with his
daughter. It explained, however, that “parents of children, especially young
children, come in and say well having that child changed my life and I have to be
there, judge … you can’t send me to prison, and that’s just more excuse making and
rationalizing as far as I can see.” The court also explained that Risch’s allegation
of an “improper court process” during his allocution was indicative of “the whole
problem that Mr. Risch has in denying what his problem is.” The court further
described Risch as having “a great level of denial.”
¶30 The circuit court then addressed the need to protect the public. The
court noted that the COMPAS evaluation showed a low to medium risk of
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No. 2019AP2027-CR
recidivism.3 However, the court observed that COMPAS is “not really that great
at” evaluating the risk of recidivism for sex offenders. The court further stated that
the results of the COMPAS evaluation “fl[ew] in the face of more particular
information”—specifically, Risch’s community treatment provider’s opinion that
Risch was “at a high risk of reoffending.”4 The court concluded:
From the comments that I have heard today and reading the
revocation packet and the history that Mr. Risch has had, he
hasn’t really fully dealt with his deviant sexual thoughts or
behaviors and so I do think that he’s at a high risk of
reoffending in the sexual arena.
¶31 Based on all of the factors discussed above, the circuit court sentenced
Risch to five years’ initial confinement and seven years’ extended supervision.
After noting that Risch was entitled to over three years of sentence credit, the court
stated it hoped that the initial confinement portion of Risch’s sentence would be
“enough time in the prison system in order to have a proper sex offender assessment
and enter treatment programs.” The court also explained that it had imposed seven
years of extended supervision so that the DOC would have time to “work with”
Risch after he was released into the community. The court concluded its sentencing
remarks by stating: “So I think it’s an appropriate sentence. It takes into account
the amount of time that he’s already served, it addresses the nature of the offense,
3
In State v. Loomis, 2016 WI 68, ¶98, 371 Wis. 2d 235, 881 N.W.2d 749, our supreme
court held that a sentencing court may consider a COMPAS evaluation at sentencing, but the
defendant’s score on the evaluation may not be determinative of the defendant’s sentence. In other
words, the COMPAS evaluation “is only one of many factors that may be considered and weighed
at sentencing,” and a sentencing court “must explain the factors in addition to a COMPAS risk
assessment that independently support the sentence imposed.” Id., ¶99.
In this case, Risch does not argue that the circuit court improperly relied on the COMPAS
evaluation when imposing his sentence after revocation. As such, we do not address that issue.
4
As explained below, the circuit court could properly rely on Risch’s treatment provider’s
opinion because there is no evidence that opinion was based on any compelled, incriminating
statements.
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No. 2019AP2027-CR
his status as a repeater, his prior character and the problems that he’s having, [and]
the need to protect the public as well.”
¶32 When considered as a whole, the circuit court’s sentencing remarks
show that the court relied on proper factors when sentencing Risch. Although the
court referred to Risch’s compelled statements to his probation agent and
information derived from those statements, it did so in response to Risch’s
complaints about his probation revocation, not as a basis for Risch’s sentence after
revocation. Ultimately, the proper factors the court relied on at sentencing provided
an ample basis for its decision to impose a sentence of five years’ initial confinement
and seven years’ extended supervision—which was far less than the maximum
forty-two-year sentence the court could have imposed.
¶33 Under these circumstances, Risch has not shown that either his
compelled statements to his probation agent or information derived from those
statements “formed part of the basis for [his] sentence” such that, absent the
statements and information, the court would not have sentenced him in the same
manner. See Alexander, 360 Wis. 2d 292, ¶¶25, 27 (citation omitted). Risch has
therefore failed to prove, by clear and convincing evidence, that the court actually
relied on the compelled statements and derivative information when imposing his
sentence after revocation.
¶34 Risch also argues that the circuit court erred by relying on his
treatment provider’s opinion that he had a high risk of reoffending. Risch notes that
his rules of supervision required him to participate in sex offender treatment. As
such, he argues that any statements he made to his treatment provider were
compelled. He further argues that his treatment provider’s opinion about his risk of
reoffense was derived from those compelled statements and therefore constituted an
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No. 2019AP2027-CR
improper factor for the court to consider when imposing his sentence after
revocation.
¶35 Risch’s argument regarding his treatment provider’s opinion fails
because he does not identify any incriminating statements that he made to his
treatment provider. In addition, Risch cites no evidence that his treatment
provider’s opinion about his risk of reoffense was based on any incriminating
statements he may have made. Risch has therefore failed to show that his treatment
provider’s opinion was an improper factor for the circuit court to consider at
sentencing.
¶36 In his reply brief, Risch acknowledges that he has not identified any
specific incriminating statements that he made to his treatment provider. He asserts
that because his sessions with his treatment provider were not transcribed, “no
record of any specific statements is available.” He argues, however, that “it seems
logically irrefutable that the opinion of the treatment provider was based on the
contents of the compelled sessions.”
¶37 Risch’s argument is unpersuasive. His treatment provider’s opinion
regarding his risk of reoffense could have been based on a variety of things,
including Risch’s criminal file or information provided by third parties. In support
of his postconviction motion, Risch could have submitted evidence indicating the
basis for his treatment provider’s opinion, but he failed to do so. On the record
before us, there is simply no evidence to support a conclusion that the treatment
provider’s opinion was based on any incriminating statements Risch may have made
during required treatment sessions.
¶38 A comparison of this case with State v. Mark, 2008 WI App 44, 308
Wis. 2d 191, 747 N.W.2d 727, is instructive. Mark, a sex offender who was on
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No. 2019AP2027-CR
parole, admitted in compelled statements to his parole agent that he attempted to
forcibly enter a woman’s hotel bathroom while she yelled for him to get out. Id.,
¶¶4-6. The State subsequently sought to commit Mark as a sexually violent person.
Id., ¶4. At Mark’s commitment hearing, two psychiatrists testified it was “more
likely than not” that Mark would reoffend, and it was clear from their testimony that
they had relied on his statements about the hotel incident in reaching their opinions.
Id., ¶¶8, 43. In particular, both psychiatrists testified that without the hotel incident,
Mark would have received lower scores on the actuarial instruments that they had
used to estimate his risk of reoffense. Id., ¶43. On appeal, we concluded the
psychiatrists’ opinions regarding Mark’s likelihood of reoffense should have been
excluded because Mark had shown that they were derived from specific compelled
statements. Id., ¶44.
¶39 Here, unlike in Mark, Risch has not pointed to any specific compelled
statements that his treatment provider relied upon in determining his risk of
reoffense. We therefore reject Risch’s argument that his treatment provider’s
opinion was an improper factor for the circuit court to consider at sentencing.
¶40 Risch also argues that the circuit court should not have relied on his
treatment provider’s opinion because it was based on statements that were
privileged under WIS. STAT. § 905.04(2). The privilege set forth in that statute,
however, applies only to “confidential communications made or information
obtained or disseminated for purposes of diagnosis or treatment of the patient’s
physical, mental or emotional condition.” Id. Risch has not established that he
made any confidential statements to his treatment provider that were not intended
to be disclosed to third parties, nor has he shown that his treatment provider’s
opinion regarding his risk of reoffense was based on any such statements. We
therefore reject Risch’s argument that the court could not consider his treatment
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No. 2019AP2027-CR
provider’s opinion because it was based on statements that were privileged under
§ 905.04(2).
¶41 In summary, we conclude Risch has failed to establish that the circuit
court actually relied on any improper factors when imposing his sentence after
revocation. Although the court mentioned Risch’s compelled statements to his
probation agent and information derived from those statements during its sentencing
remarks, Risch has not met his burden to show that the court actually relied on those
statements or that information when imposing his sentence. And while the court
clearly relied on Risch’s treatment provider’s opinion regarding his risk of
reoffense, Risch has not shown that that opinion was based on any compelled,
incriminating statements he made to his treatment provider. As such, Risch has not
shown that the court erroneously exercised its discretion by relying on improper
factors when imposing his sentence after revocation.
II. Ineffective assistance of counsel
¶42 Whether an attorney rendered ineffective assistance is a mixed
question of fact and law. State v. Nielsen, 2001 WI App 192, ¶14, 247 Wis. 2d 466,
634 N.W.2d 325. We will uphold the circuit court’s findings of fact unless they are
clearly erroneous. Id. However, whether the defendant’s proof is sufficient to
establish ineffective assistance is a question of law that we review independently.
Id. To prevail on an ineffective assistance claim, a defendant must show both that
counsel’s performance was deficient and that the deficient performance prejudiced
the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).
¶43 Risch’s trial attorney did not object during his sentencing after
revocation hearing when the circuit court referred to Risch’s compelled statements
and information derived from those statements. On appeal, Risch asserts it was not
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No. 2019AP2027-CR
necessary for his trial attorney to object to the court’s remarks in order to preserve
Risch’s improper factor argument for appeal. In support of that proposition, Risch
cites our supreme court’s recent decision in State v. Counihan, 2020 WI 12, 390
Wis. 2d 172, 938 N.W.2d 530. In the alternative, Risch argues that if an objection
was required to preserve his improper factor argument for review, his trial attorney
was ineffective by failing to object to the court’s consideration of improper factors.
¶44 The State, for its part, does not argue that Risch forfeited his argument
regarding the circuit court’s consideration of improper factors. Instead, the State
argues Risch has failed to show that the court actually relied on any improper factors
when imposing his sentence after revocation. The State therefore argues that,
because the court did not rely on any improper factors, Risch’s trial attorney was
not ineffective by failing to object.
¶45 Ultimately, we need not address whether Risch forfeited his argument
regarding the circuit court’s consideration of improper factors at sentencing. For
the reasons explained above, we conclude Risch has failed to show that the court
actually relied on any improper factors. Thus, even if an objection was required to
preserve Risch’s improper factor argument for review, Risch’s trial attorney did not
perform deficiently by failing to object, nor did that failure prejudice Risch’s
defense. See State v. Wheat, 2002 WI App 153, ¶23, 256 Wis. 2d 270, 647 N.W.2d
441 (trial counsel’s failure to raise a meritless argument does not constitute deficient
performance); see also State v. Simpson, 185 Wis. 2d 772, 784, 519 N.W.2d 662(Ct. App. 1994) (a defendant is not prejudiced by trial counsel’s failure to raise an
argument that would not have been successful). We therefore reject Risch’s
ineffective assistance of counsel claim.
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No. 2019AP2027-CR
By the Court.—Judgment and order affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.
19